R v Madden [2015] QDC 340

[3] At this stage, the defendant's trial is yet to be listed and the next sittings of the Court at Bundaberg does not commence until 1 February 2016. Accordingly, the application does not offend s 614(2) and, at this stage, the identity of the trial judge for this matter is not known to the parties and s 614(3) is not engaged, such that the Court need be satisfied that there are special reasons for making such an order.

[4] The test prescribed in s 615(1) is that "the court may make a no jury order if it considers it is in the interests of justice to do so". Accordingly, there is an exercise of discretion involved and the preferred view that emerges from the decisions in R v Fardon [2010] QCA 317 and R v Kissier [2011] QCA 223; [2012] 1 Qd R 353, is that expressed by Chesterman JA in R v Fardon, at [81]:

"...trial on indictment before a judge without a jury is exceptional. An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the Court that it is in the interests of justice that that be the mode of trial. If the code expressed neutrality and no preference for a trial by a jury the order could be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles, demonstrate why such an order is in the interests of justice."

"The expressed intention of the Legislature was to make the interests of justice the overriding consideration and that is reflected by the integral role s 615(1) plays in the determination of an application for a no jury order... the operation of which is expressly not circumscribed where either s 615(4) or s 615(5) applies."

[6] Also and as further observed by Chesterman JA in R v Fardon, at [74]:

".. the phrase the 'interests of justice' is so general and indeed, abstract, that it takes on meaning only by a consideration of the particular facts relevant to an application for a no jury order."

[7] Also in R v Fardon, at [44]-[45], Muir JA (with whom McMeekin J agreed) observed:

"[44] The overriding consideration in the exercise of a discretion under s 615 is whether it is in the interests of justice to make the order. And, as Deane J said in Hinch v Attorney-General (Vic):

'The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law.'

[45] Section 615 provides, in the appropriate case, a useful mechanism by which the Court can avoid the possibility of an unfair trial. " (citations deleted).

[8] The application is made here on the basis of avoidance of the possibility of an unfair trial, due to the contentions of impermissible prejudice for the defendant and which could not be cured by judicial direction, being introduced into the trial.

[9] The prosecution case is that the defendant and the complainant had been in an adult sexual relationship and the offences occurred after the complainant, with the defendant's mother, had collected him from the Maryborough Correctional Centre, upon his release from custody on 29 October 2012. As to the allegations upon which the prosecution case is based, it is pointed out that there is some variation as between the complainant's statement made on 11 December 2012 and her evidence given at the committal hearing on 31 May 2015.

[10] In the statement, the following is recorded:

"22. I remember we were fooling around on the bed with our clothes on kissing, Alan wanted to have sex with me but I said no. I didn't feel like it because I had been to Gavin's place the night before and I didn't want Alan to know about that. Alan said 'come on, I haven't had it for five weeks'.

24. Pop was in the lounge room. He is deaf and didn't hear me. I said no lots of times but Alan pulled my shorts off. He had said with me even though I didn't want to. I had never seen that side of Alan, he was really rough and it was clear he was going to have sex with me whether I liked it or not. It wasn't just a matter of me being reluctant but doing it anyway, I didn't want to have sex with him and he did it anyway.

25. Afterwards I stood up and he wanted to have sex [sic] me standing up while I was getting dressed.

26. Alan tried to stop me getting dressed but I refused, Alan pushed me over the bed and had vaginal sex with me again from behind. I was saying no while he was having sex with me but he didn't care.

27. We then went to Sugarland Shopping Centre to cancel a suit layby."

[11] It is then further recorded that the complainant returned to the defendant's house with her children and shared dinner there, with others, before spending the night at her own house and then, after dropping her children at day-care and school the next day, she again went to the defendant's house and later police arrived and arrested the defendant.

[12] In evidence at the committal and when asked to say what happened on their return to the defendant's house after he had been collected from the correctional centre, the complainant said:

"As you can imagine, it a little while since I had seen Alan face to face, and we started having - his mum and - mum was gone to the shops. His pop was still in the lounge room. And we started having intercourse in the bedroom. I told him to stop several times and he wouldn't stop, and, yeah, just wouldn't stop, and then I basically got up and got dressed and - yeah, he pushed me on the bed again and started again."

