R v Prisk and Harris

Bernard Bradley & Associates for the second defendant

[1] John Michael Prisk and Kristen Pamela Harris are charged with the murder of their son, Joshua on 24 September 2007. Joshua was aged two years and nine months at the time of his death. Their trial is listed to commence on 12 October 2009. The identity of the trial judge is known.

[2] There are two applications before the court. The first, by Prisk, is under s 615 of the Criminal Code ("the Code") for an order that the accused be tried by judge alone - a "no jury order". The second, by Harris, is for a no jury order and for an order that she be tried separately.

(1) If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling, or a judge of the court may on his or her initiative direct the parties to attend before the court for directions or rulings, as to the conduct of the trial or any pre-trial hearing.

(2) Without limiting subsection (1) a direction or ruling may be

(da) an application for trial by a judge sitting without a jury;

(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."

(1) The court may make a no jury order if it considers it is in the

(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

(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

(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."

[4] As these applications were made after the identity of the trial judge was made known[1] a no jury order can only be made if the Court is satisfied that there are "special reasons" for making it[2].

[5] The term "special reasons" is not defined but it is not a term which is unknown to legislatures. The meaning which can be given to it was considered by French J (as he then was) in Boscolo v Secretary, Department of Social Security[3] where he said:

"[18] The word "special" conditioning "reasons" or "circumstances" guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A Full Court has spoken of it as having content which is "...sufficiently understood not to require judicial gloss" - Beadle v Director-General of Social Security [1984] AATA 176; (1985) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be "special" in relation to animals generally but "...when you are speaking of poets, he may need to be a Milton" - Holpitt v Varimu [1991] FCA 269; (1991) 103 ALR 684 at 686 per Burchett J. It is an elastic instruction suitable for application across a range of situations - Jess v Scott [1986] FCA 365; (1986) 70 ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules - Beadle (supra) at 228. Circumstances or reasons will not necessarily fall outside the designation of "special" because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise - Re Hutchins; Jarlas Pty Ltd v Federal Commissioner of Taxation (1987) 74 ALR 455 at 473. The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course - ; at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional - ; In (supra) the Full Court, having concluded that the term "special" was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security."

[6] In White v South Australia,[4] the Full Court of South Australia considered the phrase in the context of legislation which provided that a particular entity could not be required to divulge information unless, among other things, a court was satisfied that there were "special reasons" requiring the making of an order to divulge. On this point, Doyle CJ said:

"[48] The expression "special reasons" must always be interpreted in light of its context: Goldsmith v Newman (1992) 59 SASR 404 at 409.

[49] In the context of the [Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) ("CDP Act")], and having regard to the sensitive nature of the functions of the [Police Complaints Authority ("PCA")] and of the internal investigation branch, "special reasons" must mean reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular or significant weight. And, as I have already said, they must be reasons that call for or require the making of an order.

[50] It goes without saying that circumstances that are routine, and consequences that are a normal and inevitable result of the secrecy provisions, are unlikely to give rise to "special reasons". The submission that the PCA and the Commissioner should be accountable to the Courts (presumably by requiring disclosure of information) should not be accepted. It is clear from the legislation that that cannot be the starting point. The legislation provides otherwise. Similarly, the submission that disclosure of the material will facilitate the efficient conduct of the proceedings cannot be accepted as a relevant matter. There is nothing special or out of the ordinary in the fact that the inability to obtain the production of documents such as the contested documents will or might prejudice the efficient conduct of the litigation. Under this head the Court must also consider the possible impact of the making of an order on those involved in the matter that has been investigated, and on those who are the subject of the relevant information. It must also involve a consideration of the impact or possible impact of an order on the ability of the PCA and of the internal investigation branch to discharge their functions under the CDP Act."

"[98] The primary meaning of "special" is "of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree": Oxford English Dictionary. The expression "special reasons" takes its colour and meaning from its context: Goldsmith v Newman (1992) 59 SASR 404 at 409 per King CJ. Notwithstanding that proposition, it is possible to make some general observations as to the meaning and effect of the expression. I respectfully agree with French J in Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at [18] ...

