Director of Public Prosecutions v Hobson

[2020] VCC 1557

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-19-01429

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMILY HOBSON

JUDGE:

HIS HONOUR JUDGE GAMBLE

WHERE HELD:

Melbourne

DATE OF HEARING:

4 September 2020

DATE OF RULING:

2 October 2020

CASE MAY BE CITED AS:

DPP v Hobson

(Application for trial by judge alone)

MEDIUM NEUTRAL CITATION:

[2020] VCC 1557

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 not opposed by the prosecution – Interests of justice – Need for administration of justice to continue – Significant Delay – Application of objective community standards.

Legislation Cited:       Crimes Act 1958, s 319(1); Criminal Procedure Act 2009, s.420D;

COVID-19 Omnibus (Emergency Measures) Act 2020.

Cases Cited: DPP v Combo [2020] VCC 726; DPP v Ritchie (a pseudonym) [2020] VCC 1111; DPP v Verduci [2020] VCC 1166; R v Qaumi (No 14) (2016) 265 A Crim R 575; R v Stanley [2013] NSWCCA 124; R v Homann [2018] NSWSC 198.

Ruling:   Application for trial by judge alone granted.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. L Richter	Doogue & George
For the Respondent	Mr. N Hutton with Ms. L Dawson	Office of Public Prosecutions

HIS HONOUR:

Introduction

1       The accused, Emily Hobson (the applicant’), is charged on Indictment J12662297 with having committed the indictable offence of dangerous driving causing death on 3 March 2018.  The applicant has been on bail at all relevant times.

2 For that charge, the applicant now makes application for a trial by judge alone pursuant to s.420D of the Criminal Procedure Act 2009 (‘the CPA’). The application is not opposed by the prosecution. Each party have relied on their filed written submissions and supplementary oral submissions.[1]

Procedural history and delay

[1]        The Web-ex hearing of the application took place on 4 September 2020.

3       This charge arises out of events that occurred in the early hours of 3 March 2018 when the vehicle the applicant was driving struck and killed a pedestrian who was walking along a service road while wearing a ‘high-vis’ vest.

4       The applicant was discharged at the committal hearing on 5 July 2019.  The only witnesses to be have cross-examined at that hearing were Dr O’Dell and the collision reconstructionist.

5       In due course, the applicant was directly indicted for trial on a single charge of dangerous driving causing death.  The trial was listed for hearing on 19 October 2019.  As a result of the COVID-19 pandemic, however, the case cannot proceed as a jury trial on that date.  There will be a likely delay of at least another 12 months, and possibly more, before the trial can be re-listed for hearing as a jury trial.  Indeed, there is a realistic possibility that a jury trial may not occur until 2022.

Prosecution case at trial

6       The prosecution case against the applicant is outlined in the summary of prosecution opening.[2]  The following precis will suffice for current purposes.

[2]        Dated 20 July 2020.

7       At approximately 2.30 am on 3 March 2018, the applicant decided to drive from her home to visit a friend in Maribyrnong.  After driving for 90 metres or so in a westerly direction towards the intersection of Garryowen Terrace and Mickleham Road, she turned left into the service lane that runs south along the eastern side of Mickleham Road.

8       After driving for approximately 70 metres along that service lane, the applicant collided with the victim, Mr Paea, who was walking south on the right hand or western side of the service lane.  He died almost instantly from the injuries he sustained.  After the impact with Mr Paea, the applicant swerved to the right and then collided with a nearby bus stop.

9       The applicant is alleged to have told one of the civilians who attended the scene shortly afterwards, that ‘he’, meaning the victim, had ‘jumped out of the bus stop’.  She is also alleged to have told police that the victim had stepped out from the bus stop and that she had tried to swerve and hit the bus stop.

10      A subsequent mechanical inspection of the vehicle detected no faults or failures that would have caused or contributed to the collision.

11      After examining the scene, the collision reconstructionist concluded that the applicant’s vehicle was travelling at approximately 48 km/h at the time of impact.  At the relevant time, the road was dry and lit by streetlights.  The applicable speed limit in that area was 50 km/h.

12      When the applicant’s vehicle was searched by police, they located an ‘ice pipe’ inside a pencil case.  The blood sample taken from the applicant was later analysed and found to contain the drugs methylamphetamine and amphetamine and the antidepressant citalopram.