[13] Further, the questioning and evidence of the complainant then included the following:

"Okay stop now you said that you started having intercourse and that you told him to stop and that he didn't? --- Yes, he was just being a little bit rough and that was never - he never had been rough before.

Okay. So prior to him being rough, you had taken your clothes off? --- Yes.

And you were engaged in sexual intercourse? --- Yes.

Okay. And it was while sexual intercourse was occurring that you say you told him to stop? --- Yes.

Okay. And I take it that didn't occur? --- No.

Okay. Can you just remember the exact words you say that you used? --- I just asked him to stop. I just wanted to stop.

Were you - can you describe how you were laying on the bed? --- Laying as a normal couple on a bed.

--- Were you laying facing each other? Was one person on top of the other ---? --- No, he was on top.

How long had you been having sex for before you say that you told him to stop? --- I couldn't tell you. Ten minutes. It was - I don't know.

Ten minutes? --- Yeah, I think so. I can't remember.

And when you say that he had started being rough, can you describe what you say he was doing? --- Just too rough. It was like he was - I don't know. Not normal. It wasn't Alan. He just wouldn't stop.

So what - when you say 'too rough', what was he doing? --- Just continued to have sex with me and I said no.

Okay. You said in your evidence earlier that he was being rough which caused you to say no? --- Exactly.

So what was he doing when you described him as being too rough? --- Just kept - kept having sex with me when I said no. Like, it was just too rough.

So is it the case that you said no before or after he became rough? --- It was after he became rough.

And you can't now say what he was doing ---? ---- Oh, it's ---

--- In terms of describing how he was being rough? --- It's a long time ago and I've really forgotten about it, and I've forgotten about that person.

Okay. You can't describe where his hands were when you described him being rough? --- Honestly, I've - no I can't.

And can you indicate to the court, as best as you can remember now, what words exactly you said to him? --- I told him to stop. Stop, stop, stop. I just - that was it. And he wouldn't stop.

And what did you do at that time when you were saying stop? --- He stopped then I got up and then he pushed ---

I'm sorry, he stopped? --- He stopped, and when I got up and got dressed and then as I got up and got dressed he pushed - as I was getting dressed he pushed me over on the bed and started again.

So when you first asked him to stop, he did stop, and you got up and got dressed; is that right? --- No. I had to say several times to stop.

Okay. So when you were saying stop several times, what were you doing at that times? --- Asking him to stop.

Were you doing anything ---? --- I was pinned down.

--- With your body? --- He wouldn't let me up. I couldn't get up.

So can you describe what you were doing? Were your arms moving in any way? Were your feet moving in any way? --- I just asked him to stop. I just didn't think I'd have to tell him several times to stop, like ---

So you told him several times and he stopped? --- Yes.

You said that you got up. Can you describe how you got dressed? --- I was putting my shorts on and then he pushed me over onto the bed and I was basically bent over the bed. [Indistinct] - Which position you'd call it.

So prior to any sexual contact occurring, you said that you had gotten undressed. Do you recall what clothes you were wearing prior to getting undressed? --- I couldn't tell you. I usually wear three-quarters or a skirt. I don't know, I couldn't --- am - shorts.

So how much of your clothes had taken off at the beginning of this event? --- Everything.

Okay. When you stood up and started getting dressed, how much of your clothes had you put on before you say Alan pushed you on their bed? --- Half-my shorts half way up my legs. I - as again, it's got nearly three years, so I can't really exactly pin point.

So can you describe how you were standing when you were pushed? --- Facing the bed, and he just lent me over - leaned me over the bed.

So where was Alan when you say he pushed you? --- Beside the bed but on the other side of me.

So you're standing or seated on the bed? --- standing.

He was standing next to the bed? --- Yes. Yes.

So at what point did he get up where you were both laying? --- He got up from the other side of the bed and came around, and, yeah, just pushed me over onto the bed.

And you're not sure what position your underwear were in? --- I'd pulled me nickers up. I don't know whether he sort of pulled them- Okay it's that long ago. I ---

What did you do when you were pushed? --- I told him to get off. It was enough.

You'd said you told him to get off? --- Yeah.

What was the next thing that you said? --- I said that was enough. I didn't - yeah, I didn't like it. I didn't like it.