To like effect are the observations of Olsson J in R v Ferri at [15]. The additional requirement of special reasons, therefore, means that there must be some factor over and above the interests of justice which require disclosure. It means some special feature of the circumstances which provides a reason, not usually present, for requiring disclosure: cf. Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 472; (1992) 38 FCR 217 and 225 per Wilcox J."

[8] Anderson J, otherwise dissenting, agreed with Doyle CJ on these points:

"[114] Doyle CJ deals with the topic of special reasons and says that:

Special reasons must mean reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular or significant weight.

Circumstances which are routine and consequences that are a normal and inevitable result of the secrecy provisions are unlikely to give rise to special reasons.

[116] I respectfully agree with those statements."

[9] While the phrase was used in different circumstances in the legislation considered in the above cases, there can still be drawn from them a number of principles of general application. They are:

(a) The expression must always be construed in the light of its context.

(b) The application of the expression is not to be confined by precise limits or rules.

(c) Circumstances which are routine and consequences that are a normal or inevitable result of those circumstances are unlikely to give rise to special reasons.

(d) Special reasons are reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular weight. There must be some factor over and above the interests of justice.

(e) But, that does not mean that the case must be extremely unusual, uncommon or exceptional.

[10] The issue of whether there are special reasons will not usually arise unless the Court is otherwise minded to make a no jury order. It would be unnecessary to decide whether there are special reasons when there are insufficient grounds to make an order in the ordinary course. It may not be possible to consider these matters separately as it would not be unusual for the basis of an application to be intertwined with an argument about the existence of special reasons.

[11] I intend to adopt a two stage process. First, to consider whether there are grounds which justify a no jury order and, then, if there are such grounds, to determine whether there are special reasons for making the order.

[12] Joshua Prisk's death was caused by injuries to his head. In particular, he suffered an acute sub-dural haemorrhage with associated brain swelling and widespread hypoxic-ischaemic brain injury. The cause of these injuries was said to be some form of blunt trauma to the head. The deceased had numerous injuries over many parts of his body and they were of variable age. Some appeared to have been caused by an electrical cord. The sub-dural haemorrhage was no more than a few days old. Some injuries to the scalp showed recent haemorrhage, acute inflammation and ion deposition consistent with them having occurred within a few days before death.

[13] The medical experts proposed to be called by the Crown are generally of the view that the sub-dural haemorrhage was of an insufficient size on its own to cause death. Rather, it was the resultant swelling and lack of oxygen and blood supply to the brain which ultimately led to the boy's death.

[14] In an interview with police on the day of the deceased's death, Prisk said that Harris had left with her other two children at about 11 am. Prisk gave Joshua his lunch at about noon, after which the child had a sleep. When he woke from the sleep Prisk decided to bath him. Prisk says that after doing so, Joshua returned to his bedroom and started screaming. He became limp. Prisk called for an ambulance.

[15] When interviewed on 26 September Prisk admitted that he had smacked the child in the past but that he did not cause all the injuries. He stated that Harris would use an electrical cord of a kettle and a plastic spoon to strike the boy and that she had given the deceased "a good flogging" on Sunday. According to Prisk, when Harris left the house that morning, she told him that the deceased was in the cupboard.

[16] Harris told police that she left the house at 11am to go to the airport. She says that when she left, the deceased was "okay". She agreed that she would generally discipline the children. She said that she had seen Prisk hit the deceased with the cord and that she had seen a couple of marks and bruises appear on the child over the last couple of weeks.

[17] The Crown's case was summarised in the written submissions as:

(a) Over an indeterminate period of time leading up the death of Joshua Prisk, both the accused had formed a common intention to seriously assault or torture Joshua Prisk or to do both.

