Director of Public Prosecutions v Duong (Judge-alone ruling)
[2022] VSC 635
•24 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0291
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| KEVIN DUONG | Accused |
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| JUDGE: | Jane Dixon J |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | In chambers |
| DATE OF RULING: | 24 October 2022 |
| CASE MAY BE CITED AS: | DPP v Duong (Judge-alone ruling) |
| MEDIUM NEUTRAL CITATION: | [2022] VSC 635 |
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CRIMINAL LAW – Application by accused for judge alone trial – COVID-19 emergency provisions – Interests of justice – Application not opposed by prosecution – Balancing of competing considerations – Application for trial by judge alone granted – Criminal Procedure Act 2009 – ss 420E, 420ZJ.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Grant | Office of Public Prosecutions |
| For the Accused | Mr A Marshall | Chris McLennan & Co |
HER HONOUR:
On 9 March 2021, Kevin Duong was committed to stand trial in the County Court of Victoria for the offence of dangerous driving causing death, contrary to s 319(1) of the Crimes Act 1958. Due to the backlogs caused by the COVID-19 pandemic, the matter was transferred to the Supreme Court of Victoria at Melbourne by order of Hollingworth J dated 27 October 2021.
On the evening of Saturday 20 July 2019 at approximately 8.40pm, the accused was involved in a motor vehicle accident at the intersection of Blackburn Road and Wellington Road in Clayton. The prosecution case is that Mr Duong drove in a dangerous manner by failing to indicate or keep a proper look out for oncoming traffic as he entered the intersection and made a right turn, before driving into the path of a Maxi Cab. The alleged victim, David Dang, was in a wheelchair that was restrained in the rear of the Maxi Cab.[1] As a result of the collision, Mr Dang sustained life-threatening injuries and died in hospital the following day.
[1]Mr Dang suffered from a genetic neuromuscular condition which necessitated the use of a wheelchair for his mobility.
By written application filed at 3.13pm on 12 October 2022, the Defence applied for a trial by judge alone (‘Application’) pursuant to s 420E(2)(b) of the Criminal Procedure Act 2009 (‘CPA’), together with submissions in support of that Application.
On 13 October 2022, I heard some further brief oral submissions from the parties. On 19 October 2022, I received a written outline of submissions from the Crown giving reasons for not opposing the application.
I have decided to accede to the Defence application for the reasons that follow.
For the purposes of the Application, s 420E of the CPA provides:
Court may order trial by judge alone if pandemic order is in force
(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.
The relevant pandemic order[2] that was in force at the time this Application was filed is the Pandemic (Public Safety) Order 2022 made on 22 April 2022. That order expired on 12 October 2022 at 11.59pm.
[2]See s 165AI(1), Public Health and Wellbeing Act 2008 (Vic) for the definition of “pandemic order”.
Accordingly, I am satisfied that there was a pandemic order in force at the time the Application was filed for the purpose of s 420E(2)(b) of the CPA.
I note that in the time between the filing date of the Application and the date of this ruling, the pandemic declaration has ceased to be in force. Notwithstanding that fact, pursuant to s 420ZJ(3) of the CPA, this Court has the power to hear and determine applications made under s 420E.
Relevantly, s 420ZJ of the CPA provides:
Application for trial by judge alone not affected by cessation of pandemic declaration
(1)This section applies if—
(a)an application is made for an order under section 420E; and
(b)the application is made while a pandemic declaration is in force; and
(c)the pandemic declaration ceases to be in force before the application is determined.
(2)The pandemic declaration ceasing to be in force does not affect the application.
(3)Without limiting subsection (2)—
(a)the application may be heard and determined after the pandemic declaration ceases to be in force; and
(b)if an order under section 420E is made on the application, the trial to which the order relates may be held by judge alone, without a jury, after the pandemic declaration ceases to be in force.
(4)Subsections (2) and (3) apply in relation to an application whether or not the application had been heard to any extent before the pandemic declaration ceased to be in force.
I am therefore satisfied that it is within my power to hear and determine this Application.
There is no question that the requirements of s 420E(1)(a)-(c) have been met. First, the charge on the indictment is an offence under the law of Victoria. Second, the accused consents to being tried by judge alone without a jury. Third, I am satisfied that the accused has obtained legal advice before giving his consent to being tried by judge alone, including legal advice on the effect of such an order being made.
Accordingly, the key question to be determined on this Application is whether it is in the interests of justice that the trial in this matter be heard by a judge alone, pursuant to s 420E(1)(d).
