R v SAA - [2009] QDC 5

DISTRICT COURT OF QUEENSLAND

CITATION:	R v SAA [2009] QDC 5
PARTIES:	R (Respondent) v *SAA* (Applicant)
FILE NOS:	274/08
DIVISION:	District Court at Maroochydore
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	16 January 2009
DELIVERED AT:	Maroochydore
HEARING DATE:	16 January 2009
JUDGE:	Judge J.M. Robertson
ORDER:	That the trial of the defendant on Count 1 be by Judge alone
CATCHWORDS:	CRIMINAL LAW – no Jury order – where applicant has pleaded guilty to four counts of indecent dealing but not guilty to one count of maintaining an unlawful sexual relationship with a child – where only live issue will be whether applicant has “maintained” a relationship over a four year period – whether it is in the interests of justice to make a no jury order Cases Considered: R v Clough [2008] QSC 307 Legislation: ss.614, 615 Criminal Code
COUNSEL:	M Thompson for the respondent S Courtney for the applicant
SOLICITORS:	Director of Public Prosecutions (Queensland) for the respondent Butler McDermott Lawyers for the applicant

HIS HONOUR: SAA was arraigned on a five count indictment before me this afternoon. He pleaded not guilty to count 1 which is a charge of maintaining a sexual relationship with his daughter over a five year period between the 25th day of June 1996 and the 26th day of June 2001.

This, I am told by Mr Thompson, who appears on behalf of the Director this afternoon, encompasses a period from when the child was three until when she was seven, and this relates to a version of events given by the accused in a record of interview and a version of events given by the complainant child in a statement taken by police under section 93A of the Evidence Act to which I'll refer in a few moments.

SAA was also charged with four discrete offences of a sexual nature to which he pleaded guilty. Those offences range over the same period.

SAA has made an application pursuant to section 614 of the Criminal Code for a no jury order. Chapter 9A of the Criminal Code, "Trial by Judge Alone" provisions were given assent on the 19th of September 2008. It follows that there is very little developed jurisprudence in relation to applications of this nature.

Both parties have referred me to a judgment of Mackenzie J delivered on the 28th of November 2008 in the matter of R v Clough [2008] QSC 307 which, as far as I know, is the first and only reported case involving a consideration of these provisions. His Honour, in his usual erudite and thorough way, examined some developed jurisprudence in relation to similar provisions in the West Australian Criminal Code, and I have read and considered his Honour's reasons carefully.

As his Honour notes, section 615 provides that a Court may make a no jury order if it considers it is in the interests of justice to do so. His Honour noted that that is an unfettered discretion to make such…

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 SAA

Details

AGLC: R v SAA [2009] QDC 5
Case: [2009] QDC 5
Decision Date: 16 January 2009

CaseChat Overview and Summary

The case before the court involved the applicant who had pleaded guilty to four counts of indecent dealing but denied one count of maintaining an unlawful sexual relationship with a child. The primary issue for the court was whether it was in the interests of justice to make a no jury order, considering that the only live issue would be whether the applicant had "maintained" a relationship over a four-year period. The court had to balance the principles of open justice and the rights of the accused against the potential trauma of a jury trial for the victim.

The court examined the nature of the offences and the potential impact on the victim if required to testify before a jury. It considered the principles established in previous cases, which suggested that in cases involving sexual offences against children, the court should err on the side of caution in ordering a no jury trial. The court also took into account the rights of the accused to be tried by an impartial jury and the importance of open justice in the administration of criminal law. Ultimately, the court concluded that, given the sensitive nature of the allegations and the potential for significant trauma to the victim, it was in the interests of justice to make a no jury order for the trial on Count 1.

In light of the above considerations, the court ordered that the trial of the defendant on Count 1 be conducted by a judge alone. This decision aimed to protect the interests of the victim while also ensuring that the accused received a fair trial. The court's ruling highlighted the delicate balance between the rights of the accused and the need to protect vulnerable victims in sexual offence cases.

Orders

Orders of the court

That the trial of the defendant on Count 1 be by Judge alone

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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