Director of Public Prosecutions v Albert and Sherlock

[2021] VCC 177

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No: CR-20-01543
CR-20-01544

DIRECTOR OF PUBLIC PROSECUTIONS

v

MUNER ALBERT
PATRICK SHERLOCK

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JUDGE:

HIS HONOUR JUDGE WRAIGHT

WHERE HELD:

Melbourne

DATE OF HEARING:

On the papers

DATE OF RULING:

26 February 2021

CASE MAY BE CITED AS:

DPP v Albert and Sherlock

(Application for trial by judge alone)

MEDIUM NEUTRAL CITATION:

REASONS FOR RULING
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Subject:  CRIMINAL LAW – Application for trial by judge alone.

Catchwords:   Application for trial by judge alone under COVID-19 Emergency provisions – Application supported by prosecution – Interests of justice – Delay – Youthful accused awaiting trial.

Legislation Cited:                Criminal Procedure Act 2009; COVID-19 Omnibus (Emergency Measures) Act 2020.

Cases Cited:DPP v Combo [2020] VCC 726; DPP v Verduci [2020] VCC 1166.

Ruling:  Application for trial by judge alone granted.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C Duckett	Office of Public Prosecutions
For the Accused Albert For the Accused Sherlock	Ms M Casey Mr D Rofe	Greg Thomas Barrister & Solicitor Chester Metcalf & Co

HIS HONOUR:

Introduction

1     On Indictment C1913237, the accused, Muner Albert and Patrick Sherlock, have each been charged with two charges of attempted armed robbery, alleged to have occurred on 20 December 2019. A third co-accused is to be dealt with in the Children’s Court. Muner Albert and Patrick Sherlock were both aged 18 at the time of the alleged offending and are now both 19 years of age.

2     On 20 November 2020 following a contested committal, both accused were committed for trial in the County Court.

3 On 10 February 2021, the accused Muner Albert made an application pursuant to s 420D of the Criminal Procedure Act 2009 (the CPA) to have his charges heard by judge alone.  Patrick Sherlock made a similar application on 12 February 2021. Each application was filed with written submissions.

4     At a directions hearing on 10 February 2021, the prosecution indicated that it supported the application for trial by judge alone in relation to both accused. The prosecution have also filed written submissions confirming that the prosecution support the application. However, even in circumstances where an application is supported by the prosecution, it remains for the court to determine if it is in the interests of justice to order trial by judge alone.

Prosecution case

5     A Prosecution Opening for Trial filed on 17 February 2021 outlines the allegations against the two accused and may be briefly summarised as follows:

6     On Friday 20 December 2019 at approximately 1.47am, the two complainants in this matter, Aman Sahle and Marko Viljanac left a unit at 17 Eric Street Preston and walked towards the 7/11 service station on the corner of Elizabeth Street and Bell Street, Coburg.

7     As the two complainants entered Elizabeth Street, Mr Sahle saw three men get out of a yellow taxi. In his statement, Mr Sahle provides detailed descriptions of the three men including that one of the men was carrying a white plastic bag.

8     The two complainants continued to walk towards the 7/11 while the three accused men slowly followed behind them.

9     After a minute or two Mr Sherlock called out to Mr Sahle asking if they had just ‘scored weed’. Mr Sahle replied that they hadn’t. Mr Sherlock then asked where they could ‘score weed’. Mr Sahle replied that it was late, that they wouldn’t be able to get anything and that he couldn’t help them.

10   The complainants attempted to walk away but as they started doing so the accused men surrounded them with Mr Albert in front of the complainants and Mr Sherlock together with the third accused, behind. Mr Albert started a conversation with Mr Sahle which became aggressive. Mr Albert placed the plastic bag he was carrying on the ground and put both his hands in the front pocket of his jumper as he moved towards the third co-accused and told Mr Albert to ‘Give us your stuff, the weed.’

11   Mr Albert then produced a silver wrench from his pocket and lifted it above his head aiming it at Mr Sahle.

12   Mr Sahle attempted to calm Mr Albert down while he and Mr Viljanac tried to walk away from the accused. As they did this Mr Albert yelled at them ‘You guys are lucky I didn’t use this on youse guys and hit you on the head’. As the complainants walked away, the accused men followed them for a short time.

13   Mr Sahle and Mr Viljanac attended the 7/11 and then walked back towards Eric Street, Preston. As they approached the address Mr Sahle observed the three accused in a taxi outside the units on Eric Street. Mr Sahle called 000 and conveyed that they had just been threatened by three men with one holding a wrench. Mr Sahle provided a description of the three men.

