R v. Ferguson - [2009] QDC 158

[2009] QDC 158

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE ROBIN QC

Indictment No 1227 of 2007

THE QUEEN

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v. Ferguson

Details

AGLC: R v Ferguson [2009] QDC 158
Case: [2009] QDC 158
Decision Date: 23 February 2009

CaseChat Overview and Summary

In the case of R v. Ferguson, the defendant Dennis Raymond Ferguson was charged with indecent treatment of a child. This case came before the District Court of Queensland, presided over by Judge Robin QC. Ferguson had previously attempted to have the charges permanently stayed due to what he claimed was excessive pretrial publicity, an effort that had failed on two previous occasions. The crux of the legal dispute in this case was whether the defendant's right to a fair trial would be compromised by the pretrial publicity, and if so, whether this warranted a permanent stay or a trial by judge alone.

The court examined the implications of the amendments to section 614 of the Criminal Code, which had recently been altered to allow for more flexible trial arrangements in light of significant pretrial publicity. The court also considered the Court of Appeal's previous ruling that the original judge had erred by not considering certain factors, including the potential impact of pretrial publicity on the jury's impartiality. The court had to weigh the need to ensure a fair trial against the procedural constraints imposed by the Court of Appeal's decision.

After thorough deliberation, the court concluded that it could not grant the application for a permanent stay due to the Court of Appeal's directive that the original judge should have considered the potential effects of pretrial publicity more fully. The court found that it was not yet in a position to conclude that a fair trial was impossible, given that the procedures outlined in section 47 of the Jury Act had not yet been fully explored. The court also noted that the potential for pretrial publicity to influence the jury had seemingly diminished over time. The court refused to grant the application for a permanent stay but did agree to a no jury order under section 615 of the Criminal Code, considering it to be in the interests of justice and a fair trial for the defendant.

Additionally, the court decided that the admissibility of certain evidence from the complainant's re-examination should be determined at the trial itself, particularly in light of the decision to proceed with a trial by judge alone. This decision balanced the need for procedural fairness with the court's duty to ensure that the trial process was as just as possible under the circumstances.

Orders