Director of Public Prosecutions v Jacobs (a pseudonym) (No 3)
[2020] VCC 1575
•6 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-02517
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLEN JACOBS (a pseudonym) (No 3)[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, 14 and 28 August 2020 | |
DATE OF RULING: | 6 October 2020 | |
CASE MAY BE CITED AS: | DPP v Jacobs (a pseudonym) (No 3) (Application for trial by judge alone) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1575 | |
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, hung jury 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 (a pseudonym) (No 1) [2020] VCC 1251; DPP v Jacobs (a pseudonym) (No 2) [2020] VCC 1262; 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 F11854231.3B with having committed two offences of rape during a single incident on 6 May 2015 when he was 27 and the female complainant was 36.
[2] A pseudonym.
2 In respect of those two indictable charges, the applicant has applied for a trial by judge alone pursuant to s.420D of the Criminal Procedure Act 2009 (‘the CPA’). His 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, 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, 14 and 28 August 2020.
3 The lengthy and complex history of this case has already been fully canvassed in my ruling on the first of two earlier applications for trial by judge alone made by the applicant.[4] I adopt what I said then in that regard . The following briefer overview will suffice for present purposes.
[4] The first ruling is DPP v Jacobs (a pseudonym) (No 1) [2020] VCC 1251 (Indictment F11854231.3A). The second ruling is DPP v Jacobs (a pseudonym) (No 2) [2020] VCC 1262 (Indictment F11854231.2F).
4 The applicant initially faced a single trial involving multiple allegations of rape made by six complainants. Following a successful interlocutory appeal, a separate trial for each complainant was ordered. Only four of those trials actually proceeded.[5] They were heard consecutively between 14 November 2017 and 14 March 2018. This trial was the second trial in the series. The first jury was discharged after failing to reach a verdict, while the second jury acquitted the applicant of charge 1 and convicted him of charges 2 and 3 (now charges 1 and 2 on the current indictment).
[5] Two of the trials were discontinued.
5 In the four trials, the following verdicts were returned: at the first trial, acquittal on charge 1 and conviction on charge 2; at the second trial, acquittal on charge 1 and conviction on charges 2 and 3; at the third trial, conviction on the single charge faced; and at the fourth trial, acquittal on all charges.
6 On 25 May 2018, the applicant was sentenced to a total effective sentence of 12 years and 4 months’ imprisonment with a non-parole period of 7 years and 6 months for the offences of which he had been convicted.
7 The applicant appealed his convictions from all three trials.[6] On 6 December 2019, the Court of Appeal allowed the appeal, quashed all convictions and remitted the applicant to this Court for 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 as 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. 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 originally 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 scheduled 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.[11] Since then, the Government has announced a four-stage ‘roadmap’ out of the COVID-19 restrictions which is linked to key performance criteria. It must be noted that the road to date has seemed rocky and long. Just how that will pan out in the end is uncertain but important as it will strongly influence when, how and to what extent jury trials will be able to resume, whether this year or next.
[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 still quite uncertain given the unpredictable nature of the COVID-19 pandemic. Whilst it is not very helpful to descend into speculation at this point, I think it fair to say that on the very best-case scenario, the delay will be at least 9 months but quite possibly longer.
11 Of course, that additional period of delay is superimposed over what was already a substantial delay between when the applicant was originally arrested, charged and remanded by police on 22 May 2015 and his recently vacated re-trial date of 29 June 2020.
12 If this application is granted, any trial by judge alone needs to commence before the sunset date of the current emergency legislation which, for all practical purposes, would mean by Friday 23 October 2020.[12] Alternatively, in the event that the sunset date is extended by a further 6 months when parliament sits again on 13 October, a trial by judge alone could commence some weeks or even months later, particularly if it is heard as the last in the series of three trial by judge alone that need to be conducted.
[12] The sunset date in the relevant Act is 25 October 2020.
13 That contrasts favourably with any trial by jury which, as I have already explained, would be unlikely to proceed before Term 2 of 2021, at the very earliest.
Pre-sentence detention and immigration detention
14 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. When originally sentenced on 25 May 2018, he had served 314 days of pre-sentence detention and 784 days of immigration detention.[13] When 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 between 17 March and 4 April this year. Ultimately, on 18 May 2020, the applicant was remanded in custody on a new and unrelated 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.
15 The prosecution case against the applicant is outlined in the summary of prosecution opening.[14] A brief summary of the complainant’s allegations will suffice for current purposes.