(b) That on 24 September 2007, Prisk struck the child on the head a number of times, causing injuries which led to his death. These blows were struck with an intention to cause the death of Joshua Prisk or grievous bodily harm and the murder or manslaughter of Joshua Prisk was a probable consequence of the prosecution of the common unlawful purpose to seriously assault and/or torture him.

(c) Alternatively, the blows which caused the injury or injuries which led to the death were delivered by either or both of Prisk and Harris and their respective liability for the murder and/or manslaughter of Joshua Prisk arises under either or both of section 7(1)(a) or section 8 of the Criminal Code.

[18] The Crown will probably call three experts. Dr Mill, a pathologist, gave evidence at the committal that the cause of death was head injury. Dr Connors, a paediatrician, gave evidence that the primary cause of death was cerebral oedema and wide hypoxic-ischemic damage. Dr Connors said there were two hypotheses as to the cause of death - one which involved an injury two to three days before cardiac arrest and the second which involved an initial episode of trauma severe enough to cause the disruption. The latter would have occurred much closer to the time of presentation at the hospital.

[19] Dr Crawford, a paediatric specialist, gave evidence that it was most likely that head trauma contributed to the cerebral swelling and produced impaired consciousness and cardiac arrest.

[20] There was evidence given at the committal from persons who lived near the house occupied by the accused as to hearing screams from the child on the morning of his death and at times when Harris was present in the house.

[21] The above is only a very brief summary of the evidence which was called at the committal.

[22] Both applicants submit that a no jury order should be made because:

(a) The evidence of injuries to the child (particularly in photographs) would have a tendency to overwhelm the jury's consideration of the matter.

(b) The case involves a detailed consideration of medical evidence relating to the cause of death which would be more appropriately conducted by a judge rather than by a jury.

[23] The primary test for whether a no jury order should be made is whether the court considers it in the interests of justice to do so. Section 615(4) then provides three instances in which the court might make such an order. Of those, only the first, s 615(4)(a), has any application to this case.

[24] What are the "interests of justice"? This was considered by McKechnie J in TVM v Western Australia[5] where he said:

"[22] The compendious phrase "the interests of justice" appears in many statutes and is a phrase often referred to by courts. Consideration of the interests of justice arises in many contexts. In relation to cross-vesting jurisdiction, the Full Court of the Family Court in Chapman v Jansen (1990) 100 FLR 66 said per Nicholson CJ (at 74):

In my view the expression "the interests of justice" is not one which should be narrowly defined and indeed it may not be particularly helpful to attempt to define it at all. I do not think that it is a concept which courts should find difficult to apply. The interests of justice will vary from case to case, and I think that, in general, in considering applications under this legislation, a broad approach is the approach to be preferred.

[23] See also Bankinvest v Seabrook (1988) 14 NSWLR 711.

[24] BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, is another case where the phrase "the interests of justice" was considered in respect of cross-vesting legislation. As Kirby J held at [172] the determination of the interests of justice is a power that involved the judicial evaluation of a number of factors. It requires an ultimate judicial decision framed in terms of criteria expressed in very general language.

[25] In a matter somewhat closer to the present case, in that it concerned criminal proceedings, Malcolm CJ referred to the interests of justice in Mickelberg v The Queen (No 3) (1992) 8 WAR 236, 59 ACrimR 288 and said (at 251; 302-303):

The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest and in due administration of justice.

[26] In Re Corruption and Crime Commission; Ex parte West Australian Newspapers Ltd [2007] WASC 201; (2007) 174 ACrimR 325 at [29], Templeman J regarded the test for determining the interests of justice as the avoidance of injustice.

[27] As the District Court has all the powers of the Supreme Court in its criminal jurisdiction, decisions of that court are of significant persuasive value. In Western Australia v Veskovich (2005) 40 SR (WA) 332. Wisbey DCJ considered the phrase "is in the interests of justice" holding at [5], [9]:

The expression "in the interests of justice" is not defined, but it is reasonable to assume that it refers to a fair trial according to law. Essentially it appears to me that it is only if there is a likelihood that a fair trial according to law may not eventuate in a jury trial that the discretion reposed in s 118(4) is enlivened.