Submissions
The Defence submitted on behalf of Mr Duong that a judge alone trial would be in the interests of justice as there is a need for this matter to be finalised in a timely manner. It is convenient to summarise the Defence submissions as follows:
(a) A number of expert witnesses for both the Crown and the Defence have periods of unavailability that are difficult to reconcile. A judge alone trial would allow for a degree of flexibility with respect to taking their evidence and scheduling of hearing dates.
(b) A jury trial would preclude the possibility of listing the trial with disjointed trial dates (e.g., commencing trial on 14 November 2022, then adjourning part-heard until 5 December 2022).
(c) Moreover, if the matter were able to proceed with disjointed trial dates, a judge alone trial would better enable the parties to properly present their cases.
(d) Some of the key factual disputes in this case will turn on complex expert evidence, involving competing expert testimonies. A jury may not be well-equipped to deal with the complexity of the expert evidence.
In response to the defence application and arguments, the Crown did not oppose the Application and made submissions that were generally supportive of the propositions put forward on behalf of Mr Duong. They submitted that:
(a) The alleged offence relates to events which occurred on 20 July 2019.
(b) But for the impact of the COVID-19 pandemic and the disruptions to the court system flowing from related public health measures, this trial would have been heard in the County Court. The County Court has had a reduced capacity to conduct trials for some time, which has resulted in a considerable backlog of cases and significant delays to trial proceedings.
(c) In dealing with the backlog of criminal trials flowing from the pandemic, the Supreme Court has been hearing trials that would have otherwise been conducted in the County Court. This trial is one such example.
(d) It has long been accepted that it is in the public interest to ensure that all criminal trials are heard expeditiously. There is a public interest in ensuring that this trials is conducted expeditiously, particularly since it involves a death.
(e) While the Director accepts that the right to trial by jury is fundamental to the Victorian criminal justice system, and that a properly instructed jury would be well-placed to deal with complex expert evidence and evidence about emotive issues, it is relevant that—
(i) Mr Duong has elected to take part in a trial by judge alone;
(ii) The trial would involve consideration of complex expert evidence concerning accident reconstruction, the deceased man’s medical condition, and the potential impact of an incorrectly fitted seatbelt on the deceased’s injuries; and
(iii) The trial would require a jury to consider a number of emotive issues arising out of several features of this case, namely that the deceased suffered from Duchenne Muscular Dystrophy, and that the deceased was a relatively young man (18 years of age).
(iv) The Defence expert, Dr Byron Collins, will be unavailable from 15 November 2022 until later in November. In the normal course of events, an expert witness such as Dr Collins would not be called until the jury had heard from civilian witnesses and the expert witnesses called by the prosecution. If the current trial were conducted in that manner, Dr Collins would not be available to give evidence at the appropriate time, and proceedings would need to be adjourned for some time. As there are a number of prosecution witnesses who will not be available in December 2022, the trial would not be able to be heard until 2023, which is neither in the interests of Mr Duong, nor in the interests of the deceased’s family.
(v) The delay of this trial would inevitably lead to the delay of other criminal proceedings, which, having regard to the very large backlog of cases due to the pandemic, would not be in the interests of justice.
Guiding principles
The relevant principles guiding the grant of an order for trial by judge alone were identified by Chief Justice Kidd in Combo[3] and have since been endorsed by the Court of Appeal.[4] Those six guiding principles may be briefly summarised as follows:
[3][2020] VCC 726 (Chief Justice Kidd) (‘Combo’).
[4]See Hooper & Oxymed Australia Pty Ltd v DPP [2021] VSCA 68 [37] (Kyrou, Kaye and Emerton JJA) (‘Oxymed’) and McInnes v The Queen [2022] VSCA 188 (‘McInnes’).
(1) Section 420E does not create any presumption in favour of jury trials, nor does it impose a corresponding legal onus on either party to rebut any such presumption.
(2) The expression ‘the interests of justice’ in s 420D(1)(d) is broad, and includes not only the interests of the parties, but also the public interest in ensuring the proper functioning of the criminal justice system within the courts.
(3) It was the intention of Parliament that justice continue to be administered by the courts during the COVID-19 pandemic. The advantage of continuing with the business of the court is a significant factor in favour of ordering a trial by judge alone.
(4) The subjective views of the accused are a relevant consideration in determining whether a judge alone trial would be in the interests of justice.
(5) The question of delay is relevant. The advantage of obviating delay is a significant factor in favour of ordering a trial by judge alone.
(6) Where a fact in issue involves the application of an objective community standard, that consideration tends in favour of a jury trial.
Having reviewed the submissions of both parties in light of the legal principles I have outlined, I am satisfied that it would be in the interests of justice for this trial to be heard by judge alone.
