Director of Public Prosecutions v Ali El-Ali

[2022] VCC 904

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No: CR-19-02120

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI EL-ALI

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JUDGE:

HIS HONOUR JUDGE WRAIGHT

WHERE HELD:

Melbourne

DATE OF HEARING:

17 June 2022

DATE OF RULING:

17 June 2022

CASE MAY BE CITED AS:

DPP v Ali El-Ali

(Application for trial by judge alone)

MEDIUM NEUTRAL CITATION:

[2022] VCC 904

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

Catchwords:   Application not opposed by prosecution – Narrow issues in dispute – Interests of justice – Delay.

Legislation Cited:                   Criminal Procedure Act 2009 (Vic) ss 420D(2)(b), 420E; Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 (Vic).

Cases Cited:R v Giretti (1986) 24 A Crim R 112; DPP v Combo [2020] VCC 726; Hooper and Oxymed Australia Pty Ltd v DPP [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 K Hamill with Mr C Tom	Office of Public Prosecutions
For the Accused	Mr J Saunders	Valos Black & Associates

HIS HONOUR:

Introduction

1     On Indictment K10784116, the accused, Ali El-Ali, has been charged with one  charge of trafficking in a drug of dependence – large commercial quantity (Charge 1), an alternative charge of trafficking in a drug of dependence – commercial quantity (Charge 2), one charge of trafficking in a drug of dependence – cocaine (Charge 3) and three charges of possession of a drug of dependence (Charges 4, 5 and 6). The offences are alleged to have occurred between 27 January 2019 and 26 March 2019.

2 On 9 June 2022, the accused made an application pursuant to s 420D(2)(b) of the Criminal Procedure Act 2009 (‘CPA’) to have his charges heard by judge alone. Written submissions in support of the application dated 15 June 2022 note that the accused will make substantial admissions of fact to facilitate the expeditious conduct of the trial. The primary issue in the trial is first, whether the prosecution can prove beyond reasonable doubt that the accused had the intention to traffick in a large commercial quantity, and secondly, whether in the circumstances the offending which forms the basis of the large commercial quantity charge can be charged on a Giretti basis.[1]

[1]R v Giretti (1986) 24 A Crim R 112 (‘Giretti’)

3     In an email dated 16 June 2022, the prosecution indicated that the application for trial by judge alone is not opposed having regard to the following matters:

a.    the date of the alleged offending and length and time the matter has remained pending;

b.    the accused’s indication that the factual scenario is largely not disputed, and thus narrowing the issues in dispute;

c.    the nature of those issues in dispute; and

d.    the likelihood of the matter occupying less time if it were to run as a judge alone trial.

Prosecution case

4     A Summary of Prosecution Opening dated 20 March 2020 outlines the allegations against the accused and was tendered on the application. I will not reproduce that summary in these reasons. However, the primary charge can be briefly summarised as follows:

5     It is alleged that between 27 January 2019 and 18 February 2019, the accused, Mr El-Ali, supplied Matthew Bruce with a large quantity of methylamphetamine. The prosecutions contend that he supplied those drugs to Mr Bruce on six occasions: -

(a)An unknown quantity on an unknown number of occasions before 27 January 2019;

(b)On 27 January 2019 Mr Bruce purchased half a kilogram of methylamphetamine from Mr El-Ali. Those drugs were of poor quality and subsequently retrieved by Mr El-Ali and replaced with a half kilogram of better quality methylamphetamine. This transaction resulted in Mr El-Ali providing Mr Bruce with a total of 1 kilogram of methamphetamine;

(c)On 31 January 2019 Mr Bruce purchased 140 to 168 grams of methylamphetamine from Mr El-Ali with the assistance of Cursty Shields;

(d)On 4 February 2019 Mr Bruce purchased 168 grams of methylamphetamine from Mr El-Ali with the assistance of Cursty Shields;

(e)On 8 February 2019 Mr Bruce purchased 196 grams of methylamphetamine from Mr El-Ali; and

(f)On 13 February 2019 Mr Bruce purchased 224 grams of methylamphetamine for Mr El-Ali with the assistance of Jessica Shields.

