The overturning of District Court Justice Bottling’s ruling that Dennis Ferguson couldn’t get a fair trial for charges of sexual assault because of a mixture of pre-trial publicity and the difficult nature of the prsoecution case poses an extreme problem for Queensland’s criminal justice system. The Court of Appeal’s view is that the court system has to assume that jurors are capable of doing their job in these circumstances, as otherwise there’d be doubts about the whole jury (and justice) system. Heaven forbid!
But Queensland’s parliament has a new solution. The Criminal Code and Jury and Another Act Amendment Bill 2008 allows for judge-only trials if prosecution or defence applies and the following test is satisfied:
615 (1) The court may make a no jury order if it considers it is in the interests of justice to do so.
(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 unreasonably 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
If this provision passes, it’ll be interesting to see when a court is willing to say that getting rid of the jury is in ‘the interests of justice’. Such an order, at least if done in relation to s615(4)(c), would seem to imply that jurors may fail in circumstances when judges wouldn’t.
And, yes, the new provision could be applied to Ferguson’s upcoming trial:
720(1) Chapter 62, chapter division 9A applies in relation to a trial begun after the commencement whether the offence was committed before or after the commencement.
(2) For subsection (1), the trial has begun when the jury panel attends before the court.
Proceedings against Ferguson commenced ages ago, but his jury panel presumably hasn’t yet attended. Indeed, it’s likely that publicity would delay any such attendance for some time, long enough (I imagine) to bring the trial within the new provisions.
But it may not be plain sailing, thanks to these two provisions in the new Bill:
615(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.
(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.
Sensible provisions no doubt, but what a pickle they might create. As near as I can tell, the ‘indecency’ of Ferguson’s alleged conduct (touching a five-year old’s waist outside of her clothing) will be very much an issue for the offences he’s presumably charged with. And what if he exercises his ‘right’ to a jury trial and then argues that he is unable to have a ‘fair’ jury trial because the mechanisms for ensuring an unpoluted jury pool (vetting and removal) don’t work? That being said, given the weak case against him, a judge-only trial may be exactly what he wants.