Firstly, a trial by judge alone would permit this Court to conduct the trial with substantially more flexibility than a trial before a jury. It has been foreshadowed by counsel for both parties that witness unavailability requires a level of flexibility with timetabling that would not be possible in a jury trial. A trial by judge alone would support flexible timetabling alternatives such as hearing the Crown’s evidence in November and Mr Collins’ evidence in December, separated by a two-week adjournment, or hearing evidence or legal submissions outside the normal sitting hours maintained for jury trials.
Secondly, although the pandemic order has ceased since this Application was filed, the court system faces an ongoing backlog of cases which some estimate will take years to clear.[5]
[5][2022] VSCA 188 [68] (‘McInnes’).
Thirdly, in this case there has already been significant delay from the date of the death of David Dang on 20 July 2019 until the present. Delay to trial impacts adversely upon both the family and loved ones of the victim as well as on the accused and his family. A further potential delay to a trial date in 2023 is foreshadowed if a jury trial is required due to witness scheduling difficulties and the upcoming Christmas break.
Fourthly, recent authorities appear to weigh strongly in favour of allowing judge alone applications where they are sought by an accused after having obtained appropriate legal advice.[6] Relevantly, in McInnes v The Queen, (‘McInnes’),[7]the Court of Appeal overturned the learned trial judge’s decision to refuse an application for trial by judge alone in circumstances where the accused’s application was not opposed by the prosecution. In exercising the Court’s discretion under s 420E(1)(d) afresh, Priest and Beach JJA said—
[A]ll other things being equal, we consider that it would be an unusual case in the current climate in which an application by an accused person for a judge alone trial would be refused in the face of an absence of opposition by the prosecution.[8]
[6]McInnes [65]; Oxymed [44]; Combo [66].
[7][2022] VSCA 188.
[8]Ibid [66].
Fifthly, the expert evidence in this case and legal principles attaching to the accident reconstruction and the incorrectly fitted seatbelt aspect are complex and whilst a jury would be well capable of determining the factual issues, there may be a slight advantage a judge alone trial. For example, it would allow the evidence to proceed more quickly rather than lengthy evidence in chief being required to flesh out the contents of expert witness statements and reports. The potential complexity of the evidence[9] in this trial is a relevant consideration to be weighed among other considerations.
[9]In Oxymed, the Court acknowledged that the potential complexity of the expert evidence might favour a trial by judge alone, adding that in cases involving complex expert evidence, it may be advantageous for parties to receive a reasoned judgment explaining the basis of the court’s decision: Oxymed at [84].
Sixthly, whilst all cases involving a death can pose challenges for a jury due to the emotional content of the material put before them, in this case there is live footage from the taxicab of the moments before and after the death of Mr Dang; a young man who incapacitated by Duchenne’s Muscular Dystrophy.
Application of objective community standards
Although it was not raised in either party’s submissions, I note that where a fact in issue involves the application of community standards, this is a factor that tends in favour of a jury trial.[10] This is because ‘an assessment of objective community standards is best undertaken by a group of members of the community’.[11]
[10]Combo [63], cited with approval in Oxymed and McInnes.
[11]R v Homann [2018] NSWSC 198 [36]; The community receives important collateral benefits from trial by jury in the involvement of the public in the administration of justice and in keeping the law in touch with community standards: Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4.
While the issue of dangerousness calls for the application of objective community standards, pointing in favour of trial by jury, no single factor is determinative.[12] On my assessment this factor is outweighed by the other pertinent factors in this case militating in favour of a judge alone trial. The alleged offence occurred in 2019, so there has already been substantial delay up to the present time. Further adjournment of the trial to 2023 to accommodate witness unavailability appears highly undesirable.
[12]In R v Warren Scott [2021] NSWSC 1004, although the application of objective community standards was a relevant consideration in determining a contested application for trial by judge-alone, this was ultimately outweighed by other considerations.
Now that the pressure of the pandemic is easing there is an important need to ensure that judicial and court resources are used to their fullest potential. It would not be in the interests of justice for a case scheduled to be before a judge of this Court in November to be put off to 2023, when court schedules are already being filled. I have also had regard to the overall pressures on the criminal justice system due to COVID-19, and the accused’s informed decision to apply for a trial by judge alone, as well as the lack of opposition by the Crown. I have given modest weight to the aspects of the complexity of the expert evidence which would take less time before a judge alone, and to the emotionally challenging nature of some of the prosecution evidence.
Having regard to all the relevant factors in this case, I am satisfied that it is in the interests of justice for this trial to be heard by a judge alone.
Therefore, the application for a judge alone trial is granted.
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