6     On 26 March 2019 a search warrant was executed at Mr El-Ali’s home at 181 Kingsley Drive Lalor. The premises were searched and investigators located a number of bags containing a mixture of methylamphetamine and another substance which weighed a total of 139.1 grams.

7     The prosecution contend that the investigation revealed Mr El-Ali had provided Mr Bruce with and possessed over 1.867 kilograms of methylamphetamine. It is also contended that the investigation revealed Mr El-Ali was in possession of additional unknown quantities of methylamphetamine during the period of the alleged offence.

Legislative framework

8     On 30 March 2022, the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 (Vic) came into effect. That Act creates temporary amendments to the CPA to allow the trial of indictable offences before a judge sitting alone.

9     The new provisions reintroduce judge alone trials which were previously available for a prescribed period of 12 months up to 24 April 2021. The overall purpose of the new provisions is to enable the Courts to efficiently and fairly deal with the backlog of pending criminal trials that have arisen due to the impact of the pandemic. The legislative framework was discussed in some detail by His Honour Chief Judge Kidd in DPP v Combo (‘Combo’),[2] the first application for trial by judge alone under the previous amended provisions.  I respectfully agree with and adopt His Honour’s detailed analysis. In Hooper and Oxymed Australia Pty Ltd v DPP (‘Oxymed’),[3] the Court of Appeal endorsed the approach taken by Chief Judge Kidd in Combo.

[2] [2020] VCC 726.

[3] [2021] VSCA 68, [37].

10 Section 420E 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 while a pandemic declaration is in force; or

(b)   at any time on an application made by the prosecution or an accused while a pandemic declaration is in force.

(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.

11   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 420E(1)(d); that is, it is in the interests of justice to make an order for trial by judge alone.[4]  His Honour formed that view which is consistent with authority in other Australian jurisdictions.[5]

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

[5]Combo, [46] and [47] and footnote 16.

12 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 420E(1)(a), (b) and (c) have been satisfied. 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:[6]

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.[7]

[6] [2020] VCC 1166.

[7] Ibid, [37].

13   In the current circumstances, delay, which has been caused largely by the impact of the pandemic on the criminal justice system, is a relevant consideration. In this instance, the alleged offending is said to have occurred more than three years ago, between January and March 2019.

14   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.[8]

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

15   While delay is a relevant issue, in this particular instance the other matters upon which the parties agree are also matters to be taken into account in consideration of the interests of justice and whether to not to grant a trial by judge alone. That is the fact the primary issue in dispute is whether the accused intended to traffick in a large commercial quantity of methylamphetamine.

16   As the key fact in issue is whether the prosecution can prove beyond reasonable doubt that the accused intended to traffick in not less than a large commercial quantity of methylamphetamine, there is no issue of community standards in this case. The defence accepts that this is the case on the admitted facts. Accordingly, this aspect is not an impediment to a judge alone trial.

17   As to the length of the trial, the defence submit that a trial by judge also would save significant time given the narrow issue in dispute and thus be a much shorter trial than if a jury were to be empanelled.

18   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].

19   I respectfully 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, a matter of days difference is in my view not persuasive. Nonetheless, in this particular instance the parties have indicate that there would be significant cooperation in order to further narrow the issues.

20 Pursuant to s 420E(3), I take into account the submissions of the prosecution as outlined above in point form. At the oral hearing of this application the prosecution adopted the points it made in writing and ultimately submitted that in this case a judge alone trial is in the interests of justice.

Conclusions

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

(a) section 420E(1)(a) – the charges on the indictment are all offences under the law of Victoria;

(b) section 420E(1)(b) – the accused consents to the making of the order;

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

(d) section 420E(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

22 Pursuant to s 420E(1) of the CPA, I order that the six charges on Indictment K10784116 be heard and determined by judge alone, without a jury.

23   The trial date will be fixed following consultation with the parties and the availability of a judge.