Director of Public Prosecutions v Carlton (a pseudonym)
[2020] VCC 1272
•21 August 2020
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Revised
Not Restricted
Suitable for Publication
DIRECTOR OF PUBLIC PROSECUTIONS v ANDREW CARLTON (a pseudonym) ---
JUDGE:
HIS HONOUR JUDGE WRAIGHT
WHERE HELD:
Melbourne
DATE OF HEARING:
14 August 2020
DATE OF RULING:
21 August 2020
CASE MAY BE CITED AS:
DPP v Carlton (a pseudonym)
(Application for trial by judge alone)
MEDIUM NEUTRAL CITATION:
[2020] VCC 1272
REASONS FOR RULING
---Subject: CRIMINAL LAW – Application for trial by judge alone.
Catchwords: Application for trial by judge alone under COVID-19 Emergency provisions – Consent by both parties – Interests of justice – Significant delay – Youthful accused awaiting trial – Complainant – Duplication of evidence and logistics of witnesses giving evidence not relevant to interests of justice – No application of objective community standards.
Legislation Cited: Criminal Procedure Act 2009; COVID-19 Omnibus (Emergency Measures) Act 2020
Cases Cited:DPP v Combo [2020] VCC 726; The QueenvGittany [2013] NSWSC 1503; The Queenv Belghar [2012] NSWCCA 86; DPP v Verduci [2020] VCC 1166; The Queen v Ritchie (a pseudonym) [2020] VCC 1111; The Queen v MPW [2020] NSWDC 170.
Ruling: Application for trial by judge alone granted.
---
APPEARANCES:
Counsel Solicitors For the DPP Mr P Kounnas Office of Public Prosecutions For the Accused Ms C Hollingworth Pica Criminal Lawyers HIS HONOUR:
Introduction
1 On Indictment H11974343, the accused, Andrew Carlton[1], has been charged with one count of rape[2] that is alleged to have occurred on 8 July 2017.
[1] A pseudonym. To ensure that there is no possibility of identification of the complainant, this ruling has been anonymised by the adoption of a pseudonym in place of the name of the accused.
[2] Pursuant to s 38(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
2 On 15 July 2020, the applicant made an application pursuant to s 420D of the Criminal Procedure Act 2009 (the CPA) to have the charge heard by judge alone. The application was filed with written submissions.
3 On 29 July 2020, the Court directed the parties to file further submissions in relation to the interests of justice condition pursuant to s 420D(1)(d), specifically addressing the applicability of an objective community standard.
Procedural history
4 This matter has had a long and somewhat complex procedural history, some aspects of which will be relevant to the foreshadowed pretrial arguments.
5 The matter was initially committed to this Court on 10 November 2017 for a plea hearing, after the accused had received advice from his then solicitors. Counsel was briefed to conduct the plea however after reviewing the material and conferencing with the accused, counsel formed the view that there were a number of complex issues that had not been adequately explored or addressed. Counsel formed the view that psychological reports should be obtained.[3] Following receipt of those reports, counsel formed the view that the accused had a valid defence to the charge. As a result, the accused necessarily had to instruct new solicitors and a further neuropsychological report was obtained from clinical neuropsychologist Martin Jackson. The opinions of Mr Jackson will be relied on by the accused to support some pretrial arguments and he may possibly be relied on in the trial.
[3] Affidavit of Ashlee Cannon.
6 A trial was fixed for 19 August 2019 with an estimated duration of five days. On that date, defence made an application to adjourn the trial as the neuropsychological report referred to above was still being completed. The trial was adjourned to 2 March 2020. On 2 March 2020, a further application was made to adjourn the trial due to concerns in relation to the accused’s fitness to stand trial. The matter was adjourned to a future mention, however as a result of the onset of the COVID-19 pandemic, all jury trials were suspended in March 2020.
7 Concerns regarding the accused’s fitness were ultimately resolved and the Court was advised in May 2020 that the accused was fit to stand trial. Around the same time, an application was made by both parties to have the matter considered for Emergency Case Management pursuant to clause 5.2(a) of the Court’s Emergency Case Management Model Protocol (Phase 2) (ECMMP). The matter was accepted for inclusion for pretrial rulings pursuant to clause 6.1(a) of the ECMMP.
8 As a result of the issues that have arisen in relation to the psychological condition of the accused raised following the plea of guilty, two significant pretrial issues have been identified. The accused seeks rulings in relation to the admissibility of parts of his record of interview and a ruling in relation to the prosecution intention of leading the plea of guilty that was entered in the Magistrates Court. The parties now estimate that a trial by judge alone would be five to six days being two days of pretrial argument and three to four days for the trial proper. I will address the pretrial issues below as to some extent they have been raised in submissions in relation to the judge alone application.
