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[2009] QDC 158
mixed. The permanent stay application was refused; a no-jury order was made under s 615 of the Criminal Code Act 1899; and admissibility of the challenged re-examination evidence was left for determination at...
1 cited instrument linked from this judgment.
The judge would not permanently stop the prosecution because he understood the Court of Appeal to require use of the Jury Act's juror-questioning process before a court could conclude that a fair jury trial was impossible. But he considered the statutory basis for a judge-alone trial satisfied, particularly given the publicity and the prosecution's lack of opposition, and ordered that mode of trial. He left the challenge to part of the complainant's re-examination evidence for the trial judge to decide at trial.
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2,252 words · generated 30/09/2026
R v Ferguson [2009] QDC 158 is a procedural ruling by Judge Robin QC in the District Court of Queensland on 23 February 2009. Ferguson was charged with indecent treatment of a child. The ruling addresses three matters: a renewed application for a permanent stay because of pretrial publicity, an application for trial by judge alone, and a request to exclude part of the complainant's evidence in re-examination.
This was Ferguson's third application for a permanent stay. The judge understood that the first application, before Judge Forno, had relied on the amount of adverse pretrial publicity and had failed. A later application succeeded on 1 July 2008, but the Court of Appeal set that order aside in R v Ferguson [2008] QCA 277. The Court of Appeal's reasons were delivered on 8 August 2008. Judge Robin noted that amendments to ss 614 and following of the Criminal Code came into effect a month and 11 days later, and described them as having “significantly changed things”. The ruling does not set out the full text or history of those amendments.
The High Court refused special leave to appeal from the Court of Appeal's determination. The District Court judge referred to [2009] HCATrans 16 and said that, as he read the transcript, it provided no guidance for the matters before him. He understood the High Court's stated reason to be that there was insufficient doubt about the Court of Appeal's view concerning the Court of Appeal's power to make orders under s 669A(1A) of the Code.
The judge refused the permanent stay. He nevertheless made an order for trial by judge alone under s 615. The prosecution did not oppose that order, and the judge said the condition in s 615(4)(c) was satisfied. Finally, he did not decide whether the challenged evidence in re-examination should be excluded. He considered that question better determined at trial if the proceeding was to be heard by a judge alone.
The judgment is short and contains no numbered paragraphs. References in it to paragraphs 43, 55, 56, 57 and 58 are references to the Court of Appeal's reasons, not paragraph numbers in this District Court ruling.
The permanent-stay application turned on the District Court judge's reading of the appellate ruling. He noted that the Court of Appeal had identified two problems with the earlier stay decision: the primary judge had considered at least one matter that should not have been considered, namely the weakness of the prosecution case from some points of view; and the primary judge should have considered s 47 of the Jury Act, although no one had asked him to do so.
Section 47 was described in the judgment as providing a means, controlled by the presiding judge, to question provisionally empanelled jurors about impartiality. The judge referred to the section's example of prejudicial pretrial publicity as a possible special reason to question people selected as jurors or reserve jurors in the final stage of selection. He read the Court of Appeal's reasons as not permitting him to conclude that a fair jury trial was impossible before that process had been “deployed”. This was the central reason the permanent stay failed.
The judge also noted that the Court of Appeal regarded the earlier conclusion that a jury could not return a fair-minded verdict as premature. In his reading, the appellate court expected consideration of the statutory juror-questioning process and the possibility that the effects of publicity might dissipate. Section 47 had not been invoked in the application before him, and the possibility of dissipation mentioned by the Court of Appeal had not really been examined. Although he personally thought publicity had declined, he accepted that material might remain available on the internet. His personal impression did not displace the procedural obstacle he understood the Court of Appeal to have identified.
The judge's approach to the no-jury application was different. He identified s 615(4)(c) as the relevant statutory condition and expressly found it satisfied. The prosecution did not oppose the order. He referred to Clough [2008] QSC 307 and The Queen v SAA [2009] QDC 5 as helpful examples of judge-alone orders, including discussion of the relationship between technical issues and matters ordinarily assessed by a jury.
The judge did not regard indecency as likely to be the real dispute. On the assumed facts, he considered the alleged conduct plainly indecent by ordinary community standards, subject to possible defences such as accident or mistake. He considered the central factual issue likely to be whether Ferguson committed the alleged conduct or whether another man did. In that setting, he concluded that a judge-alone order was in the interests of justice and a fair trial for Ferguson.
The final evidentiary issue concerned a response by the complainant during re-examination to a leading question suggesting that Ferguson, rather than another person, was responsible. The judge did not decide admissibility in advance. Because the trial would be before a judge alone, he considered it preferable for the trial judge to determine admissibility at trial.
The judgment describes a change in the statutory setting but does not provide enough material to reconstruct the full legal position before and after the amendments. It says that the Court of Appeal's reasons in August 2008 preceded amendments to ss 614 and following of the Criminal Code, which came into effect a month and 11 days later. It characterises those amendments as significant and links s 615(4)(c) to an avenue for ensuring a fair trial where publicity may affect jury deliberations.
