Date: 17 June 2020
Court: District Court of Queensland
Judicial Officer: Horneman-Wren SC DCJ
Human Rights Act 2019 (Qld) Sections:  ss 3, 4, 7, 9, 15, 32, 48, 58
Rights Considered: Right to be tried without unreasonable delay
Other Legislation: Criminal Code Act 1899 (Qld) ss 614, 615; Criminal Code and Jury and Other Acts Amendment Act 2008 (Qld) ch 62

Keywords: Criminal law proceedings; Fair trial; Interpretation; Public entity; COVID-19

The court considered an application for a no-jury trial and whether it was in the interests of justice for the trial to proceed on a judge alone basis. In written submissions, Counsel for the applicant raised the applicant’s right to be tried without unreasonable delay pursuant to section 32(2)(c) of the Human Rights Act 2019 (Qld). Horneman-Wren SC DCJ discussed the relevance of this right in the context of the application and ordered that the trial proceed on a judge alone basis.

This case concerned an application for a no jury order, pursuant to sections 614 and 615 of the Criminal Code Act 1899 (Qld). The applicant was charged on indictment with one count of producing a dangerous drug. The applicant’s trial was originally listed to commence on 1 June 2020, but as a result of the suspension of all new jury trials in Queensland due to the COVID-19 pandemic, the applicant’s trial was delisted on 26 May 2020.

In written submissions, counsel for the applicant raised the applicant’s right to be tried without unreasonable delay pursuant to section 32(2)(c) of the Human Rights Act 2019 (Qld). Counsel submitted that if the application for a no-jury trial was refused, the matter would not be given a future trial listing until an ‘indeterminate date’ and would be added to an ‘already growing backlog of cases’: [7]. It was further submitted that the consequent delay in concluding the applicant’s matter would amount to an unreasonable delay in contravention of section 32(2)(c) of the Human Rights Act 2019 (Qld). As the unavailability of a jury was the only reason for the delay, any limitation on human rights could be overcome by making the order.

Horneman-Wren SC DCJ held that although the applicant’s human rights were relevant, his Honour rejected these particular submissions by the applicant’s counsel. His Honour held that the applicant’s counsel incorrectly characterised the delay to the applicant’s trial as being a consequence of the refusal to grant a no jury order; while the order may have the consequence of reducing the delay, delay is the consequence of the suspension of jury trials: at [10]. Furthermore, his Honour rejected the submission that refusing to grant an order would be in contravention of the Human Rights Act 2019 (Qld) and held that this submission misconstrues the legislation and misunderstands the manner of its application: at [12].

His Honour went on to examine the objectives of the Human Rights Act 2019 (Qld) and the mechanisms through which it holds the three branches of government to account.  The court, in making a no jury order pursuant to section 614 of the Criminal Code Act 1899 (Qld), is acting in a judicial, not an administrative, capacity. As such, a decision under section 614 cannot engage section 58(1) of the Human Rights Act 2019 (Qld), which makes it unlawful for a public entity to act or make a decision in a way that is not compatible with human rights or fail to give consideration to human rights: at [17].

The court, however, is bound under section 48(1) of the Human Rights Act 2019 (Qld) to interpret all statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights. Section 615 of the Criminal Code Act 1899 (Qld), and the expression ‘in the interests of justice’ contained therein, must therefore be interpreted in a way that is compatible with human rights, particularly the defendant’s human right to be tried without unreasonable delay: at [20]-[21].

His Honour concluded that it is in the interpretation of the legislation and content of the test concerning the ‘interests of justice,’ ‘not the decision as to the application of the test, that the Human Rights Act imposes a requirement on the court’: at [27]. Thus, his Honour held that ‘all of this leads to the simple conclusion that making a no jury order may be in the interests of justice, not that failing to make an order may contravene human rights:’ at [29].

His Honour determined that in the circumstances of the case, the making of a no jury order was in the interests of justice. His Honour allowed the application.

Visit the reported judgement: R v Logan [2020] QDCPR 67 (PDF, 182.2 KB)