Director of Public Prosecutions v Jacobs (a pseudonym); (Application for trial by judge alone) (No. 2)
[2020] VCC 1262
•19 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLEN JACOBS (a pseudonym)[1] |
[1] 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 applicant.
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 14 August 2020 | |
DATE OF RULING: | 19 August 2020 | |
CASE MAY BE CITED AS: | DPP v Jacobs (a pseudonym) (Application for trial by judge alone) (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1262 | |
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 – Re-trial – Previous interlocutory appeal and appeal against conviction – Application of objective community standards – Credibility of complainant in issue at trial – Forensic disadvantage for defence avoided if trial by judge alone.
Legislation Cited: Crimes Act 1958 as amended by the Crimes Amendment (Rape) Act 2007, s.38(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 Jacobs [2020] VCC 1251; R v McNeil [2015] NSWSC 357; Thrussell v The Queen [2017] VSCA 386; R v Simmons (No 4) (2015) 249 A Crim R 120; R v Qaumi (No 14) (2016) 265 A Crim R 575.
Ruling: Application for trial by judge alone granted.
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr. D Dann Q.C with Ms. G Connelly | Emma Turnbull |
| For the Respondent | Ms. R Harper with Ms. S Clancy | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1 The accused, Glen Jacobs[2] (the applicant’), is charged on Indictment F11854231.2F with having committed an offence of rape on 21 May 2015 when he was 27 and the female complainant was 30.
[2] A pseudonym.
2 For that indictable 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 written application and supporting submissions were filed on 13 July 2020. The application is not opposed by the prosecution whose written submissions in reply were filed on 20 July. At the hearing of this application, counsel for each of the parties made brief supplementary oral submissions.[3]
Procedural history and delay
[3] The Web-ex hearing took place on 7 and 14 August 2020.
3 In the broadest sense, this case has a lengthy and complex history which I outlined yesterday in a ruling in which I granted the applicant a trial by judge alone on a separate charge of rape that was alleged in Indictment F11854231.3A.[4] I refer to and adopt in full what I said in that ruling. It is sufficient for present purposes to simply note the following.
[4] [2020] VCC 1251.
4 Originally, the applicant faced a single trial involving multiple allegations of rape made by six complainants. But, after a successful interlocutory appeal, only four of the six trials proceeded.[5] They were heard consecutively between 14 November 2017 and 14 March 2018. This trial was heard as the third trial in the series. On 21 February 2018, the jury returned a majority guilty verdict.
[5] Two other trials were discontinued.
5 After all four trials were completed, the applicant was in the following position: at the first trial he was acquitted on charge 1 and convicted on charge 2; at the second trial he was acquitted on charge 1 and convicted on charges 2 and 3; at the third trial he was convicted on the single charge he faced; and at the fourth trial he was acquitted on all charges.
6 The applicant was sentenced in respect of all of those convictions on 25 May 2018, receiving a total effective sentence of 12 years and 4 months’ imprisonment with a non-parole period of 7 years and 6 months.
7 On 6 December 2019, the applicant successfully appealed his convictions from all three trials.[6] The Court of Appeal allowed the appeal, quashed all of the convictions and remitted the applicant to this Court for a re-trial in respect of each proceeding.[7]
[6] Jacobs (a pseudonym) v DPP [2019] VSCA 285.
[7] For the first two trials, on the basis that the prosecution had been permitted to lead inadmissible expert evidence of a psychiatrist and for the third trial, on the basis of the prosecution had been permitted to lead other evidence relevant to the applicant’s credibility which was likely to have been given undue weight by the jury. In each trial, the admission of the impugned evidence was found to have resulted in a substantial miscarriage of justice.
8 The applicant’s three re-trials were due to proceed in a series, commencing on 29 June 2020. However, as a result of the COVID-19 pandemic, all jury trials listed to commence on or after 16 March 2020, were suspended indefinitely. Therefore, on 15 June, the trial date of 29 June was vacated and replaced with an administrative holding date of 15 February 2021.