So, if you can, remember to the best of your ability what exact words that you said to him at that time? --- I said enough. I didn't like it, and that was it, it was stopped then. I got dressed and went.

And you say that after he pushed you on the bed he had sex with you? --- He had penetrated me, yes, that time, and then - that was it, end of story, it was finished. I'd had enough.

Okay. Well, when you say he penetrated you, you need to describe to the Court how that happened? --- Well, I was facing this way. He come behind me, pushed me on the bed, and had his penis inside me and then that was it, I basically was finished. I told him to stop and he got up.

Okay. So are you saying that this event after you say he pushed you, happened ---? --- Just a split instant.

A split instant? --- That's it. It was done, finished.

And you say in that split instant he was able to penetrate your vagina? --- Yes, he did.

And you told him to stop, that you'd had enough, and he did stop? --- He did stop then, yes.

Alright. What happened after he stopped? --- I got dressed and left."[1]

[14] In further cross examination, the complainant agreed that even up to the time that she provided the statement to Police on 11 December 2012, she had not made any complaint of rape to the police and she was further questioned about this as follows:

"Is there a reason why you didn't go to the police and report this very serious incident? --- To be honest, I just want to forget it, as I have for the last three years nearly. May be I didn't want him to have anything else on him. He's got enough, I don't know. I just ---

Okay. So after you went shopping you went - you then went and picked your kids up ---? --- Yp.

--- That's right. And you took them back to Alan's place and had fish and chips; is that right? --- Yes, I think so.

And you didn't have any concerns about taking your kids over to Alan's house at that time? --- Look, he never touched my kids, no. I - he was a ---

But you're saying he raped you. That didn't give you a basis to have any concerns about having your kids at his house, did it? --- I just mentioned to Mark Cartner that this had happened and it's been just - --

What, blown out of proportion? --- Yes, it has. Like, to be honest.

Okay? --- it - I asked him to stop. Basically that was it, you know, and I just want to just forget it, but it's just been blown out of ---

But just to be clear, you asked him to stop after you commenced having sexual intercourse? --- We were having sex, yes ---

And after you asked him to stop he, in fact, did stop, and you stood up and started getting dressed? --- Several times I told him to stop, and he didn't stop, but yeah, then I got up and got dressed, yes. Starting to get dressed, and that's what happened again.

Okay. But you recall that you did take your kids to Alan's house for fish and chips ---? --- Yes.

--- after this. And it was the following day, after you dropped your kids off at day care and school, that you went back to Alan's house and the police turned up again; that's right? --- Yes. Now when you provided this statement to police in of December 2012, you didn't want to make a complaint of rape at that time, did you? --- No.

It was sometime later after talking to Detective Cartner is it, that you decided to pursue the complaint? --- Yes.

Can you just outline the circumstances of that occurring, please? --- What do you mean, the circumstances?

Well how did it come about that you decided to make a complaint? --- I just told Mark how Allen was that day, and I went from there.

Well, that conversation with Detective Cartner occurred in December of 2012 when you provided your statement, didn't it? So, you have to answer yes or no for the recording? --- Yes

So it wasn't until a lot later I suggest as later as 2014 - that you decided to pursue this complaint. Do you agree with that? --- I just told Mark about it - Mark Cartner about it - and he done a statement about it. I didn't - I just mentioned it to him.

Okay. So what I'm interested to find out is how it got to a charge or a complaint of rape, when in December 2012 you had a conversation with Mark Cartner and it wasn't a complaint at that stage. What made you change your mind? --- I'm not sure, I'm sorry.

Were you told anything by Mark Cartner to ---? ---No.

You were specifically asked, weren't you, in December of 2012 by Mr Cartner, if you wanted to make a complaint of rape? --- Yes.

And you told him at that point you didn't? --- Yes.

And you're not able to now say what changed? --- No.

Okay. Now you were aware, prior to Alan going into custody in October 2012, that for at least part of 2012 Alan had been on parole? --- Yes.

And you're aware, weren't you, that some of his conditions meant that he wasn't able to have contact with children? --- Yes.