I am not satisfied that the applicant has established a basis calling for the exercise of the Court's discretion.

[28] The phrase "the interests of justice" is not an expression capable of easy articulation or explanation because it is conclusionary in its nature. Necessarily, a judge takes into account many factors before concluding where the interests of justice may lie. The phrase "the interests of justice" is devoid of content except where it is given form by the particular facts and circumstances of a case.

[29] Both Malcolm CJ in Mickelberg, and Wisbey DCJ in Veskovich, pointed to the importance of a fair trial and it is undoubted that the fairness of a trial will be an important component of the interests of justice. It can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at hand to militate against the unfairness by ordering a trial by judge alone. A common example of unfairness is pre-trial publicity. Arthurs provides an extreme example of the corrosive and prejudicial effect of pre-trial publicity, but it is not necessary for an applicant to satisfy those extremes in order to persuade a court that in fairness the interests of justice might require trial by judge alone to overcome any lingering prejudice. I use the words "lingering prejudice" because it is also both the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. Long experience with juries, which I cannot completely discount, has provided me with many examples where juries have delivered true verdicts, despite extraneous influences being brought to bear." (emphasis added)

[25] The phrase "interests of justice" is not susceptible of any precise definition and that, in itself, suggests that it is a concept which is to be assessed according to the type of case, the interests of the community and the imperative requirement of a fair trial. I agree with the description of Malcolm CJ in Mickelberg that the interests of justice comprehend: the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice.

[26] As one would expect in a case of this nature there is a large number of photographs of the deceased taken post-mortem. The Crown intends to tender some of them, at least, in order to demonstrate the extent of injuries suffered by the deceased prior to death.

[27] This consideration is not specifically referred to in s 615(4) but it would fall naturally within the consideration given to the "interests of justice". It is obviously not in the interests of justice for a person to be tried by jurors whose capacity to reason has been overpowered by inflammatory evidence. Of course, the Court has the discretion to reject evidence which is more prejudicial than probative and, it could, in an appropriate case, decline to admit photographs which fell into that category.

[28] At the hearing of this application Mr Smith, who appeared for Harris, tendered two photographs of the deceased taken prior to the autopsy in order to demonstrate the nature of the images. He submitted that: "if those photographs went into evidence, they would have a tendency to prejudice both defendants in this case, particularly when really, in this case, there's got to be a clinical and logical examination of the medical evidence ...". Ms Lowry, who appeared for the Crown, acknowledged that she would be tendering some photographs "to demonstrate the high level of animosity that was directed at the child by whoever inflicted the fatal injuries." She also submitted that: "The photos are really no more prejudicial than hearing the evidence from a pathologist that a child of two years nine months had in excess of 200 injuries on his body."

[29] The two photographs which were tendered are unpleasant to view, but s 615 is not intended to relieve a jury of those tasks which might be regarded as unpleasant. Of necessity, a decision on this point is one which is based upon impression and an apprehension of what will be prejudicial. There may be a case in which the images which must be tendered are so horrific that it could be said that it is in the interests of justice that the trial be heard by a judge alone. This is not such a case.

[30] It was contended by Mr di Carlo, who appeared for Prisk, and Mr Smith that the medical evidence was so complex that it would be unreasonably burdensome for a jury.

[31] Juries have been confronted by medical evidence since the modern jury emerged. The evidence in this case is no more complicated than that frequently dealt with in criminal trials in this Court and in the District Court. There may be instances where the scientific basis for evidence is difficult to grasp but this is a case where a small number of highly qualified specialists have expressed opinions in a comprehensible manner which is not beyond the capabilities of a jury to absorb and understand.

[32] I am not satisfied that the matters raised by the applicants demonstrate that it is in the interests of justice that a no jury order be made.

[33] Should I be wrong in my assessment then it is appropriate to consider two other matters.