9 The anticipated delay before vacated trials could proceed with a jury was estimated to be at least 9 months or more.[8] When the Government announced that the metropolitan Melbourne region was going back into a Stage 3 restrictions lock-down from 8 July,[9] this Court postponed the limited resumption of jury trials which had been due to commence on 20 July 2020.[10] Since that time, no new resumption date has yet been announced and the pandemic has worsened to the point where, in early August, the Government announced a state of disaster and placed the metropolitan Melbourne region on Stage 4 restrictions and regional Victoria on Stage 3.[11]
[8] For example, under the relevant Court protocol, trials originally listed in Terms 1 and 2 of 2020 will be re-listed in Term 1 and the beginning of Term 2, of 2021 (See County Court’s COVID-19 Emergency Protocol Re-Listing of Melbourne Criminal Trials).
[9] Commencing at 11.59pm on Wednesday 8 July 2020.
[10] The planned resumption related to some of the trials listed to proceed in Term 4 of 2020.
[11] The announcement was made on 2 August 2020 and involved a six-week period with the Stage 4 restrictions commencing immediately and Stage 3 to be effective from 5 August 2020.
10 Against that background, it has to be said that the period of delay from the listing date of 29 June 2020 until this matter could proceed as a jury trial is far from certain, particularly given the unpredictable nature of the COVID-19 pandemic. On the very best-case scenario, the delay would be at least 9 months, but it may well be longer. How much longer cannot be known this far in advance and is somewhat speculative. Whilst this case will likely attract some priority for re-listing purposes, the applicant is presently on bail for all of the charges for which he is to be re-tried and his vacated trial date is very late in the Term 1 and 2 group of vacated trials referred to in the relevant Court re-listing protocol.[12] In those circumstances, the applicant could not be guaranteed a re-listing before Term 2 of 2021.
[12] The applicant is, however, now being held on remand for a subsequent and unrelated charge of rape.
11 The difference in the delay if one compares the two modes of trial may be slightly less but still quite significant given the very substantial delay that has already occurred since the applicant was arrested, charged and remanded by police on 22 May 2015. If this application is granted, a trial by judge alone could likely commence sometime in August 2020 or early September, whereas a trial by jury would be unlikely to proceed until Term 2 of 2021, at the very earliest. So, the difference in delay will be at least 8 months and quite possibly more, depending on the future course of the pandemic and the prioritisation that this trial could be given in the group of trials that are currently awaiting a re-listing date in Term 1 or early Term 2 of 2021.
Pre-sentence detention and immigration detention
12 The applicant has spent a considerable period in detention of one kind or another since he was charged and remanded by police on 22 May 2015. By the time he was sentenced on 25 May 2018, he had served 314 days by way of pre-sentence detention and 784 days of immigration detention.[13] By the time he was granted bail and released from custody on 13 December 2019, he had served an additional 560 days of pre-sentence detention. The prosecution made a number of unsuccessful attempts to revoke his bail in the period between 17 March and 4 April this year. Ultimately, on 18 May 2020, the applicant was remanded in custody on an unrelated subsequent charge, although his bail on the current and related charges of rape has continued.
Prosecution case at trial
[13] Which were respectively ‘declared’ and ‘taken into account’ by the sentencing judge.
13 The prosecution case against the applicant is outlined in the summary of prosecution opening.[14] The following precis of the complainant’s allegations will suffice for current purposes.
[14] Dated 16 March 2020.
14 When the applicant first contacted the complainant via a dating website on 16 April 2015, he was living in Melbourne and she was living in Hong Kong but planning to move to Melbourne. After exchanging mobile numbers, they started to speak on ‘WhatsApp’ and she agreed to move into his apartment until she was able to arrange her own accommodation.
15 On 20 May 2015, the complainant arrived in Melbourne. After meeting the applicant, the two returned to his apartment where they had consensual sex before meeting some of her friends for dinner.
