Director of Public Prosecutions v Fleming
[2021] VCC 240
•15 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-01714
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN FLEMING |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Determined on the papers | |
DATE OF RULING: | 15 March 2021 | |
CASE MAY BE CITED AS: | DPP v Fleming (Application for trial by judge alone) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 240 | |
REASONS FOR RULING
Subject: CRIMINAL LAW–Application for trial by judge alone.
Catchwords: Application for trial by judge alone under COVID-19 emergency provisions–Application supported by the prosecution–Interests of justice–Need for administration of justice to continue–Delay.
Legislation Cited: Crimes Act 1958 ss. 22, 23, 31D(1), 317AC(1), 317AE(1); Criminal Procedure Act 2009, s.420D;COVID-19 Omnibus (Emergency Measures) Act 2020.
Cases Cited: DPP v Combo [2020] VCC 726; DPP v Wang (Ruling No 1) [2020] VSC 438.
Ruling: Application for trial by judge alone granted.
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D. Rofe | Chester Metcalfe & Co |
| For the Respondent | Mr D. Porceddu | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1 The accused, Stephen Fleming (the applicant’), is charged on Indictment K12702695 with the following nine indictable offences:
· Charges 1 and 2, intentionally exposing an emergency worker to risk by driving;
· Charges 3 and 4, recklessly exposing an emergency worker to risk by driving;
· Charges 5 and 6, intimidation of a law enforcement officer;
· Charges 7 and 9, recklessly engaging in conduct endangering persons; and
· Charge 8, recklessly engaging in conduct endangering life.
2 For those charges, the applicant now makes application for a trial by judge alone pursuant to s.420D of the Criminal Procedure Act 2009 (‘the CPA’). A written application dated 10 March 2021 and written submissions in support have been filed by the applicant. The application is supported by the prosecution who have also filed written submissions. Both parties have indicated their consent to the application being determined on the papers.
Procedural history
3 The relevant procedural history of this case can be briefly stated. The offences are alleged to have been committed by the applicant in the course of two brief driving episodes in the early morning of 15 October 2019.[1] The applicant was arrested two days later, on 17 October 2019. After being interviewed and charged, he was then released on bail.
[1] Charges 1-7 relate to the first episode while charges 8 and 9 relate to the second episode. It is noted, however, that charges 3 and 4 are put in the alternative to charges 1 and 2 respectively; charge 5 is put in the alternative to charges 1 and 3, charge 6 is put in the alternative to charges 2 and 4 and charge 9 is put in the alternative to charge 8.
4 Following a contested committal hearing, the applicant was committed to this court on all charges on 14 December 2020. This case does not yet have a trial listing date. I note, however, that an initial directions hearing was held on 18 January 2021 and a directions hearing is listed for 19 March 2021.
5 A summary of prosecution opening and a defence response have already been filed.[2]
Delay to trial
[2] Dated 10 February 2021 and 26 February 2021, respectively.
6 In their written submissions, the prosecution accept that this case could not proceed as a jury trial this year and that a conservative estimate of the delay between the date of the alleged offending and any such jury trial is at least 2-3 years given the significant backlog of trials that currently exists within the County Court.
7 In that context, I note that the court is facing significant challenges addressing that backlog in light of the fact that all jury trials were suspended between March and November 2020 and that the resumption of jury trials which commenced in November last year has, of necessity, been limited in scope. Even now, only about 50% of the pre-Covid-19 number of trials can be conducted each week due to physical distancing requirements. While there are plans to try and increase the court’s capacity to conduct jury trials, it is difficult to accurately predict when and how those plans will unfold. Clearly, the date on which the court can start to effectively start to reduce the jury trial backlog is still quite some way off by any measure. Relevantly, the court’s ability to utilise the judge alone mode of trial in appropriate cases is fast receding as the emergency legislation which created and permits that new mode of trial is due to sunset on 26 April 2021.
8 In sharp contrast to the delay which would be involved in holding a jury trial in this matter, in the event that this application is granted, a trial by judge alone could commence very soon, in a matter of weeks and by 26 April 2021 at the very latest.