[14] Dated 16 March 2020.
16 The complainant was born in Columbia and travelled to Australia on a working student visa in late August 2014. After the applicant contacted her on a dating website in early April 2015, they exchanged mobile numbers and commenced to communicate via WhatsApp.
17 On 6 May 2015, the applicant told the complainant that he could help her to find work if they met in person. After meeting on a tram, they returned to his apartment so he could look at her resume online. Once there, he continually asked her if she liked him and if she wanted to be his girlfriend. When he put his arms around her and asked her to kiss him, she said ‘no, we need to be friends first’. He then asked her if she wanted to sleep over at his place if he slept on the sofa, but she kept saying ‘No’.
18 The complainant was in the corner of the room between the bed and the far wall. The applicant was using a translator function on his mobile phone to aid communication with her. She repeatedly told him that it was late and that she wanted to leave. He put his arms around her and removed her jumper and shirt and then her jeans, leggings and underwear. After that, he penetrated her vagina with his fingers. This digital penetration is the subject of charge 1 on the indictment. The complainant begged him to put a condom on. After doing so, the applicant penetrated her vagina with his penis. This second penetration is the subject of charge 2 on the indictment.
19 Once the applicant had finished, the complainant got dressed and left the apartment. He began to call her mobile phone almost immediately. When she didn’t answer, he texted her, saying he had her wallet. Reluctantly, she returned to retrieve it.
20 After the complainant had retrieved her wallet and returned home, she sent the applicant a text message which read, ‘are you my boyfriend?’ Over the next six weeks, she maintained phone contact with the applicant while she considered what to do.
21 The relevant complaint evidence in terms of exactly what was said, when it was said and in what surrounding circumstances, is less than clear and, to some degree, in dispute. A process of discovery has recently been undertaken by the defence to try and shed more light on the issue.
22 According to the prosecution opening, the complainant told a friend over Skype that a man had tried to rape her. When the police contacted the complainant on 9 June 2015, she made a formal complaint. Later that day, she told another friend that she had met the applicant on a tram and that ‘she had got away before [he] raped me’.
Defence response and issues in dispute
23 As the defence response of 28 July 2020 makes clear, there is no issue about the applicant having engaged in digital and then penile penetration of the complainant’s vagina on the date of the alleged offending. The issue in this trial is, as it has always been, whether the prosecution can prove, in respect of each charge, that the complainant did not consent, and that the accused was aware that the complainant was not consenting or might not be consenting.
Legislative framework and legal principles
24 On 18 August 2020, I summarised the relevant legislative framework and legal principles regarding this type of application when granting an application for a trial by judge alone made in respect of the first of the applicant’s three re-trials.[15] I refer to and adopt that analysis for the purposes of this ruling.
Requirements of s.420D(1)(a)-(c) established
[15] DPP v Jacobs (a pseudonym) (No 1) [2020] VCC 1251, [24]-[38].
25 The first three requirements in s.420D(1) have clearly been established in this case. As each of the two rape charges allege an offence under Victorian law, 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 also established. The applicant consents to the making of an order granting trial by judge alone after 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)
26 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’s consent 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 forensic disadvantage that the applicant will suffer if the trial proceeds with a jury rather than with a judge alone.
27 The applicant’s counsel submitted that the applicant’s consent to an order granting a judge alone trial should be given due weight.
28 To demonstrate 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 these serious charges for a period of more than five years. During that time, he has experienced a fluctuating and uncertain future, through no fault of his own, and for a significant part of that period, he has had to endure the onerous nature of imprisonment.
29 Counsel submitted that the advantages of continuing with the business of the court and mitigating the serious issues of delay are powerful factors that militate in favour of an order for trial by judge alone. In that context, reference was made to DPP v Combo (‘Combo’).[16]
[16] [2020] VCC 726, [62].
30 The final matter relied on was fact specific and related to the circumstances surrounding the complaint evidence. It should be noted that the chronology and circumstances of that evidence are disputed and not entirely clear. The two rapes are alleged to have occurred at the applicant’s apartment on 6 May 2015. The complainant made a formal complainant to the police as a result of them contacting her on 9 June 2015. She had told one friend that a man had ‘tried to rape her’ and another friend that she had ‘got away before Glen raped her’. The prosecution alleges that on the following day, she told the second friend the full nature of the allegations. Based upon an electronic message sent by the complainant, the defence assert that there is a very real possibility that the police informed the complainant that the applicant had ‘tried to rape another girl and was in gaol’. The defence therefore wish to explore this topic in order to ascertain whether, and to what extent, any such communication by the police to the complainant, could have influenced the complaint narrative.