Prosecution case
9 As noted, the accused has been charged with a single count of rape alleged to have occurred on 8 July 2017.
10 The complainant and the accused were both 22 years of age at the time of the alleged incident. The complainant and the accused were in a short-term casual relationship that ended in March 2017, however they remained friends.
11 On 7 July 2017, the complainant hosted some friends, including the accused, for drinks at her home before heading to a nightclub in Ringwood at about 10:30pm. The complainant was the designated driver for the evening. She drove her friends home from the nightclub at about 3:30am on 8 July 2017 and made up beds for everyone upon returning home.
12 It was agreed that the accused would sleep in the complainant’s bed. They went to bed at about 4:30am. The complainant was wearing underpants and a t-shirt and the accused was wearing tracksuit pants and a singlet top.
13 During the night the accused checked his phone, which lightened the room and he observed the complainant to be ‘dead asleep’. The prosecution case is that at this point the accused knew that the complainant was sound asleep but observed her to be twitching and sleep talking. The accused climbed on top of the complainant, pulling his tracksuit pants and underpants down. The accused then moved the complainant’s underwear to the side and penetrated her vagina with his penis. The prosecution allege that the complainant was asleep, which the accused knew, and therefore she was not consenting to this sexual act.
14 At about 7:00am the complainant awoke to the accused having penile-vaginal sex with her. The complainant yelled ‘what the fuck are you doing’ and the accused immediately withdrew his penis and apologised. The accused stated words to the effect of ‘I’m sorry. I don’t know what I was doing. You grabbed me like you wanted me’. The complainant began to cry and the accused left the complainant’s house.
15 The complainant left her bedroom and disclosed what happened to two of her friends. The two friends took the complainant to Maroondah Hospital for a medical examination. At the hospital, the complainant made a formal complaint to attending police.
16 Throughout the morning, the accused sent several text messages to the complainant and one of her friends, apologising for his actions. Later that day, the accused was arrested and interviewed at Knox Police Station. The accused made a number of admissions throughout the interview. Defence are seeking to exclude portions of this record of interview.
17 The accused admits the relevant background to the allegations and he admits that he penetrated the complainant’s vagina with his penis on 8 July 2017. The accused agrees that the complainant cannot consent when she is asleep.
18 The defence response states that the issue for trial is whether the prosecution can prove beyond reasonable doubt that the accused did not reasonably believe that the complainant was consenting at the time of penetration.
Legislative framework
19 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,[4] the first application for judge alone under the amended provisions. I respectfully agree with, and adopt His Honour’s detailed analysis.
[4] [2020] VCC 726 (Combo).
20 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.
21 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 interest of justice to make an order for trial by judge alone.[5] His Honour formed that view which is consistent with authority in other Australian jurisdictions.[6]
[5] Provided that the conditions of s 420D(1)(a), (b) and (c) are met.
[6]Combo at [46] and [47] and footnote 16.
22 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 recent decision of DPP v Verduci:[7]
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.[8]
[7] [2020] VCC 1166.
[8] Ibid at [37].
23 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. Given the relatively long history of this case so far, delay is clearly relevant. The alleged offending occurred more than three years ago and with the now added delay as a result of the suspension of jury trials, the delay may be close to four years before a jury is able to hear the trial.
24 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.[9]
[9]Combo at [61]-[62].
25 Moreover, cases involving complainants, as is the case here, highlight even more the desirability to have the case heard expeditiously where possible.[10]
[10] Ibid at [60].
Arguments of the Accused in relation to the ‘interests of justice’
Delay
26 In the submissions filed on behalf of the accused dated 15 July 2020, two primary arguments are made as to why it is in the interests of justice for the court to make an order for a judge alone trial.
27 The first submission is in relation to delay. In this instance, as noted above, there is likely to be a delay approaching four years between the date of the alleged offending and the commencement of a trial before a jury.
28 There is no doubt that a delay of four years is significant however it should be noted that the delay may be considered to be attributable to the accused as a result of his change of plea followed by two trial adjournment applications. That said, each of those matters have been prompted by the accused’s legal representatives in relation to concerns with his cognitive impairment and his fitness to stand trial. It is clear from the reports that were obtained and the submissions that have been filed, that the issues relating to the accused’s cognitive abilities are significant trial arguments and should be properly explored.
29 As noted, the accused was 22 years of age at the time of the alleged offending. In that regard 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 as follows:
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.[11]
[11] Ibid at [71].
30 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 the accused is a relatively young person and where the case involves a complainant.