For the stay issue, the ruling's account of the earlier legal position is shaped by the Court of Appeal's decision in Ferguson. The Court of Appeal had set aside the earlier permanent stay and left open the possibility of a further application. But, as Judge Robin read the appellate reasoning, a finding that a fair jury trial was impossible was premature before the s 47 process had been considered. The judge applied that understanding when refusing the renewed application. The ruling does not set out a general test for permanent stays based on publicity, and it should not be treated as stating one.
For trial mode, the ruling records the availability of a judge-alone order under s 615 and finds the condition in s 615(4)(c) satisfied on the circumstances before the court. The judge described this route as an “important avenue” by which an accused might obtain a fair trial that might arguably not be available before a jury because of events that had occurred. That is the judge's assessment of the statutory option in this case, not a complete account of every statutory requirement or every later interpretation of s 615.
The judgment also notes s 615(5), which it says indicates that indecency is a matter requiring application of objective community standards and ordinarily one for a jury to pronounce upon. The judge considered that concern unlikely to be decisive here because the real dispute was expected to concern the identity of the perpetrator. The judgment does not reproduce the statutory text, so the section's operation should not be extended beyond the judge's description.
The judge said: “As I read the Court of appeal's decision, it's not open to me to reach a conclusion that a fair trial is not possible before section 47 is ‘deployed’.” In plain English, he understood the Court of Appeal to require consideration of the juror-questioning process before he could rule out a fair jury trial. Since that process had not been used, he refused the permanent stay.
On the statutory condition for a judge-alone trial, the judge said: “I am in no doubt that the condition set out in subsection (4)(c) is satisfied here.” This is a direct statement of his finding under s 615(4)(c). The order followed in a context where the prosecution did not oppose trial by judge alone.
The judge observed that s 615(4)(c) “may prove to be an important acknowledgement by the legislature of the importance of significant pretrial publicity that may affect jury deliberations.” This explains why he regarded the new statutory route as significant. The wording is cautious: he said it may prove important, rather than laying down a comprehensive interpretation of the provision.
On the trial's likely focus, he described the central issue as whether the alleged treatment, if it occurred, was committed by Ferguson or by another man. This was relevant to his view that the question of indecency was not likely to be a substantial contested issue, while identity was.
On the evidentiary application, he said: “If there is to be a trial before a Judge alone it seems to me preferable for the determination of the admissibility of that evidence in re-examination to be determined at the trial.” In plain English, he reserved the admissibility decision for the trial rather than resolving it as part of the pretrial applications.
The ruling is most directly relevant to a procedural situation with features like those described in the judgment: substantial pretrial publicity, an earlier appellate decision setting aside a permanent stay, and a renewed request to stop the prosecution before the statutory juror-questioning process has been used. Its specific point is the judge's reading of the Court of Appeal's direction in this same proceeding. It is not a broad ruling that a stay can never be granted for publicity, nor does it say that s 47 must invariably be used in every case involving publicity.
It is also relevant where an accused seeks a judge-alone trial under s 615 in a case involving publicity said to threaten a fair jury trial. The judge found the relevant condition in s 615(4)(c) satisfied and took account of the prosecution's non-opposition. The judgment does not establish that publicity alone will always satisfy that provision, and it does not identify every consideration that may be relevant in another case.
The ruling's discussion of trial issues may matter where indecency is alleged but identity is expected to be the principal dispute. Judge Robin considered that the nature of the alleged conduct made indecency unlikely to be a practical issue, subject to possible defences, and contrasted that issue with the question of who committed the conduct. That was a case-specific assessment, expressly based on the allegations and the judge's understanding of the proposed evidence.
Finally, the ruling provides a limited procedural example of deferring an evidentiary question where the trial is to be conducted by a judge alone. The judge considered it preferable for the trial judge to assess the challenged re-examination evidence in the trial context. It does not decide whether the evidence was admissible, or supply a general test for making that decision.
The provided judgment contains no account of later decisions treating R v Ferguson [2009] QDC 158. It therefore does not establish whether later courts followed, distinguished, applied, or limited this ruling. No conclusion about subsequent treatment can be drawn from the material supplied.
The cases the judge does mention are earlier authorities or related decisions considered in reaching his ruling. R v Ferguson [2008] QCA 277 is the appellate decision the judge understood himself to be bound by on the permanent-stay issue. The High Court transcript, [2009] HCATrans 16, is mentioned as providing no guidance for the issues before him. Clough [2008] QSC 307 and The Queen v SAA [2009] QDC 5 are referred to as helpful examples concerning judge-alone orders. Those references do not show how later courts treated the 2009 District Court ruling.
The ruling leaves several matters unresolved. First, it does not decide what the result would be after s 47 of the Jury Act had been used to question provisionally selected jurors. The judge refused the stay at the stage before that statutory process was invoked. He also noted that the possibility of publicity dissipating had not really been examined.
Second, the judgment does not determine the ultimate effect of the publicity on a jury's impartiality. The judge accepted for the purpose of the application that publicity had continued, while observing that its extent appeared to him to have declined and that internet material might remain available. Those observations were not findings based on a specifically demonstrated evidentiary record of continuing publicity.