31 The applicant’s counsel therefore submits that there is a forensic disadvantage point to the following effect. When the applicant was previously tried for these charges of rape, he was forensically hamstrung from seeking to undermine the circumstances in which the complainant made any of her complaints, including her complaint to the police on 9 June 2015. For example, they were forensically prevented from exploring in evidence whether the police had told her that the applicant was a suspect for other rapes and about the circumstances of any of those other allegations before she made any allegations of her own about the applicant. Trial counsel was unable to explore that subject matter 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 could not be cured or sufficiently ameliorated by any judicial direction.
32 By contrast, if this application is granted, that line of enquiry can be explored without prejudice to the applicant as 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)
33 As with the two previous applications, counsel who appeared for the prosecution did not oppose the making of an order for a trial by judge alone.
34 The learned prosecutor very fairly conceded that the 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.
35 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, each of which, it was submitted, pointed in favour of a jury trial.
36 The first factor was the fact 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.
37 The second factor relied on was that each charge of rape required the ultimate fact finder to apply objective community standards, since any consideration of whether the applicant may have held a belief that the complainant was consenting or might have been consenting also permitted consideration of the allied issue of the ‘reasonableness’ of that belief. That said, counsel conceded that this issue really arose at a secondary level rather than directly from the terms of the element itself.
Reply by applicant’s counsel
38 By way of reply to the prosecution’s submissions, counsel for the applicant made the following arguments.
39 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, counsel placed reliance on R v Qaumi (No 14)[17] and DPP v Ritchie (a pseudonym).[18]
[17] (2016) 265 A Crim R 575.
[18] [2020] VCC 1111.
40 The need to apply objective community standards for the offences 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.
Analysis
41 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 applications made in respect of the first and second trials.[19]
[19] [2020] VCC 1251, [55]-[68]; [2020] VCC 1262, [29]-[43].
42 As indicated earlier, the essential pre-conditions set out in s.420D(1)(a)-(c) of the CPA have, in my view, been made out.
43 The remaining pre-condition in s.420D(1)(d) is also established. In my view, all things considered, 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.
44 A combination of factors has led me to that conclusion, of which the two most significant are the delay and inter-related need to continue with the administration of justice in the current COVID-19 environment. Delay is a powerful factor in this case and points very strongly in favour of a trial by judge alone. And, as contemplated by the relevant emergency legislation, there is a need for trials to continue in this state and to be seen to continue despite the current suspension of jury trials.
45 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.
46 I consider that the forensic disadvantage point is a relevant consideration and one that militates in favour of ordering a trial by judge alone. It is difficult to assess with precision what weight to give to this factor as the relevant cross-examination of the complainant and any other relevant witnesses, including police witnesses, is yet to occur. In the event that the trial judge permits this line of cross-examination, it may turn out to have been a significant forensic disadvantage suffered by the applicant at the last trial or a very minor one or something in between. What remains relevant, however, is the fact that a trial by judge alone will afford the defence an opportunity to seek to fully test the true value of the complaint evidence whereas a trial by jury will not.
47 In relation to the two additional factors raised by the prosecution, I simply wish to repeat what I have said in the two earlier applications.
48 I do not accept the submission that juries are necessarily superior to judges when it comes to assessing the credibility of a witness whose credibility is in issue. I remain of the same view that I expressed in Ritchie and for the same reasons. 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.
49 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 the weight that ought to be attached to this factor.
50 Whilst the prosecution flagged their concerns about being able to call the complainant at any future trial, at least while she remains temporarily stranded in Colombia as a result of the COVID-19 pandemic, I consider it to be a matter for the trial judge to consider and, if necessary rule on, rather than it being a relevant factor for me to consider in determining this application.
51 I have carefully considered, weighed and balanced all of the relevant considerations in this application as best I can. Ultimately, I have decided 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, those relating to the significant delay 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
52 Accordingly, I make the following orders.
53 Pursuant to s.420D(1) of the CPA, I order that the two charges of rape in Indictment F11854231.3B be heard and determined by a judge alone without a jury.
54 I now list this trial for a mention, before the allocated trial judge, at 9.30am on Friday 9 October 2020.
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