[34] First, the Crown intends to raise a case under s 7(1)(a) or s 8 or both of the Criminal Code. It was summarised by Ms Loury in this way:

(a) Over an indeterminate period of time leading up to the death of Joshua, the two accused had formed a common intention to seriously assault and/or torture Joshua.

(b) That on 24 September 2007 Prisk struck the child on the head a number of times causing injuries which led to his death. Those blows were struck with an intention to cause the death of Joshua or to cause him grievous bodily harm and the murder or manslaughter of Joshua was a probable consequence of the prosecution of the common unlawful purpose to seriously assault and/or torture Joshua.

(c) Alternatively, the blows which caused the injury or injuries which led to his death were delivered by either or both of Prisk and Harris and their respective liability for the murder and/or manslaughter of Joshua arises under s 7(1)(a) and/or s 8 of the Criminal Code according to the findings to be made by the jury.

[35] Mr Smith criticised the basis of this case, saying that it was extremely weak and would not be allowed to go to the jury. That might well be correct. But this is not the time to make an assessment of the strength or weakness of a case of this nature. I think that, except in cases where there is an obvious and irremediable flaw in the Crown case, it is preferable on an application for a no jury order to assume that the case is capable of going to the jury. The importance of that is to be found in s 615(5). The reliance upon s 8 as a basis for criminal responsibility will involve a factual issue that requires the application of an objective test, that is, whether murder and/or manslaughter was a probable consequence of a common intention to seriously assault or torture the deceased. Thus, this falls within one of the grounds available to the court to refuse to make a no jury order under s 615(5). If I was otherwise minded to make a no jury order, I would, on the basis of the s 8 case, decline to do so.

[36] Secondly, neither applicant presented any argument of substance establishing any "special reasons" for making an order as required under s 614(3). Neither applicant demonstrated there was something distinct or particular about the case or that there was some factor which took this case out of the ordinary which could be regarded as a special reason.

[37] Prisk did not make an application for a separate trial. The basis for Harris's application was that it would not be in the interests of justice for both accused to be in the same court room as Prisk has, during the course of the committal proceedings, made threats against Harris. Any problem concerning the security of the accused can be dealt with appropriately in the court room by the trial judge. This, alone, is not a ground for a separate trial.

[38] Another basis which was advanced at the hearing was that Prisk had made statements in a letter, which the Crown wishes to tender, which allege that Harris engaged in particularly unpleasant and brutal actions concerning Joshua. The Crown would not be entitled to lead that sort of evidence. But Prisk could give such evidence or require the Crown to tender the letter. It appears from the various submissions that each will blame the other for the death of Joshua.

[39] On the material which was put before me, it appears that most of the evidence to be called by the Crown will be admissible against both of the accused. It often occurs that evidence in a joint trial will be admissible against one accused but not against the other. That will not be a necessary reason for ordering separate trials.[6]

[40] It has been recognised that there are "strong reasons of principle and public policy" why joint offences should be tried jointly.[7] This was adopted by Toohey J in Webb v R when he said: "...when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused."[8]

[41] Those "strong reasons" for a joint trial are said to be "strengthened rather than weakened where each of the two accused deploy the 'cut throat' defence".[9]

[42] This is a case in which there will need to be directions given to the jury about the admissibility of evidence but that is not at all uncommon and is not a ground for a separate trial.

[43] The applications for a no jury order are dismissed. The application for a separate trial is dismissed.

[1] In accordance with the usual practice for substantial trials- identified by Mackenzie J in R v Clough [2008] QSC 307.

[3] [1999] FCA 106; (1999) 90 FCR 531 at para [18]

[4] [2007] SASC 75; (2007) 96 SASR 581

[5] [2007] WASC 299; (2007) 180 A Crim R 183

[6] R v Davidson [2000] QCA 39 at [12].

[7] R v Webb and Hay (1992) 59 SASR 563 at 585 per King CJ.

[8] [1994] HCA 30; (1994) 181 CLR 41 at 88, 89

[9] R v Roughan & Jones [2007] QCA 443 at [50] per Keane JA.