Third, the ruling does not decide the merits of the charge or resolve who was responsible for the alleged conduct. It identifies identity as the likely trial issue, based on the materials and the cross-examination in the pre-recording as the judge understood them. The judgment does not determine the credibility or reliability of the complainant or of any other witness.
Fourth, the judge did not decide whether the challenged answer in re-examination was admissible. That was expressly left for the trial. The ruling therefore cannot be cited as a decision either admitting or excluding that evidence.
Finally, the judgment's discussion of ss 614 and 615 is not a complete statutory analysis. It records the judge's finding under s 615(4)(c), his reference to s 615(5), and his view of the legislative significance of the no-jury option. The full statutory text, later amendments, and any subsequent judicial treatment are outside the material supplied here.
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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
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
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 publicity, which, I accept for the purposes of today,
has continued, although that has not been specifically
In paragraph 55, the Court of Appeal expressed the view that
the conclusion the subject of the appeal that the accused
couldn't be convicted on the basis of a fair-minded verdict of
a jury was premature, making reference then to section 47 of
the Jury Act. An example given in the section attached to
subsection (1) indicates the legislature's recognition that
"prejudicial pretrial publicity may be a special reason for
questioning persons selected as jurors or reserve jurors in
the final stage of the jury selection process". Questioning
is to be controlled by the presiding judge. The purpose is to
ascertain the impartiality or otherwise of those who have been
As I read the Court of appeal's decision, it's not open to me
to reach a conclusion that a fair trial is not possible before
This is also a significant piece of assistance for me in
footnote 15, which indicates that apart from a decision more than 70 years old in the Northern Territory, there seems to be no instance in Australia of a permanent stay being ordered because of pretrial publicity. The footnote goes on to note a couple of exceptions in England to the proposition in that jurisdiction.
It appears to me that I'm constrained by the Court of Appeal's
decision to reject the application for a permanent stay.
Section 47 has not been invoked, nor has the possibility of
pretrial publicity being dissipated that's referred to in
paragraph 58 of the reasons really been looked at. For what it's worth, my own impression is that in recent times, the
extent of publicity has declined. Notwithstanding that there is likely to be available on the internet everything which has ever been available there.
In the circumstances, I won't accede to the application for a
permanent stay, although for the future, it might be noted
that section 615(4)(c) of the Criminal Code represents what may prove to be an important acknowledgement by the legislature of the importance of significant pretrial publicity that may affect jury deliberations.
There's no opposition by the prosecution to a no jury order
being made under section 615. I am in no doubt that the
condition set out in subsection (4)(c) is satisfied here. There have been a number of orders whose effect is that there will be trial by Judge alone, the most helpful of which is Clough [2008] QSC 307 in which Mackenzie J published extensive reasons.
Those were acknowledged by Judge Robertson in the Queen v.
SAA [2009] QDC 5, when a no jury order was made in respect of
a count of maintaining an unlawful sexual relationship to
which an offender who had pleaded guilty to four counts of
indecent dealing had pleaded not guilty. There were some
technical aspects of the maintaining offence which his Honour
thought it might be preferable to have dealt with by a Judge.
He was also fortified by the removal from the proceeding of a
possible issue about indecency which section 615 (5) indicates
is something requiring the application of objective community
standards which, in normal circumstances, a jury ought to
pronounce upon rather than a judge sitting alone. The reasons in SAA, and I think Clough bear on this aspect which causes me some concern.
Although Mr Smith in support of the application is not in a
position to concede that the conduct which the Crown relies on
represented indecent treatment of the complainant, assuming it
happened, it is almost inconceivable that that can really be
What's asserted is that a man of mature years digitally
interfered with the genitalia of a very young girl. In a
practical sense it seems to me there is no issue whether by
ordinary community standards that was indecent treatment. In
my opinion, it clearly was, subject to defences that the
prosecution might find itself have to negative by way of
The issue in the trial is likely to be whether if the
complainant suffered the treatment which she told the police
she did, that was perpetrated by the defendant or, as her
cross-examination in the pre-recording has it, not by him at
all but by another man who was there, and also, if I
understand things correctly, one who may have been convicted
For these reasons, I think that given the prosecution's
attitude, it's in the interests of justice and a fair trial
for the defendant for the no jury order to be made. The
possibility of that which the Criminal Code now offers
provides an important avenue for assuring that an accused
person can, by resort to that mode, get a fair trial which may
arguably not be available before a jury because of things
The third aspect of the application before me concerns the
excluding of the complainant's evidence in re-examination
which involved the desired response to a leading question by
the prosecutor suggesting that it was the accused and not the
other person after all who had been responsible for the
If there is to be a trial before a Judge alone it seems to me
preferable for the determination of the admissibility of that
evidence in re-examination to be determined at the trial.
The permanent stay application was refused; a no-jury order was made under s 615 of the Criminal Code Act 1899; and admissibility of the challenged re-examination evidence was left for determination at trial.