And you know that because he specifically told you, didn't he? --- Yes.[2]

[15] Also and after the complainant agreed that she had continued to have contact with the defendant, whilst he was in custody after his arrest on 29 October 2012, including by way of specific letters that she sent to him, expressing her love and support of him and including some apparent criticism of the motivation of the complainant in the matter that had led to his incarceration as being a desire to separate them , her evidence continued:

"Now, does any of that jog your memory about what may have happened to change your mind about making a complaint to police about this? --- OKAY. If we're all being honest ---

Well, I hope so, you've given an oath, remember? --- Yes, I have.

Okay. So if you could be honest? --- I love this man, and I wanted to spend the rest of my life with. Everyone told me to be away from him, leave him. Even Mark Cartner told me to leave him, and I just want to stand by him, and I loved him, and I thought he loved me, but then finding out that I wasn't the other woman, its - it scorned me. It upset me. But I did not charge him for rape with - between - like, because of the other three women. That did occur on that day, but - yeah. I ---

Okay. So is it the conversations that you had with Mark Cartner about the other charges that Alan faces that caused you to pursue this complaint? Is that a fair assessment? --- Probably.

Okay. And those conversations occurred whilst Alan's been in custody - the conversations that you've had with Mark Cartner; that's correct? --- Yes.

Okay. Do you recall when any of those conversations occurred? --- No.

Did they happen at your house, or did they happen over the phone? - - - with Mark Cartner?

Mmm? --- He didn't really say anything about Alan's other charges. He just told me in no certain tones to forget - to forget him - I mean, to forget him sorry.

Okay. And you've said something about you've found out that you weren't the other woman or something. What did you mean by that? --- Well, I've heard from different people - we're going to have to cut this short. I'm going - I've got diabetes and I'm going to be going into a coma, so if we don't hurry up ---".[3]

[16] Then and subsequent to a break in the proceedings, there was the following evidence:

"... before the break I was just asking you questions about your conversations with Detective Cartner about this matter? --- Yep.

Do you recall whether those conversations occurred in person at your house, or whether they were over the phone, or whether they were a mixture of both? --- He came to my house to pick up the laptop, but nothing was said to change my mind. Like, he didn't change my mind.

Okay. So is there anything that happened other than you finding out information about Alan's relationship or something that caused you to decide to pursue this complaint? --- No.

Okay. So what information did you hear that caused you to change your mind? ... There was no information to change my mind, really.

Okay. Well you've gone from sending those letters that you outlined before, to pursuing the complaint through the police. Something must have happened. Do you agree with that? --- Yes.

And you said before that you found out that you weren't the other woman, or something. Can you just explain to the court what you meant by that? --- Well, dating Alan, he had another life. He had three other women - yeah. And that really stung me and hurt me and - yeah.

And who did you hear that from? --- Let me see, my son ... he told me. One of the women's daughters told - daughter told me. I can't remember Di's daughter's name.

If I suggested it was Caitlan? --- Yes. She told me. She showed me texts from Alan to the mother. Yeah and it just - it escalated from there.

Okay. And so once you found out that information, that's what's prompted you to go through with this complaint; is that right? --- Yes."[4]

[17] The defendant submits that he would be prejudiced in receiving a fair trial because:

(a) On the Crown case it will be evident that he was in custody prior to the alleged commission of the offences; and

(b) It is inevitable that the cross-examination of the complainant will reveal that the defendant was under police investigation for other matters and was charged with other offences and was in custody from late October 2012.

[18] It is contended that the prejudice occasioned to the defendant and his defence of these allegations, cannot be overcome by directions to a jury and that the fairness of the defendant's trial before a jury, would be compromised and that, accordingly, it is in the interests of justice that there be a no jury order.

[19] On the other hand and for the respondent, it is contended that none of the factors identified by the applicant suggest that he cannot receive a fair trial according to law, before a Judge sitting with a jury and that therefore the interest of justice do not warrant the making of a no jury order. Reference is made to the primary position as to trial by jury, pursuant to s 604 of the Criminal Code, being an encapsulation of the perceived advantage of jury trial:

"The purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful."[5]

[20] There is some obvious weight in the respondent's contentions. Whilst it is true that on a regular basis, criminal trials are conducted with particular sensitivity to avoidance of jury awareness of the incarceration of a defendant, particularly to avoid the prospect of any impermissible propensity reasoning, it does not follow that a jury may not be trusted to follow appropriate direction where there is knowledge of such circumstances. In particular, it must be acknowledged that jury trials have and can be fairly conducted, in circumstances where there is a contextual reference to a defendant's incarceration.