14   At 2.12am the police arrived. Mr Sahle came out of the unit and pointed to the taxi where the accused were. Mr Sherlock and Mr Albert exited the taxi from the rear while the third accused exited from the front. As Mr Sherlock exited he was observed carrying a black and white plastic bag. The police searched the bag and located a large silver wrench that matched the description given by Mr Sahle.

15   Mr Albert and the third accused made ‘no comment’ records of interview while Mr Sherlock responded to some allegations which are reproduced in the prosecution opening and contain some admissions.

16   Defence responses have been filed on behalf of both accused. Mr Sherlock does not dispute that a plastic bag containing a silver wrench was being carried by him when he exited the taxi. Mr Albert does not dispute this fact either. Both accused however deny producing a weapon or making any threats to the complainant.

17   Ms Casey who appears on behalf of Mr Albert, outlined in her submissions that the primary issue in the case is whether Mr Albert was armed and whether a demand was made. Complicity will be in issue in relation to Mr Sherlock’s case. As such, Ms Casey submits that in relation to each accused, the likely focus will be concerning the elements of the charge rather than on fact finding.

Legislative framework

18   On 25 April 2020, Parliament passed the COVID-19 Omnibus (Emergency Measures) Act 2020. That Act amended the CPA to, among other things, provide for trial by judge alone in certain circumstances.  The legislative framework was discussed in some detail by His Honour Chief Judge Kidd in DPP v Combo,[1] the first application for trial by judge alone under the amended provisions.  I respectfully agree with, and adopt His Honour’s detailed analysis.

[1] [2020] VCC 726 (Combo).

19 Section 420D of the CPA is the operative section in the following terms:

(1)At any time except during trial, the court may order that one or more charges in an indictment be tried by the trial judge alone, without a jury, if—

(a)     each charge is for an offence under the law of Victoria; and

(b)     each accused consents to the making of the order; and

(c)     the court is satisfied that each accused has obtained legal advice on whether to give that consent, including legal advice on the effect of the order; and

(d)     the court considers that it is in the interests of justice to make the order.

(2)The court may make an order under subsection (1)—

(a)     on its own motion; or

(b)     on application by the prosecution or an accused.

(3)In determining whether to make an order under subsection (1), the court must have regard to the submissions, if any, of the prosecution.

(4)However, the court may make an order under subsection (1) whether or not the prosecution consents to the making of the order.

20   As was observed by Chief Judge Kidd in Combo, s 420D is not to be construed as creating any presumption in favour of jury trials but rather, the default position is that there will be a jury trial unless and until the Court’s discretion is enlivened pursuant to s 420D(1)(d), that is, it is in the interests of justice to make an order for trial by judge alone.[2]  His Honour formed that view which is consistent with authority in other Australian jurisdictions.[3]

[2] Provided that the conditions of s 420D(1)(a), (b) and (c) are met.

[3]Combo at [46] and [47] and footnote 16.

21 In this instance both the accused and the prosecution agree that the matter is appropriate for a trial by judge alone and that the provisions of s 420D(1)(a), (b) and (c) have been satisfied. Not unlike the other applications that have been made since the legislation was passed, in this case the ‘interests of justice’ discretion, s 420D(1)(d), is where the discussion is focused. As to the interpretation of the ‘interests of justice’ provision, I respectfully adopt the observations of His Honour Judge Gamble in the decision of DPP v Verduci:[4]

It is a broad concept and includes not just the interests of the parties, but larger questions of legal principle, the public interest and policy considerations. It is in the public interest that the integrity and proper functioning of the criminal justice system within the courts is maintained and that accused persons receive a fair trial according to law. The determination of where the interests of justice lie involves a balancing exercise by reference to the particular facts and circumstances of the case under consideration. There will often be multiple and sometimes competing interests to be considered, none of which are individually determinative of the issue.[5]

[4] [2020] VCC 1166.

[5] Ibid at [37].

22   Understandably, in the current circumstances as a result of trials being suspended, most applications for judge alone trials rely on delay as a relevant consideration. In this instance, the alleged offending is said to have occurred on 20 December 2019 and the time taken thus far for the matter to be committed to this court is not inordinate. Nonetheless, the COVID-19 pandemic has meant that jury trials have effectively not run in this court for the past year and are only now beginning in a restricted way. The backlog is only going to increase this year. Further, in this instance the delay is particularly relevant as the accused men were both 18 at the time of the alleged offending and are now 19 which will be discussed further below in relation to the interests of justice considerations.

23   In Combo Chief Judge Kidd said the following in relation to delay:

In truth, the balancing exercise here does not involve merely weighing the benefits of a jury trial against those of a trial by judge alone for the case in question. Rather, it concerns weighing the advantages of a judge alone trial now against those of a significantly delayed trial by jury (with all the disadvantages this delay entails).