‘Duplication of evidence’
31 The second submission relates to what has been referred to as ‘duplication of evidence’. As I understand the argument, the pretrial rulings will require the neuropsychologist, Martin Jackson, barrister Ashlee Cannon and solicitor Marcus Williams to give evidence both at a pretrial hearing and at the trial if portions of the record of interview and the plea of guilty in the Magistrates Court are ruled admissible. It is submitted that there are a number of portions of the record of interview that are sought to be excluded - of an interview that has in excess of 520 questions. Further, that because of the nature of the pretrial arguments, the evidence of the neuropsychologist alone will be lengthy and complex.
32 The ‘interests of justice’ argument on this point is that the evidence called at the pretrial would potentially be required to be given a second time before a jury. However it is argued that if the trial was to proceed before judge alone, the witnesses will only be required to give evidence once given that the judge will have heard all of the relevant evidence in the pretrial hearing and adapt it accordingly. Thus, as I understand the submission, the saving of time is sought to be considered as a relevant ‘interests of justice’ consideration.
33 This is a novel argument and there is no jurisprudence on whether avoiding duplication of evidence in the context of pretrial arguments is an ‘interest of justice’ consideration in the determination of ordering a judge alone trial. It would seem that assuming the contested evidence is ruled as admissible, the trial estimation may increase by a couple of days, and therefore in the context of a five day trial, two days would not add to the length of the trial unreasonably. In some circumstances the length of a trial may be allied with issues about funding which was touched upon in The Queen v Gittany[12] however avoiding duplication of evidence was not a consideration in that case.
[12] [2013] NSWSC 1503.
34 The relevance of ‘efficiency’ as it relates to the interests of justice argument was discussed in the New South Wales case of The Queen v Belghar[13] where McClennan CJ stated:
[13] [2012] NSWCCA 86.
In some cases the decision of a judge to order trial by judge alone has been influenced by consideration of the efficiencies available from a judge-alone trial and the advantage available to an accused person and the community if reasons for the verdict are available from the trial judge: Markou at [6]–[8]; Arthurs at [76], [92]; see also Rayney at [29], [37]. For my part I would accept that as part of the mix of issues which must be considered the likely length of the trial in a particular case, if conducted with a jury, compared with the likely length of trial by a judge alone, is relevant. The likely length of a trial may have to do with the complexity of the issues involved, the number of accused to be tried, or the number of witnesses to be called. The obligation on prospective jurors to spend many months away from their normal activities, including their employment with extremely modest monetary recompense, may be a significant matter in a particular case when determining where the interests of justice lie.
However, I would not accept that the interests of justice in s 132 can be informed by considerations of the overall efficiencies in the operation of a court which may be available from a judge-alone trial. No doubt they are important issues for the administration of justice and may ultimately lead to further legislative intervention but, as the majority determined in Pambula Hospital, they are not relevant to the interests of justice in the particular case.
As the reasons of Martin CJ in Arthurs make plain, the Chief Justice considered the requirement for a judge to give reasons to be a significant factor when considering where the interests of justice lie. To my mind the opportunity which a reasoned judgment affords to the accused and to the public to understand the steps in the reasoning process of the decision-maker, compared with the inscrutability of the jury's decision, will depending upon all the circumstances, be a factor which is relevant to the decision as to whether to order a judge-alone trial. However, it is but one factor and the weight to be given to it will depend upon the nature of the issues to be determined in the trial. If the trial will involve complex engineering, scientific or medical issues it may be more readily concluded that a verdict accompanied by the reasons of the trial judge will enhance the interests of justice, both in relation to the accused and the maintenance of confidence in the criminal justice system. It would inevitably facilitate an appeal if the trial judge has erred.[14]
[14] Ibid at [110]-[112].
35 In DPP v Verduci[15] 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.[16]
[15] [2020] VCC 1166.
[16] Ibid at [76]-[79].
36 In this case the ‘duplication of evidence’ argument is likewise, speculative. While it may be the case that the judge hearing the trial is able to confine some of the evidence as a result of the pretrial hearing, it will depend entirely on what is decided in relation to the pretrial issues. Further, in my view this is ultimately a trial management issue and not relevant to the considerations pursuant to the discretion to order a trial by judge alone by reference to the interests of justice.
The consent of the accused
37 In further submissions dated 29 July 2020, it is submitted on behalf of the accused that his application and consent is a highly significant factor in support of assessment of the interests of justice. While the accused’s consent is a necessary condition to be satisfied pursuant to s 420D(1)(b), here it is also argued that in the circumstances of this case, it is significant because the accused himself has asked for a judge alone to assess his credibility and reliability on the narrow issue of his reasonable belief in consent, rather than twelve of his peers. I accept that is a relevant consideration.