[21] Whilst and problematically for the defendant's contention, it remained somewhat simplistically based upon the potential for prejudice due to a jury's knowledge of his incarceration, particular emphasis was placed upon the circumstances of the defendant's return to custody in the context of an ongoing police investigation and as to how that is necessarily linked to issues relevant to the complainant's credibility, particularly having regard to her ongoing correspondence with the defendant, her provision of the statement to police in that other investigation and her motivation for eventually making a rape complaint.

[22] In the first instance, it may be seen that this approach can be properly described as simplistic, in that there was no attempt to deal with the considerations that might arise pursuant to s 615(5) and involving any application of objective community standards. This is because it is necessary to have regard to the prospect of the engagement of s 24 of the Criminal Code, at the trial and therefore the need to consider whether the prosecution have negatived an honest and reasonable belief on the part of the defendant that the complainant was consenting to sexual intercourse. When this question was raised in the course of argument, neither counsel was, understandably, prepared to commit to a position and, of course, much may depend on the precise evidence at trial, including any given by the defendant. However and particularly having regard to the different situation described by the complainant in her evidence at committal, neither was prepared to rule out that prospect, either. Another consideration may be the way in which the prosecution case is particularized. Given the circumstances that have been outlined, it is necessary to decide this matter on the basis that there is a distinct prospect that the trial is likely to involve such a factual issue, being an issue of reasonableness. Accordingly, this is a factor which may allow the court to refuse to make a no jury order. However and as was noted in R v Kissier, the primary question remains as to whether or not the court considers it is in the interests of justice to make such an order.

[23] The noted simplicity of approach to this application may also reflect what can be gleaned as to the obviously effective points, that were established in the cross-examination of the complainant at the committal and which were achieved without much emphasis upon the other investigation or any particularly clear reference to any of the circumstances pertaining to it.

[24] However, it should not be assumed that the evidence will necessarily be the same at trial. On the contrary, experience would suggest that at a trial, there is likely to be some particular focus upon the history of the complaint coming to police attention and the complainant's motivations in providing the statement to police and in subsequently making a formal rape complaint. Moreover that is likely to be an issue of interest to both parties.

[25] There are indications in what has been set out above, from the complainant's evidence at committal, that some essential context (if not influences) as to this issue, may be found in the circumstances of the police investigation that is linked to the re-incarceration of the defendant, from October 2012. As to this, it may be noted that the prosecution's schedule of facts (Exhibit 3) notes that the defendant is "a reportable sex offender with numerous sex-related convictions". Moreover, the court was informed that the re-incarceration of the defendant, related to an investigation of a complaint by a young adult woman and which resulted in charges of incest, sodomy and indecent treatment of a person with impaired mind. Further and subsequently, some of those charges were pursued at a trial, at which the defendant was acquitted.

[26] The potential for particular prejudice by way of misuse of knowledge of such allegations and which is unlikely to be able to be cured by judicial direction, has been recognised by the High Court.[6] It is recognised that knowledge by jurors of other allegations of sexual misconduct are particularly problematic and the potential misuse of such knowledge is further recognised as a basal reason for severance of such allegations in an indictment, except where the evidence relating to them is cross admissible. There is an obvious potential for prejudice of that type here, if, as may be expected to be likely, more detailed exploration of the complainant's motivations for providing the statement to police and then making a formal rape complaint, leads into exposure of the details or circumstances of the further police investigation of the defendant.

[27] Accordingly and whilst the predication as to what may occur at the trial remains somewhat unclear, it can be concluded that the interest of justice and particularly the full and proper exploration of what is likely to be an important issue as to the complainant's credibility, is allowed and not otherwise, or in any artificial way, restricted by the concern of either party of the creation of the type of prejudice which has been recognised as being problematic and not necessary amenable to judicial direction.

[28] For these reasons the application is allowed and there will be an order that pursuant to s 615(1) of the Criminal Code and in respect of Indictment Number 64 of 2015, the defendant be tried by a judge sitting without a jury.

[5] R v Doney [1990] HCA 51; (1990) 171 CLR 207, at 214.

[6] See: Hoch v R [1988] HCA 50; (1988) 165 CLR 292, at 294 & 298 and De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1; 68 ALR 1.