Director of Public Prosecutions v Hills (a pseudonym)

[2021] VCC 76

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOUGLAS HILLS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE HANNEBERY
WHERE HELD:	ON THE PAPERS
DATE OF RULING:	9 February 2021
CASE MAY BE CITED AS:	DPP v Hills (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 76

REASONS FOR RULING
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Subject:  Criminal Law – Application for trial by judge alone.

Catchwords:             Application for trial by judge alone – Interests of justice - The need for the administration of justice to continue – Delay.

Legislation Cited:     Criminal Procedure Act 2009, s 420D; 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 S. Lenthall	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J. Stavris

To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms.

HIS HONOUR:

Introduction

1     On Indictment L10853997, the accused, Douglas Hills,[1] is charged with three charges of incest and four charges of indecent act with a child under 16 years. It is alleged that these offences occurred between 12 July 2014 and 25 December 2014.

[1]A pseudonym.

2     Mr Hills was committed for trial in the County Court on 12 August 2020. There have been three Circuit Directions Hearings in this matter. No trial date has been fixed.

3 On 15 December 2020, Mr Hills made an application pursuant to s 420D of the Criminal Procedure Act 2009 (‘the CPA’) to have the trial heard by judge alone. The application was filed with written submissions.

4     The prosecution filed written submissions in response on 22 December 2020, indicating no opposition of an order for trial by judge alone.

Nature of the case

5     The complainant is the biological daughter of the accused. She was 12 years old at the time of the alleged offending.

6     The prosecution alleges that at the time of the offending, the complainant was living with her mother. Approximately every third weekend, the complainant and some of her brothers would stay with the applicant at the applicant’s parents’ house. During these access visits, her brothers would generally sleep on the floor whilst the complainant would frequently share a bed with the accused.

7     It is unnecessary for the purposes of this application to detail the precise sexual acts alleged to constitute the charges, beyond saying that the offences are said to have occurred over five separate occasions at the location described above when the complainant was staying overnight.

8     The complainant is alleged to have disclosed the offending in 2016 first to a friend, then to her mother. In 2017 the complainant made further disclosures to the girlfriend of the applicant and the matter was then reported to police. The allegations as particularised in the charges on the indictment are based upon the VARE conducted with the complainant on 13 March 2017.

9     The applicant was arrested on 11 May 2017 and interviewed by police. He confirmed the access visits with the complainant and her brothers at various places, including his parents’ house. The applicant admitted that during the visits he and the children would all sleep in the same bedroom, with some of the children sleeping on the floor and some sleeping in the bed with him. He admitted rubbing the complainant’s back, sharing a bed with the complainant alone on occasion and admitted that he would often only wear underwear to bed. The applicant denied all offending against the complainant.

10   It is evident from both the applicant’s answers in his interview and from the Defence Response dated 2 November 2020 that the core issue for the trial will be whether the charged acts occurred at all. Whilst four of the charges require the prosecution to prove that the act alleged was indecent, there is no suggestion that this would be a matter in contention at trial.

11   By way of pre-trial issues, the material reveals that these are likely to include;

a) Applications to cross examine a number of witnesses pursuant to s.198A of the CPA;

b)    A Ground Rules Hearing and Special Hearing;

c)    A defence challenge to the admission of evidence said by the prosecution to go to tendency;

d)    A defence challenge to the admission and or / use of certain evidence as incriminating conduct;

12   The defence estimate pre-trial matters would take 2.5 days and the trial 5-7 days.

Legislative framework

13   On 25 April 2020 the COVID-19 Omnibus (Emergency Measures) Act 2020 commenced operation. 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,[2] the first application for judge alone under the amended provisions.  I respectfully agree with, and adopt his Honour’s detailed analysis.

[2][2020] VCC 726 (Combo).

14 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.

15   As was observed by his Honour 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.[3]  His Honour formed that view which is consistent with authority in other Australian jurisdictions.[4]

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

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

16   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:[5]

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.[6]

[5][2020] VCC 1166.

[6]Ibid at [37].

17   This trial concerns offending alleged to have occurred more than six years ago. The matter has already been the subject of a 34 month delay between the accused being interviewed by police and charges being laid.  With the added delay as a result of the suspension of jury trials, a jury may not be able to hear the trial until 2022 and an even later date for the hearing of the matter is possible.

18   In Combo his Honour 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.[7]

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

Have the criteria for a trial by judge alone been met?

19   Based on the application for trial by judge alone filed on behalf of Mr Hills, plus the indictment filed in relation to this matter, it is apparent that:

a)    Each charge on the Trial Indictment is an offence under the law of Victoria;

b)    Mr Hills consents to trial by judge alone without a jury; and,

c)    Mr Hills has obtained legal advice on whether to give consent to trial by judge alone, including the legal effect if an order is made for trial by judge alone.

20 As such, the matters at s 420D(1) (a) through (c) are made out. That leaves for determination whether the Court ‘considers it is in the interests of justice to make the order’ pursuant to s 420D(1)(d).

Conclusions

21 I am satisfied that the precondition contained in s 420(1)(d) of the CPA is established. In making this determination I have had regard to the following matters relevant to the ‘interests of justice’ as applies to this case:

a)    The legislation clearly contemplates that there is a need for trials to continue notwithstanding the challenges that pandemic has posed to the justice system. That need only becomes greater as the backlog of trials continues to grow;

b)    The delay in having the trial heard before a jury is likely to be significantly greater than would otherwise have been the case but for the pandemic restrictions on the listing of jury trials. The capacity to have the matter heard sooner as a Judge alone trial is a compelling reason in support of granting the application;

c)    The prosecution do not oppose the application;

d)    There are no concerns about the manageability of the trial should it proceed as judge alone;

e)    The dispute in the trial is a factual matter, namely whether the charged acts occurred at all. The forensic reality of the trial is that it is highly improbable that there will be the need to consider any objective community standards; and

f)     Based on the written submissions, Mr Hills’ subjective view is to have the matter heard by Judge Alone. The reasons expressed for this preference are because the trial involves allegations of sexual acts against a child, and concerns about the intention of the prosecution to adduce evidence said to reveal a tendency by Mr Hills to be sexually interested in his daughter, plus evidence alleged to be incriminating conduct. Whilst I do not consider that the nature of the allegations, nor the type of evidence sought to be adduced by the prosecution in this case make the argument that the hearing of the trial by Judge alone is in the public interest any stronger, I do place some limited weight on the subjective preference of Mr Hills that the matter be heard by Judge Alone in exercising my discretion to grant the application. I note, however, that the other matters I have listed have been more persuasive in reaching this conclusion.

Orders

22 Pursuant to s 420D(1) of the CPA, I order that all seven charges on Indictment L10853997 be heard and determined by judge alone, without a jury.

23   This order is made subject to the trial being capable of commencing before 26 April 2021. The conditional nature of this order is necessary because the legislation enabling the court to order trials by Judge Alone expires 26 April 2021.

24   This matter will be adjourned to a date to be fixed for Mention.

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