Application of a community standard
38 The accused accepts that if the complainant was asleep at the time of the penetration, then there is no consent. The accused asserts that he understood the complainant to be awake at the time of the penetration and that she was consenting. Thus it is submitted that the tribunal of fact must assess the accused’s record of interview, together with any future evidence, and form a view on his credibility and reliability. In that sense it was submitted on behalf of the accused that the consideration is a neutral one for the purposes of the interests of justice discussion. This point was also dealt with recently by His Honour Judge Gamble in The Queen v Ritchie (a pseudonym)[17] following an analysis of the relevant authorities in other jurisdictions which I respectfully adopt. It is clear that the Australian authorities do not support the proposition that where credibility issues are central to a trial, it is not a factor that militates in favour of a jury trial.[18]
[17] [2020] VCC 1111.
[18]The Queen v Simmons (No 4)(2015) 249 A Crim R 120 at [75]. See also Ritchie ibid at [84]-[98].
39 Recently, the New South Wales District Court considered an application for judge alone trial during the COVID-19 pandemic in a case factually similar to this one. In The Queen v MPW[19] the accused was facing two charges of rape alleged to have occurred while the complainant was sleeping. Like this case, the issue was whether the accused held a reasonable belief in consent. Priestley DCJ notes that:
[19] [2020] NSWDC 170.
The amended legislation specifically provides that s 132 is to continue to have effect. The reference by Adams J of subs (5) was a reference to the discretion of a Court to refuse a judge alone application, if it considers that the trial would involve a factual issue that requires the application of objective community standards, including but not limited to an issue of reasonableness, negligence, indecency, obscenity or dangerousness. The application of community standards is a matter which would tend in favour of a jury trial of a matter such as this one, dealing with sexual intercourse without consent or indecent assault.
I have had the Crown case statement provided to me and this forms part of exhibit A. The issues in this case, which have not been specifically outlined by the parties before me, but based on the Crown case statement, whilst they involve issues of community standards, it is hardly likely to be hotly in dispute that if, as alleged, the accused had sexual intercourse with an intoxicated and asleep female, there could be any suggestion that a judge may have some view of the community different from the 12 good members of the community forming the jury in that regard. That issue, on my view of it does not weigh heavily in this case.[20]
[20] Ibid at [20]-[21].
40 Ultimately, in the submissions filed on behalf of the accused, it is suggested that an objective community standard has no role to play. This position was confirmed during the mention called in relation to the application.
Arguments of the Prosecution in relation to the ‘interests of justice’
41 The prosecution agreed that it is in the interests of justice to have this matter heard expeditiously given its procedural history which has already resulted in substantial delay. The prosecution also agree that the trial is suitable to be heard by judge alone.
Logistical issues
42 The prosecution submit that the recent Stage 4 lockdown that Melbourne is experiencing has further impacted the administration of justice in a manner which is beyond the control of the Court and the parties and therefore relevant to the logistics of the running of this trial.
43 The principal submission on this issue is that the Office of Public Prosecutions cannot permit witnesses to attend the remote witness facilities it provides. Further, it was submitted that it is not appropriate for a complainant in a sexual case to give evidence from her home unsupported by a witness assistance service. It was put that to do so may traumatise the complainant, depriving her of the security of her own home.
44 While I agree with the points raised by the prosecution and I accept it is not appropriate for a complainant to give evidence from her home, at the mention of this matter I was not informed as to the wishes of this particular complainant or if other options were explored with her. At present, it appears that the Office of Public Prosecutions have taken a general view on this point rather than to review each matter on a case by case basis in order to find appropriate alternatives in unprecedented circumstances.
45 The restrictions that apply to Melbourne and Victoria are subject to change at very short notice. Thus, in my view, while there does seem to be some very real logistical issues, these are not matters that go to the interests of justice but rather, are matters for trial management at the time the trial is listed. For example, it may be that the complainant is willing to come to court and appear in a room in the court building with a support person in a ‘Covid safe’ environment,[21] while all other witnesses and counsel appear via a remote facility. Again, these are matters to be assessed by the trial judge as part of case management and are in my view not relevant to the interests of justice discretion.
[21] In the current circumstances this would also require the approval of the Chief Judge.
Application of a community standard
46 The prosecution submitted that this is not a case that requires the application of a community standard. The prosecution agree that the issues of belief in consent, in the circumstances presented, are factual issues.
Conclusions
47 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 charge on the indictment, rape, is an offence under the law of Victoria;
· s 420D(1)(b) – the accused consents to the making of the order;
· s 420D(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
· 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
48 Pursuant to s 420D(1) of the CPA, I order that the single charge on Indictment H11974343, rape, be heard and determined by judge alone, without a jury.
49 The matter will be listed for mention on Friday, 28 August 2020 at 9.30am.
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