16 As had been earlier agreed, the complainant slept the night in the applicant’s bed while he slept on the floor.
17 On the following day, at or shortly before mid-day, the applicant got into the bed and tried to touch the complainant. As he was attempting that, she said ‘No’ and told him that she did not want to have sex because she liked someone else. Undeterred, the applicant tried to remove her pants while she was trying to hold them up and saying ‘no, I don’t want to.’ He then forcefully removed her pants. She continued to protest, telling him that she did not want to have sex with him or the man she liked as she wanted to get to know that man better, without sex.
18 Again undeterred, the applicant stripped himself naked and attempted to penetrate the complainant’s vagina as she resisted and said ‘no, no, no.’ She bit her own lip and eventually gave up struggling. The applicant then penetrated her vagina with his penis and proceeded to have sex for at least 10 minutes. It is this act of penetration upon which the prosecution relies for the charge of rape alleged in this indictment.
19 As it happened, the police who were investigating other allegations of rape against the applicant, coincidentally attended his apartment that evening. It was then that the complainant disclosed the alleged offending which had occurred earlier that day.
20 The police arranged for her to participate in a forensic medical examination on the same day. It revealed bruising to her bottom lip, right thigh and knee, parallel scratches to the right collar bone and bruises to the left knee and shin.
21 The applicant was arrested at his address and then formally interviewed about this matter back at the police station. In that interview, he told police that the complainant had been staying with him for two days and that they had consensual sex on the first day. He then added ‘if she ever said that she doesn’t like to have sex, I would have stopped having sex with her’.
Defence response and issues in dispute
22 As the defence response of 28 July 2020 makes clear, there is no issue that the applicant penetrated the complainant’s vagina with his penis on the date of the alleged offence. What is in issue, is consent and the applicant’s state of mind about consent. So, the issue in this trial is, as it has always been, whether the prosecution can prove that the complainant did not consent, and that the accused was aware that the complainant was not consenting or might not be consenting. The defence position is that the applicant believed the complainant was consenting.
Legislative framework and relevant legal principles
23 Yesterday, I summarised the relevant legislative framework and legal principles regarding this type of application when determining the applicant’s application for a trial by judge alone in respect of the first of his three re-trials.[15] I refer to and adopt that analysis without repeating it now.
[15] DPP v Jacobs (a pseudonym) [2020] VCC 1251, [24]-[38].
24 Section 420D of the CPA is the operative provision and 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.
25 As is clear from the terms of that section, there are four pre-conditions which must be met before the Court’s discretion to make an order is enlivened.
26 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).[16] 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.
[16] 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.
27 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
28 The first three requirements in s.420D(1) have clearly been established in this case. The single rape charge alleges an offence under the law of Victoria and so, the requirement in s.420D(1)(a) is 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 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)
29 Senior counsel who appeared on behalf of the applicant, ultimately 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 need for the administration of justice to continue; and
(iv) The applicant will suffer a forensic disadvantage if the trial proceeds with a jury rather than with a judge alone.
30 The applicant’s counsel submitted that the fact that the applicant has consented to an order granting a judge alone trial, should be given appropriate weight.
31 In support of his submission that delay was a significant factor, counsel referred to the key aspects of the procedural history of this case. The applicant has now been subject to this serious charge for a period in excess of five years. During that time, he has experienced a fluctuating and uncertain future, through no fault of his own. He has also had to experience the onerous nature of imprisonment for a significant part of that period.
32 Relying on what was said in DPP v Combo (‘Combo’),[17] counsel submitted that 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.
[17] At [62].
33 The final matter relied on is a very fact specific consideration. This rape is alleged to have occurred at the applicant’s address sometime between 11am and mid-day on 21 May 2015. Prior to the police fortuitously attending the address that evening, the complainant had not made a complaint to anyone about the alleged rape.