It seems to me that within the context of this legislation, the advantages of continuing with the business of the court, and mitigating the serious issues of delay, are powerful factors in favour of ordering a trial by judge alone.[6]

[6]Combo at [61]-[62].

24   Moreover, cases involving complainants, as is the case here, highlight even more the desirability to have the case heard expeditiously where possible.[7]

[7] Ibid at [60].

Arguments of the Accused in relation to the ‘interests of justice’

25   As noted, Ms Casey and Mr Rofe provided written submissions in support of the application for judge alone trial. Ms Casey’s submissions outline a number of propositions, supported by reference to authority, in relation to what constitutes the public interest. Mr Rofe adopted the submissions on behalf of Mr Albert.

Delay and youth

26   Ms Casey submitted that the age of each accused is a matter to be taken into account. As noted, both Mr Albert and Mr Sherlock are currently 19 and were 18 at the time of the alleged offending. As such it was submitted that if found guilty, a sentencing judge may consider a term of imprisonment or youth detention. Currently both accused are ‘young offenders’ within the meaning of the Sentencing Act 1991.  While both accused will not turn 21 until late 2023, there is still some risk of a jury trial being delayed for considerable time and there is no certainty of a jury trial in 2022. However there are other sentencing considerations that apply to young offenders that support the finalisation of criminal charges in an expeditious manner.

27   I note the observations of Chief Judge Kidd in Combo where, specific to the facts in that case where the accused was 21, His Honour observed that the desirability for expeditious justice is even greater when dealing with a young person:

Given that the accused is a relatively young man of 21 years, the desirability for expeditious justice is even greater. Timely finalisation of any criminal matter is important but that is especially so with respect to younger persons. The law broadly recognises the public interest that the justice system hear and determine cases involving young persons quickly so that, if acquitted, they can re-focus on resuming their lives or, if convicted, they can be sentenced with a key purpose being that of rehabilitation and reintegration back into the community at the earliest reasonable opportunity. I accept also that delay can weigh more heavily on younger people than more mature people. The delay represents a greater part of their lives.[8]

[8] Ibid at [71].

28   As such I accept that in all the circumstances, delay is a powerful consideration and takes greater prominence in the circumstances of this case where both accused are young and also where the case involves young complainants.

Length of trial

29   In support of the application Ms Casey submitted that the length of a trial by judge alone would be concluded in 3-5 days inclusive of addresses compared with 5-7 days before a jury.

30   In DPP v Verduci[9] His Honour Judge Gamble also dealt with an argument as to the length of the trial and the submission that a trial by judge alone would be shorter in duration and thus relevant to favouring a trial by judge alone.  In that case the trial was also to be relatively short where the issues were, like the circumstances here, limited and defined. His Honour formed the view that the argument lacked sufficient basis as it relied on speculation as to how the evidence would ultimately unfold.[10]

[9] [2020] VCC 1166.

[10] Ibid at [76]-[79].

31   I respectively adopt the comments of Judge Gamble. While there are obvious savings of time without the need to manage a jury, trials are notoriously unpredictable and unless there is a firm basis to support a vast difference in trial length between judge alone and jury, then a matter of a couple of days difference is in my view not persuasive.

Arguments of the Prosecution in relation to the ‘interests of justice’

32   Ms Duckett who appears on behalf of the Director of Public Prosecutions does not take issue with the submissions supporting the applications of both accused.

33   Further, Ms Duckett submits that the prosecution support the application as being in the interests of justice because of the straightforward nature of the case, the age of the applicants and the public interest in the ability of the courts to continue hearing matters during the COVID-19 pandemic. Ms Duckett concurs with the defence submissions that due to the age of the accused, if the trial is not dealt with promptly, the accused may be prejudiced if sentencing regimes become unavailable to them as a result of delay.

Conclusions

34   I am satisfied that the preconditions contained in s 420(1)(a) to (c) of the CPA are established as follows:

· s 420D(1)(a) – the charges on the indictment, four charges of attempted armed robbery, are all offences under the law of Victoria;

· s 420D(1)(b) – both accused consent to the making of the order;

· s 420D(1)(c) – I am satisfied that each of the accused has obtained legal advice on whether to give that consent, including legal advice on the effect of the order; and

· s 420D(1)(d) – for the reasons discussed above, I am satisfied in all the circumstances that it is in the interests of justice to make the order.

Orders

35 Pursuant to s 420D(1) of the CPA, I order that the four charges on Indictment C1913237 be heard and determined by judge alone, without a jury.

36   The trial will be fixed to commence on 29 March 2021 before Her Honour Judge Chambers with an estimated duration of 3-5 days.