13      When the interviewing police officers advised the applicant of the results of the analysis of her blood sample, the applicant admitted to having used ‘meth’ and ‘speed’ in the past but not ‘ice’ prior to the driving.  She couldn’t recall when she had last used, saying the last few days were ‘a blur’.  Later, she said that the methylamphetamine and amphetamine would have been in her blood from the last time that she had used, which she estimated to have been a day or two previously.  As for the presence of citalopram in her blood, the applicant said that she wasn’t taking it (her anti-depressant) at the time.

14      The applicant’s account of the collision provided in the interview was essentially as follows.  As she turned slowly into the service lane, she noticed  it was very dark rather than lit up as it usually would be, and that there was a shop that was not open.  Then, all she remembered was seeing ‘high-vis’ and thinking ‘just move’.  It was ‘only about three seconds later…not even, like it was just so quick, like out of nowhere, like I just couldn’t stop fast enough’.

15      Dr O’Dell reached the following conclusions.  The applicant was driving after having consumed methylamphetamine with or without amphetamine.  It was not possible to determine the dose or time of use of the drug from the blood analysis but the blood level of methylamphetamine was relatively high which suggests that it was either used recently or a very large amount had been used in the past day or two.  The level of citalopram found in the applicant’s blood is higher than one would expect in someone using the drug as prescribed.  Citalopram and methylamphetamine and amphetamine can interact to accentuate the effects of the stimulant drugs.  The effects of methylamphetamine are likely to have been increased by taking it together with an SRI antidepressant such as citalopram.  And, methylamphetamine, is a drug capable of rendering a person incapable of having proper control of a motor vehicle at the blood concentration found in the applicant.

16      In the final paragraph of the summary of prosecution opening, the case against the applicant is put as follows:

The prosecution case is that the accused was driving dangerously because she was not keeping a proper lookout for other road users.  She collided with the deceased who was walking directly in front of her vehicle while wearing high visibility clothing while the roadway was dry and the streetlights were on.  She was not paying proper attention to her driving and at the time of the collision or shortly before it she was looking at the shops.[3]

[3]        At [37] of the opening.

17      In addition to the opening, the prosecution has also filed a notice of incriminating conduct relating to the various statements allegedly made by the applicant shortly after the collision to the effect that the victim had ‘jumped’ or ‘stepped’ out in front of her from the bus stop.  As the prosecution put it, that was a deliberately false account of where and how the collision occurred given by the applicant because of her belief that if she gave a truthful account, she would implicate herself in the commission of this offence.

Defence response and issues in dispute

18      As the defence response of 10 August 2020 makes clear, there is no issue that the applicant was driving her vehicle at the time that it collided with the victim.  However, the applicant denies the allegation that she was not keeping a proper lookout or was in any way inattentive.  In essence, the defence submit that the prosecution cannot establish, beyond reasonable doubt, that the applicant’s driving was relevantly ‘dangerous’ or that any such driving was a substantial and operative cause of the victim’s death.  In that context, the circumstances relating to the victim’s location, movement and BAC[4] will be relevant considerations along with any factual findings in relation to how the applicant was driving at the relevant time.  In short, the defence argue that the prosecution case amounts to no more than a tragic accident.

Legislative framework and relevant legal principles

[4]        The toxicology report indicated a blood alcohol level of 0.08%.

19      The relevant legislative framework and legal principles regarding this type of application have already been considered and outlined in a number of recent decisions in this state, most comprehensively by Chief Judge Kidd in DPP v Combo.[5]  I refer to and gratefully adopt his analysis without repeating it now.

[5]        DPP v Combo [2020] VCC 726.

20 Section 420D of the CPA is the operative provision and relevantly states:

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 readily discerned from the section, four pre-conditions must be established before the Court’s discretion to make an order is enlivened.

22 There is no presumption in favour of jury trials nor any onus on either party to rebut such a presumption. The default position is 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 DPP v Combo (‘Combo’) at [47] and footnote 16, this construction is      also consistent with authority in other Australian jurisdictions.