34 Based on that chronology, the applicant’s counsel submits that there is a factual foundation for a forensic disadvantage argument to the following effect. When the applicant was previously tried for this charge of rape, he was forensically hamstrung from seeking to undermine the circumstances in which the complainant made her complaint to the police who attended at the applicant’s address. For example, whether they had told her that the applicant was a suspect for other rapes and about the circumstances of any of those other allegations before she detailed her own allegations about the applicant. No competent defence counsel would have raised that issue in front of the jury at the last trial because it would have alerted them to the extremely prejudicial fact that the applicant was suspected of having raped other women, a fact that was incapable of being cured or sufficiently ameliorated by any judicial direction.
35 By contrast, if this application is granted, that line of enquiry can be explored without prejudice to the applicant. Judges are, by their very training and experience, able to put inadmissible and prejudicial aspects of evidence to one side and focus solely on the relevant and admissible parts of that same evidence. Thus, with a trial by judge alone, the applicant would not suffer from the forensic disadvantage that he would if he were again tried by a jury.
Prosecution’s stance and submissions regarding s.420D(1)(d)
36 Counsel who appeared for the prosecution did not oppose the making of an order for a trial by judge alone.
37 The learned prosecutor very fairly conceded that the four factors relied on by the applicant properly arose for the court’s consideration, and that those of delay and the need to continue with the administration of justice were powerful considerations pointing in favour of a trial by judge alone.
38 Counsel did, however, point to two other factors which she submitted had to be considered in the mix as part of the balancing exercise which this court had to undertake. It was submitted that each of those considerations pointed in favour of a trial by jury.
39 The first factor was that this trial would require the ultimate fact finder to assess the credibility of the complainant, a key prosecution witness whose credibility was clearly in issue. In support of her argument, counsel referred to what Johnson J said in R v McNeil (McNeil)[18] and to what the Victorian Court of Appeal said in Thrussell (a pseudonym) v The Queen (‘Thrussell’).[19] However, counsel acknowledged that she was unable to relevantly distinguish the situation of this complainant from that of the complainant in DPP v Ritchie (a pseudonym) (‘Ritchie (a pseudonym)’).
[18] [2015] NSWSC 357, at [102]-[104].
[19] [2017] VSCA 386, at [91]-[92].
40 The second consideration relied on was that the charge of rape required the ultimate fact finder to apply objective community standards, since as part of the consideration of whether the applicant may have held a belief that the complainant was consenting or might have been consenting, they were entitled to consider the ‘reasonableness’ of that belief. Counsel agreed with the applicant’s counsel that this issue arose at a secondary level rather than from the terms of the element itself.
Reply by applicant’s counsel
41 By way of reply to the prosecution’s submissions, counsel for the applicant made the following submissions.
42 The need to apply objective community standards for the offence of rape was a secondary consideration rather than one explicitly raised by the elements of the offence. It was only as a result of having to consider whether the applicant may have held a belief that the complainant was consenting or might have been consenting, that the fact finder is entitled to consider the ‘reasonableness’ of that belief.
43 The fact that the complainant’s credibility is in issue does not point in favour of a jury trial but rather, should be treated as a neutral factor. In that regard, reliance was placed on Hammill J’s decision in Qaumi (No 14) and my own decision in Ritchie (a pseudonym).
Analysis
44 The application for a trial by judge alone in this case raises an almost identical set of circumstances and arguments to those raised in the application made in respect of the first trial.[20] There will therefore be a good deal of repetition in what I am about to say, but that is necessary and unavoidable.
[20] [2020] VCC 1251, at [55]-[68].
45 I am well satisfied that the essential pre-conditions set out in s.420D(1)(a)-(c) of the CPA have been made out.
46 I am also satisfied that the remaining pre-condition contained in s.420D(1)(d) is established as I am strongly of the view that 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.
47 In my view, there are a combination of factors which favour the making of such an order, of which the two most important are the need to continue with the administration of justice in the current COVID-19 environment and delay.
48 Both of these factors were influential in Chief Judge Kidd’s decision in Combo[21] and in my decision in Ritchie (a pseudonym).[22] In that context, I note that the applicant’s case has some strong similarities to the case in Ritchie (a pseudonym) and warrants similar treatment.