Prosecution case at trial
9 The prosecution has fully outlined its case against the applicant in the aforementioned summary of prosecution opening and to some extent, in their written submissions for this application. To the extent that it is necessary to refer to it now, I note the following.
First episode: charges 1-7
10 At approximately 2.30am, police intercepted the applicant’s vehicle after they saw him driving at the intersection of Lower Plenty Road and Greensborough Road in Rosanna. He was unlicensed. As directed by them, he parked his vehicle in nearby Rowell Street, about 11 metres from the intersection with Rosanna Road. Rowell Street is a no through road. There were no vehicles parked in front of the applicant’s vehicle.
11 The police stopped their own vehicle approximately 5 metres behind his vehicle. The two police officers then approached. One of them had activated her body worn camera. The applicant failed to produce his driver’s licence on request, and provided what the police officers believed was a false name and address. After they queried him about their suspicions and he denied them, the officers returned to their vehicle to make further enquiries.
12 At about this point in time, the applicant began to reverse his vehicle towards the police vehicle at a fast rate of speed. The driver of the police vehicle had to take immediate evasive action by reversing heavily to prevent being hit by the applicant’s vehicle. After that manoeuvre, the two vehicles ended up facing each other in Rosanna Road, three to four metres apart, with the applicant’s vehicle being on the incorrect side of the road.
13 The applicant is then alleged to have accelerated heavily and driven straight at the police vehicle. Again, the police had to take immediate evasive action to avoid being hit.
14 The applicant then continued driving at a fast rate of speed while on the wrong side of Rosanna Road, before turning right onto Lower Plenty Road. Police attempted to pursue his vehicle but soon lost sight of it.
Second episode: charges 8-9
15 At approximately 2.50am on that same morning, the applicant is alleged to have been driving northbound on the Greensborough Highway when he drove through a red light at the intersection with Grimshaw Street. He is alleged to have been travelling at 184km/h in an 80km/h zone at that time. Another vehicle was travelling in the vicinity at the time, in an eastbound lane on Grimshaw Street.
Record of interview
16 When later interviewed, the applicant admitted to having been intercepted by police and then driving off. He said he acted out of panic. He admitted reversing towards the police vehicle but not at speed. He claimed there was plenty of room and that he was not trying to run over the police or ram the police vehicle. He denied the allegation that police had to take urgent evasive action. He said he drove off normally and was not followed by the police.
Defence response and issues in dispute
17 The defence response makes clear that the applicant will plead guilty to charges 3 and 4 which as I have already noted, are alternatives to charges 1 and 2. It goes on to state that the main issues for determination in relation to the remaining charges for the first episode concern the mens rea and intention elements. For charges 7-9, the issue is whether the conduct of the applicant is sufficient to make out the charged offences. The focus for each contested charge is likely to be on mixed questions of law and fact rather than primarily on fact finding. For example, whether the applicant drove on the wrong side of the road, whether the two vehicles were facing each other and whether the applicant intentionally exposed the two officers to risk by driving or intentionally intimidated them.
Legislative framework and relevant legal principles
18 In DPP v Combo[3] (‘Combo’), Chief Judge Kidd determined the first application for a trial by judge alone brought under the new Victorian provisions. His judgement sets out the relevant legislative framework and legal principles regarding trial by judge alone. Like Hollingworth J in DPP v Wang (Ruling No 1)[4] I am grateful for the careful and detailed analysis which His Honour undertook, and I respectfully agree with and adopt that analysis for the purposes of this ruling.
[3] [2020] VCC 726.
[4] [2020] VSC 438.
19 The COVID-19 Omnibus (Emergency Measures) Act 2020 was passed on 25 April 2020 and is clearly designed to ‘temporarily’ modify the laws of this state in response to the COVID-19 pandemic.[5] An important aspect of the changes made to the CPA, is the provision for trial by judge alone as a mode of trial for indictable criminal charges, providing certain specified criteria are met and it is in the interest of justice for the trial to be conducted in that manner.