23      The concept of the ‘interests of justice’ is a broad one 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.

Requirements of s.420D(1)(a)-(c) established

24 The first three requirements in s.420D(1) have clearly been established in this case. The single offence alleged, dangerous driving causing death, is laid pursuant to s. 319(1) of the Crimes Act 1958 and so is clearly an offence under the law of Victoria. The requirement in s.420D(1)(a) is therefore satisfied. The written application and supporting submissions filed by the applicant’s legal representatives make it clear that the respective requirements in s.420D(1)(b) and (c) are also established. The applicant consents to the making of an order granting trial by judge alone having previously 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)

25      Counsel who appeared on behalf of the applicant, Mr Richter, sought to rely on the following four matters, in combination, to persuade this court that it is in the interests of justice to make an order for trial by judge alone:

(i)      The applicant consents to an order for a trial by judge alone;

(ii)     The significant delay;

(iii)     The narrow issue in dispute and the greater efficiencies of a judge alone trial; and

(iv)     The emotive subject matter involved.

26      I think it fair to say that in the end, the applicant’s counsel placed particular weight on the matter of delay and much less weight on the matters referred to in points (iii) and (iv) above.

Prosecution’s stance and submissions regarding s.420D(1)(d)

27      In his written and oral submissions, Mr Hutton, counsel who appeared with Ms Dawson on behalf of the Director, indicated that the prosecution did not oppose the making of an order for a trial by judge alone.  The prosecution further submitted that it would be well open, in the circumstances of this case, for the court to find that it was in the interests of justice to order that there be a trial by judge alone.  In that context, the prosecution agreed with the applicant’s counsel that delay was a very important consideration in the mix.

28      Prosecuting counsel did, however, indicate that the charge of dangerous driving was one of those types of charges that required the ultimate fact finder to apply objective community standards, since as part of any consideration of whether the prosecution had proven their case, the fact finder would need to consider whether the driving was relevantly ‘dangerous’.  Counsel did, however, acknowledge the point raised by Mr Richter in this context, namely that it will likely be a question that will turn on the facts in the sense that if the prosecution proved that the applicant was as inattentive as they suggest, then there would be very little if any argument from the defence as to whether that would amount to dangerous driving.  So, while the prosecution point to the fact that a requirement for the application of objective community standards is one that ordinarily points in favour of a jury trial, they concede that it is not as strong a consideration in this case as it might be in some other cases.

Analysis

29 I am satisfied that the essential pre-conditions set out in s.420D(1)(a)-(c) of the CPA have been made out.

30 I am also satisfied that the remaining pre-condition contained in s.420D(1)(d) is established. In my view, it is in the interests of justice that an order be made under s.420D of the CPA, that the applicant be tried by judge alone.

31      I have reached that conclusion primarily based on the two important and related considerations of delay and the need to continue with the administration of justice in the current COVID-19 environment.

32      Both of these factors were influential in Chief Judge Kidd’s decision in Combo[7] and in my decision in Ritchie (a pseudonym).[8]  Although the circumstances of this case are somewhat different to each of those cases, the fact that this case is one that involves a death provides an important context to the lesser but still significant delay faced by the applicant and, for that matter, the family of the deceased, Mr Paea.  In saying that, I have not lost sight of the fact that their view, as expressed to the prosecution, is that they want a jury trial.

[7] [2020] VCC 726, at [69]-[71].

[8] [2020] VCC 1111, at [77] and [110].

33      As has been noted in a number of the previous cases, 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.

34 In my view, delay is a powerful factor in this case and points strongly in favour of a trial by judge alone. The COVID-19 pandemic provides a very significant context to what the court must consider given that it resulted in all jury trials being suspended indefinitely. So, it is not a matter of comparing the respective advantages of the two modes of trial on the basis that there is a fixed and common trial date in either scenario, but rather, a comparison between the advantages of a trial by judge alone commencing in the very near future, and certainly by Friday 23 October 2020,[9] to a significantly delayed jury trial that may not commence until late 2020 or even early to mid-2022. A delay of that magnitude is significant, particularly when it is in no way attributable to the applicant and is likely to weigh heavily on her (and I expect on the family of the deceased) in the event that this application is refused.

[9]        This is, for all practical purposes, the date by which any trial by judge alone must commence under        the current emergency legislation.

35      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.

36      As to the point about the narrowness of the issue in this trial and the related point regarding the greater efficiencies that could be achieved in a judge alone trial, I would simply make these observations.