[21] [2020] VCC 726, at [69]-[71].
[22] [2020] VCC 1111, at [77] and [110].
49 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.
50 Delay is a powerful factor in this case and points strongly in favour of a trial by judge alone.
51 There is a marked difference, all other things being equal, between an accused having to wait at least 8 months and possibly longer for their trial to be first tried by a jury and having to wait the same period for their second jury trial to commence more than six years after being charged by police. A delay of that magnitude is significant and quite out of the ordinary, especially as it is not attributable to the applicant. I accept that the delay has weighed heavily on the applicant and would continue to do so if this application is refused.
52 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.
53 I consider that the forensic disadvantage point is a relevant consideration and one that militates in favour of ordering a trial by judge alone. That said, it seems to me that it ought to attract somewhat less weight in the circumstances of this trial as compared to the circumstances which prevailed in the trial the subject of my ruling yesterday.[23] In this trial, there would appear to have been little time and/or opportunity for a complaint to have been made between when the rape is alleged to have occurred and when the police attended at the applicant’s address. Contrastingly, the interval between the alleged rape and the police contacting the complainant in the other trial was in the vicinity of a week or so and the formal complaint to police was not made until two days after they had contacted her.
[23] [2020] VCC 1251, at [44]-[46] and [63].
54 In this application, as with the previous one, it is difficult to assess with precision what weight to give to this factor as the relevant cross-examination of the complainant and police witnesses is yet to occur. It may turn out to have been a significant forensic disadvantage at the last trial or a very minor one or anything in between. What remains relevant, however, is the fact that a trial by judge alone will afford the defence an opportunity to fully test the value of the complaint evidence whereas a trial by jury will not.
55 In relation to the two additional factors raised by the prosecution, I wish to make the following observations.
56 First, I do not accept the submission that juries are necessarily superior to judges when it comes to assessing the credibility of a witness. I remain of the same view that I expressed in Ritchie (a pseudonym). I agree with Hammill J’s approach that, for the most part, it is a neutral factor. I can see no good reason for making an exception to that general rule in this case. I do not consider the Court of Appeal’s decision in Thrussell (a pseudonym) to be a binding authority on this issue as it involved a different question and context than the one faced by this court.
57 As for the point relating to the application of objective community standards, I accept that the need to consider the ‘reasonableness’ of any belief does involve such an exercise and that therefore it is a factor which points in favour of a trial by jury. Whilst I do not intend to express a concluded view, as it is not determinative of the ultimate question that I have to decide, the fact that this issue arises at a secondary level may well be relevant to the question of what weight should be attached to this factor.
58 In conclusion, I note that there is nothing to suggest that this re-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 there is every prospect that the evidence of the complainant can, if not totally, then in very large part, be placed before the court by replaying the evidence that she gave at the last trial.
59 Having carefully considered and weighed all of the relevant considerations in this application, I have no doubt 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, because of the significant delay involved in this case and the need to continue with the business of the court, it is appropriate to grant the application and to make the order sought under s.420D of the CPA.
Orders
60 Accordingly, I make the following orders.
61 Pursuant to s.420D(1) of the CPA, I order that the charge of rape in Indictment F11854231.3A, be heard and determined by a judge alone, without a jury.
62 The trial will remain listed for mention at 10.00am on Monday 24 August 2020 and now be heard by the judge who is ultimately allocated to this trial. The applicant’s bail on this charge will continue on the same terms until then. Subject to any contrary view of the ultimate trial judge, the mention will proceed as a Web-ex hearing and the applicant can appear by way of a video link from prison, assuming he remains in custody for the unrelated charge for which he was originally remanded in custody on 18 May this year.
63 At the mention, counsel should be prepared to identify which of the two trials for which the applicant has now been granted a trial by judge alone, will proceed first. In respect of the current trial, counsel will also likely need to identify the nature and scope of any outstanding pre-trial issues and expect a timetable to be fixed for the hearing of those issues and the trial proper.
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