No Jury Order – Greater Brisbane COVID lock down – R v Major [2021] QDC 63

On 29 March 2021, a three-day lockdown was announced over the greater Brisbane area. Those who lived in Brisbane during this time would no doubt recall having to ‘think on their feet’ and make sudden changes to their plans for the coming days. In this regard, the judicial system also had to pivot and make swift adjustments to the way matters before the Court were to be heard or otherwise dealt with.

R v Major [2021] QDC 63

Indeed, on 29 March 2021, the Mr. Major (the defendant) was to commence trial in relation to two charges:

1. Count 1 – That on a date unknown between the 25 January 2017 and 17 June 2018, he unlawfully and indecently dealt with KW, a child under 16 years. And KW was under 12 years.

2. Count 2 – That on a date unknown between the 25 January 2017 and 17 June 2018, he raped KW.

Application for No Jury Order

Given the lock-down, the defendant’s solicitor applied for a “no jury order” pursuant to s 614 of the Criminal Code. Relevantly, sections 614 and 615 of the Code are provided below:

S 614 Application for Order

(1) If an accused person is committed for trial on a charge of an offence or charged on indictment of an offence, the prosecutor or the accused person may apply to the court for an order (“no jury order”) that the accused person be tried by a judge sitting without a jury.

(2) The application must be made under section 590AA before the trial begins.

(3) If the identity of the trial judge is known to the parties when the application is decided, a no jury order may be made only if the court is satisfied there are special reasons for making it.

(4) Subsection (3) does not limit section 615 or any other restriction on making a no jury order imposed by this chapter division.

(5) The court may inform itself in any way it considers appropriate in relation to the application.

(6) For subsection (2), the trial begins when the jury panel attends before the court.

S 615 Making a no jury order

(1) The court may make a no jury order if it considers it is in the interests of justice to do so.

(2) However, if the prosecutor applies for the no jury order, the court may only make the no jury order if the accused person consents to it.

(3) If the accused person is not represented by a lawyer, the court must be satisfied that the accused person properly understands the nature of the application.

(4) Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply –

(a) the trial, because of its complexity or length or both, is likely to be burdensome to a jury;

(b) there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury;

(c) there has been significant pre-trial publicity that may affect jury deliberations.

(5) Without limiting subsection (1), the court may refuse to make a no jury order if it considers the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

The term’ special reasons’ is not defined in the code. As such, its application depends on the circumstances of each case and whether it is in the best interest of justice to make a no jury order. The trial’s complexity, length, and pre-trial publicity are typical examples of ‘special reasons’.[1]

The Decision

His Honour Judge Nathan Jarro of the Court concluded in paragraph 4 of his judgment:

The matter was to proceed to a jury trial, however, a three day lockdown was announced over the Greater Brisbane area on the morning of, and prior to, jury empanelment. Defence counsel Mr Fraser made an oral application under s 614 of the Criminal Code Act 18999 for a judge alone trial. The Crown did not oppose the application. Crown Prosecutor Mr Wong useful identified the requirement that given the identity of the trial judge was known at the time of deciding the application, I need to be satisfied under s 614(3) of the Code that there were special reasons for making the order. I was satisfied there were special reasons for making the order particularly in circumstances where it was unopposed, there had been a number of years since the indictment was presented and, overall, it was in the interests of justice for the matter to proceed in the way that it did without a jury.”

Overall, His Honour decided that it was in the interest of justice for the matter to proceed in the way it did without a Jury.[2] Consequently, the trial took place without a jury during the 2021 Brisbane lockdown, 29 March 2021, with closing arguments received on 30 March 2021.[3]

The defendant was ultimately found not guilty as the Court could not be satisfied beyond reasonable doubt that the complainant was indecently dealt with or raped by the defendant. The Court found significant inconsistencies between the claimant’s evidence and the evidence of the complaint witnesses, which caused the Court to doubt the complainant’s credibility or/and reliability. [4]

What is the role of the Jury in a trial?

Juries are an essential part of the Australian legal system. They are ordinary citizens randomly selected from the electoral roll to work with the judge to obtain the best outcome possible in a trial.[5] The law presumes that the interests of justice are best achieved by the inclusion of the community in the trial through the Jury. 

Juries are governed by The Jury Act 1995 (1995) and can only decide on facts, such as whether the person is guilty or not guilty and committed all of the elements of the offence beyond reasonable doubt. The jury cannot decide questions of law or the sentence that a defendant should receive.

This case of R v Major [2021] QDC 63 helpfully sets out some of the circumstances in which the court may proceed to a ‘judge alone trial’ without a jury.

This article was written by Luke Borgert and Marisol Tobon

[1] R v Ferguson; ex parte Attorney-General [2008] QCA 227; The State of Western Australia v Edwards [No 7] [2020] WASC 339.

[2] R v Major [2021] QDC 63, [4].

[3] R v Major [2021] QDC 63, [4].

[4] R v Major [2020] QDC 89, [5]- [6], [22], [25],[29]- [31], [34].

[5]  The Jury Act 1995 (Qld) Part 2 s 4, 16.

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