[5] The relevant provisions permitting trial by judge alone were to be repealed 6 months after their commencement date, that is, on 24 October 2020. However, they were ultimately extended by a further 6 months.
20 Section 420D of the CPA is the operative provision and is in these terms:
Section 420D–Court may order trial by judge alone
(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 can be seen, section 420D(1) sets out four pre-conditions which must be met before the Court’s discretion to make an order is enlivened.
22 The language used in s.420D neither creates a presumption in favour of jury trials nor any onus on either party to rebut such a presumption. The default position is, therefore, that there will be a jury trial unless and until the Court’s discretion is enlivened by the establishment of the four criteria set out in s.420D(1).[6] A party bringing an application does, however, bear an evidential onus to satisfy the Court not only that the discretion to make an order is enlivened, but also that such discretion should be exercised in their favour in the particular circumstances of the case.
[6] As noted by Chief Judge Kidd in Combo at [47] and footnote 16, this construction is also consistent with authority in other Australian jurisdictions.
23 As is clear from subsections (3) and (4) of s.420D, while the Court must have regard to any submissions made by the prosecution in determining whether to make an order under subsection (1), their consent is not a necessary pre-condition to the making of such an order.
Interests of Justice
24 In Combo, Chief Judge Kidd noted that the legislation and relevant case law from other jurisdictions suggest that the following, inter alia, may be said of the ‘interests of justice’ requirement in s.420D(1)(d)[7]:
[7] See [48]-[66] of the judgement.
· 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;
· Whilst, as a general rule, the mode of trial is to be treated as a neutral consideration, it cannot be considered in isolation from the issue of timing in the current COVID-19 environment. In enacting the relevant provisions as and when they did, Parliament must have intended that justice was to continue to be administered by the courts even during the current public health emergency created by COVID-19. The purpose of s.420D was to provide the courts with the option to conduct trials by judge alone, in appropriate cases;
· In determining where the interests of justice lie, delay may be a relevant consideration on a number of levels. The interests of justice are not served if accused persons, particularly those in custody, have to wait for excessively lengthy periods before their trial can be heard. Delay may impact on the quality of evidence given and give rise to prejudice to an accused. Cases involving complainants may well highlight the desirability of expeditious justice.
· Whilst an accused cannot demand a trial by judge alone, their subjective views are nonetheless a relevant consideration in determining where the interests of justice lie in a particular case. In the context of the current COVID-19 emergency, such applications involve accused persons, acting on legal advice, choosing to forego their right to a later jury trial and seek an earlier trial by judge alone. Some weight needs to be accorded to the subjective preference of an accused to be tried expeditiously by a judge alone rather than experiencing a substantial wait for a trial by jury.
25 I wish to specifically endorse and adopt what the Chief Judge Kidd said about delay at [61]-[62] of his judgement in Combo, which I will set out in full now:
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.
Requirements of Section 420D(1)(a)-(c) are established
26 There was no dispute between the parties as to the first three requirements having been made out in this case. As is clear from the current indictment, each of the nine charges contained therein is for an offence under the law of Victoria. The requirement in s.420D(1)(a) is therefore satisfied. The requirement in s.420D(1)(b) is clearly established where, as here, the applicant’s legal representatives have taken instructions and then indicated his consent to the making of an order granting trial by judge alone in the written application they have filed on his behalf. The same may be said of the requirement in s.420D(1)(c). In the written application, the applicant’s legal representative has informed the court that the applicant had obtained legal advice on whether to give that consent, including legal advice on the effect of such an order.
Applicant’s submissions regarding s.420D(1)(d)
27 As with almost all of the previous applications, this application turns on a consideration of the ‘interests of justice’ pre-condition contained in s.420D(1)(d).
28 In his written submissions, counsel for the applicant essentially sought to rely on the following matters in combination to persuade this court that it was in the interests of justice to make an order for trial by judge alone in this case:
(i) The applicant consents to an order for a judge alone trial;
(ii) The significant delay; and
(iii) The shorter duration of a judge alone trial as compared to a trial with a jury;
(iv) There is no requirement for the ultimate fact finder to apply any objective community standard.