37      In my view, the issues are not as narrow as the applicant’s counsel suggested.  There are in fact two issues, dangerousness and causation, underpinning which are certain factual disputes relating to the driving and matters of interpretation regarding the toxicological evidence and the alleged post offence incriminating conduct of the applicant.

38      The short submissions regarding the professed greater efficiencies in a judge alone trial were, to a degree speculative and also premature, since counsel for the parties are yet to fully discuss a number of relevant matters relating to how the evidence can and should be led.  Whether, and if so to what extent, this mode of trial would be more efficient than a jury trial cannot be estimated with any certainty or accuracy at this point in time.  In any event, this trial in whatever mode it is conducted is likely to be a relatively short one.  As I noted in my ruling in Verduci,[10] by reference to relevant interstate authority, mere efficiency without more is not a factor that has generally been treated as pointing in favour of a judge alone trial.

[10] [2020] VCC 1166, [44], [67]-[79] and cases there cited.

39      The argument put forward by the applicant’s counsel in relation to the emotive nature of the trial, has two aspects to it.  First, there is a death involved.  And, second, there will be evidence in relation to the applicant having used illicit and prescription drugs at some stage before driving.  In a jury’s mind, the first of those matters is likely to engender sympathy for the victim and his family while the second is likely to evoke prejudice towards the applicant.

40      However, it is important to note that Mr Richter very properly and fairly did not seek to suggest that either situation could not be cured or at least sufficiently ameliorated by appropriate judicial directions to the jury.  In other words, he did not submit that a fair trial was at stake depending on which mode of trial was adopted.  He simply made the point that it would be preferable to not have to face that sympathy and prejudice at all as would be the case in a judge alone trial presided over by a judicial officer who, by dent of training and experience, could readily put such feelings to one side.

41      In my view, this is not a consideration that should influence me one way or the other in determining this application.  It is a neutral consideration in circumstances such as here where the applicant can be assured of receiving a fair trial whichever mode of trial is adopted.

42      In relation to the additional factor raised by the prosecution, I wish to make the following observations.  Where a fact in issue involves the application of community standards, this tends in favour of a jury trial.[11]  The reason for that is that any assessment of objective community standards is best undertaken by a group of members of the community.[12]  In this case, there is a need to apply objective community standards because the fact finder will need to determine whether, on the facts established by the prosecution, the applicant’s driving at the time in question was relevantly ‘dangerous’.  This is a factor that militates in favour of a jury trial.  The fact that it may not be especially contentious a point if the prosecution proves the underlying facts relating to the driving, does not deny that point.  At most, it goes to the weight to be given to it.

[11]        R v Qaumi (No 14) (2016) A Crim R 575, 584 [32].

[12]        R v Stanley [2013] NSWCCA 124, [43]; R v Homann [2018] NSWSC 198, [36]-[37].

43      In conclusion, I note that there is nothing to suggest that this trial cannot be conducted practically and fairly as a judge alone trial in the very near future.  The prosecution has certainly not suggested otherwise.  There is a very limited number of witnesses and some prospect that the evidence of at least some, if not many of those prosecution witnesses, can be introduced by agreement or at least by way of some leading from the trial prosecutor.

44 Having carefully considered, weighed and balanced all of the relevant considerations in this application, I have 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 due to the significant delay involved and the need to continue with the business of the court, it is appropriate in my mind to grant the application and make the order sought under s.420D of the CPA.

Orders

45      Accordingly, I make the following orders.

46 Pursuant to s.420D(1) of the CPA, I order that the charge of dangerous driving causing death alleged in Indictment J12662297, be heard and determined by a judge alone, without a jury.

47      The trial will now be listed for a mention before the judge who is allocated to this trial, at 9.30am on Wednesday 7 October 2020, or any alternative date and/or time that that judge considers appropriate after consultation with the parties.  Whether the applicant will need to appear at that mention hearing and whether it will be conducted remotely or otherwise will be a matter for the trial judge.

48      At that mention hearing, counsel should be prepared to identify with precision what the nature and scope of any outstanding pre-trial issues are, and expect a timetable to be discussed and possibly fixed for the hearing of those issues and the trial proper.

49      Of course, whether the trial proper will commence on the original listing date of 19 October 2020, will be a matter for trial counsel to discuss with the trial judge.  At present, the applicant’s bail will remain extended until that date on the same terms and conditions.