R v. Ferguson

[2009] QDC 158

[2009] QDC 158

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE ROBIN QC

Indictment No 1227 of 2007

THE QUEEN

v.

DENNIS RAYMOND FERGUSON

BRISBANE

..DATE 23/02/2009

ORDER

CATCHWORDS: 

Criminal Code Act 1899 s 614, s 615

Application for permanent stay refused. 

CRIMINAL LAW – PROCEDURE – trial had before judge without jury - application for trial by judge alone

HIS HONOUR:  This is the third application by the defendant
for a permanent stay of a charge of indecent treatment of a
child some years ago.  The first such application before
Judge Forno which, I understand, was based on the amount of
adverse pretrial publicity, was unsuccessful. 

On the 1st of July last year a similar application following more publicity was successful, but the permanent stay order didn't survive an Attorney's appeal to the Court of Appeal, which can be found reported at [2008] QCA 277. The Court of Appeal's reasons came out on the 8th of August 2008, a month and 11 days before amendments to the Criminal Code in section 614 and following came into effect. Those amendments have significantly changed things.

There was an unsuccessful application to the High Court of
Australia for special leave to appeal against the Court of Appeal's determination. As I read the transcript, [2009] HCATrans 16, no guidance for today's purposes is to be found there. The High Court considered that there was insufficient doubt regarding the Court of Appeal's view that, notwithstanding the absence of a specific provision in the legislation, section 669A(1A) of the Code, enabling the Court of Appeal to make orders, power to do was necessarily there to warrant the granting of special leave.

The Court of Appeal has left open the way for an application,
such as today's, to be made.  The determination was that the
primary Judge had considered at least one matter which he
ought not to have, namely the weakness of the prosecution case
from some points of view.  It was also determined that his
Honour, although not asked to do so, ought to have given
consideration to section 47 of the Jury Act.

What is of concern is providing the accused person with a fair
trial which, in the present context, would mean one before a
jury, none of whom was "overwhelmed by a perception that the
expectation of the community is that the respondent must be
convicted whatever the witnesses and the Crown case may be,"
to quote paragraph 57 of the Court of Appeal's judgment.

The Court of Appeal expressed confidence, which courts
customarily do, that juries "are aware consciously or
subconsciously of the long tradition in this country of
criminal trials in which 12 impartial men and women are the
deciders of fact of the unquestioned integrity of the process
and its importance to society's fabric" – I have quoted
paragraph 43 of the reasons – and that a jury properly
instructed could be relied on to avoid giving effect to
whatever residual impressions they might have of the adverse
pretrial publicity, which, I accept for the purposes of today,
has continued, although that has not been specifically
demonstrated in evidence placed before me.

In paragraph 55, the Court of Appeal expressed the view that
the conclusion the subject of the appeal that the accused
couldn't be convicted on the basis of a fair-minded verdict of
a jury was premature, making reference then to section 47 of
the Jury Act.  An example given in the section attached to
subsection (1) indicates the legislature's recognition that
“prejudicial pretrial publicity may be a special reason for
questioning persons selected as jurors or reserve jurors in
the final stage of the jury selection process”.  Questioning
is to be controlled by the presiding judge.  The purpose is to
ascertain the impartiality or otherwise of those who have been
provisionally empanelled.

As I read the Court of appeal's decision, it's not open to me
to reach a conclusion that a fair trial is not possible before
section 47 is "deployed", see paragraph 56.

This is also a significant piece of assistance for me in
footnote 15, which indicates that apart from a decision more than 70 years old in the Northern Territory, there seems to be no instance in Australia of a permanent stay being ordered because of pretrial publicity.  The footnote goes on to note a couple of exceptions in England to the proposition in that jurisdiction.

It appears to me that I'm constrained by the Court of Appeal's
decision to reject the application for a permanent stay.
Section 47 has not been invoked, nor has the possibility of
pretrial publicity being dissipated that's referred to in
paragraph 58 of the reasons really been looked at.  For what it's worth, my own impression is that in recent times, the
extent of publicity has declined.  Notwithstanding that there is likely to be available on the internet everything which has ever been available there.

In the circumstances, I won't accede to the application for a
permanent stay, although for the future, it might be noted
that section 615(4)(c) of the Criminal Code represents what may prove to be an important acknowledgement by the legislature of the importance of significant pretrial publicity that may affect jury deliberations.

There's no opposition by the prosecution to a no jury order
being made under section 615. I am in no doubt that the
condition set out in subsection (4)(c) is satisfied here. There have been a number of orders whose effect is that there will be trial by Judge alone, the most helpful of which is Clough [2008] QSC 307 in which Mackenzie J published extensive reasons.

Those were acknowledged by Judge Robertson in the Queen v.
SAA [2009] QDC 5, when a no jury order was made in respect of
a count of maintaining an unlawful sexual relationship to
which an offender who had pleaded guilty to four counts of
indecent dealing had pleaded not guilty.  There were some
technical aspects of the maintaining offence which his Honour
thought it might be preferable to have dealt with by a Judge.
He was also fortified by the removal from the proceeding of a
possible issue about indecency which section 615 (5) indicates
is something requiring the application of objective community
standards which, in normal circumstances, a jury ought to
pronounce upon rather than a judge sitting alone.  The reasons in SAA, and I think Clough bear on this aspect which causes me some concern.

Although Mr Smith in support of the application is not in a
position to concede that the conduct which the Crown relies on
represented indecent treatment of the complainant, assuming it
happened, it is almost inconceivable that that can really be
an issue at trial.

What's asserted is that a man of mature years digitally
interfered with the genitalia of a very young girl.  In a
practical sense it seems to me there is no issue whether by
ordinary community standards that was indecent treatment.  In
my opinion, it clearly was, subject to defences that the
prosecution might find itself have to negative by way of
accident or mistake, et cetera.

The issue in the trial is likely to be whether if the
complainant suffered the treatment which she told the police
she did, that was perpetrated by the defendant or, as her
cross-examination in the pre-recording has it, not by him at
all but by another man who was there, and also, if I
understand things correctly, one who may have been convicted
for something similar in the past.

For these reasons, I think that given the prosecution's
attitude, it's in the interests of justice and a fair trial
for the defendant for the no jury order to be made.  The
possibility of that which the Criminal Code now offers
provides an important avenue for assuring that an accused
person can, by resort to that mode, get a fair trial which may
arguably not be available before a jury because of things
which have happened.

The third aspect of the application before me concerns the
excluding of the complainant's evidence in re-examination
which involved the desired response to a leading question by
the prosecutor suggesting that it was the accused and not the
other person after all who had been responsible for the
conduct complained of.

If there is to be a trial before a Judge alone it seems to me
preferable for the determination of the admissibility of that
evidence in re-examination to be determined at the trial.

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