29 I think it fair to say that the emphasis in counsel’s written submissions was, understandably on the factor of delay. He submitted that it was in the interests of not just the applicant but also of the prosecution and the public for the resolution of this matter not to be delayed.
30 As regards the comparative duration of the trial, counsel estimated that if this was a judge alone trial, the matter would take 3 days inclusive of addresses. By contrast, he estimated that a trial by jury would take longer, approximately 5 days. He went further and submitted that it is in the interests of the public and the complainants for this matter to be disposed of in an orderly, timely and cost-effective manner.
31 In addition, he pointed out that there are no real factors that point in favour of a jury trial. For example, none of the charges require the ultimate fact finder to apply objective community standards.
Stance and submissions of prosecution regarding s.420D(1)(d)
32 In his written submissions, prosecuting counsel supported the application for the making of an order for a judge alone trial. Those submissions were brief and to the point, focussing entirely on the significant issue of delay. Counsel estimated that there would be a minimum 2-3 year delay before a jury trial could be held and submitted that would create uncertainty in the minds of the applicant and complainants. It was, he submitted, in the interests of justice to try this matter before a judge alone so as to facilitate a resolution at the earliest reasonable opportunity.
Analysis
33 As I have already indicated, I am satisfied that the essential pre-conditions set out in s.420D(1)(a)-(c) of the CPA have been made out.
34 I am also satisfied that the remaining pre-condition contained in s.420D(1)(d) is established as I am firmly of the view that it is in the interests of justice that an order be made under s.420D that the applicant be tried by judge alone.
35 In my view, there are a combination of factors which favour the making of such an order. By far, the two most important factors relate to the need for the administration of justice to continue in the current COVID-19 environment and the delay.
36 There is, as contemplated by the relevant legislation, a need for trials to continue in this state and to be seen to continue despite the current suspension of jury trials.
37 The factor of delay in this case is a significant consideration which points strongly in favour of a judge alone trial notwithstanding that the applicant is on bail. I accept the prosecution estimate as to the likely extent of the delay before a jury trial could be conducted in this case. On any view, that delay will be substantial. This case has only recently been transferred to this court via a committal proceeding and does not appear to have any features that would support an urgent or prioritised listing.
38 I also accept that such a delay would weigh heavily on the applicant and the complainants if this application is not granted. Clearly, the applicant is genuinely desirous of facilitating the final resolution of this matter at the earliest possible date and, based on what prosecuting counsel has submitted, so too are the complainants.
39 I consider that the delay may well have some adverse impact on the memory of the relevant witnesses. After all, there is an appreciable difference between having to try and accurately recollect events from mid-October 2019 in March/April 2021 compared to in the early to mid-part of 2022. It may in the end not be as significant a factor as some other cases involving delay, but I still consider it to be a relevant consideration.
40 I have also had regard to the fact that the applicant has, after receiving legal advice, consented to forego a later jury trial in favour of an earlier trial by judge alone.
41 In my view, the purported difference in trial duration between the two modes of trial is not a relevant consideration in the context of this case. The applicant’s counsel provides no basis for or the reasoning behind his estimates. It is speculative in the extreme. In any event, trial by either mode is likely to be of fairly short duration given the limited issues involved.
42 Whilst neither party made any submissions as to the relevance or otherwise of the fact that the ultimate fact finder in this case would need to assess the credibility of two important witnesses (the two police officers) with regards to the first driving episode, I have concluded that it ought to be treated as a neutral consideration.
43 After carefully considering and weighing all of the relevant considerations in this application, I have ultimately concluded that the interests of justice lie in favour of making an order for a trial by judge alone. In all of the circumstances, and in particular, by reason of the significant delay involved in this case, it is appropriate to grant the application made by the applicant and to make the order sought under s.420D of the CPA.
Orders
44 Accordingly, I make the following order.
45 Pursuant to s.420D(1) of the CPA, I order that the nine indictable charges contained in Indictment K12702695, be heard and determined by a judge alone, without a jury.
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