Director of Public Prosecutions v JH (Judge alone trial application)
[2022] VSC 237
•13 May 2022 (First revision 27 May 2022)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0091
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JH | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 May 2022 |
DATE OF RULING: | 13 May 2022 (First revision 27 May 2022) |
CASE MAY BE CITED AS: | DPP v JH (Judge alone trial application) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 237 |
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CRIMINAL LAW – Application for Judge alone trial – COVID-19 considerations – Claimed concern regarding nature of allegations and risk of adverse publicity – Application not opposed by OPP based on COVID-19 considerations – Where potential savings of time and resources not a prominent factor given the nature and history of the case – Self-defence and intention in issue – Whether issues better left to jury – Where interests of justice lie – Application refused – Criminal Procedure Act 2009 s 420E.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill | Office of Public Prosecutions |
| For the Accused | Mr J Desmond | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
On 16 April 2021, JH was committed to this Court for trial on a single charge of murder via the fast-tracked procedure in this Court. The Crown allege that JH murdered GM on 14 October 2020. JH claims he acted in self-defence, and that he is, in any event, not guilty of murder. The incident in question was captured on CCTV installed at GM’s home.
Briefly, the alleged offending arises out of a [stabbing incident that was captured on CCTV][Redacted.]
An indictment for the single charge of murder was filed in this Court on 22 April 2021. Cross examination of the pathologist under s 198B of the CriminalProcedure Act 2009 (‘Criminal Procedure Act’) proceeded on 5 May 2021 before Judicial Registrar Freeman. The parties participated in a case conference before Coghlan JA on 26 October 2021. The matter did not resolve. The case is currently listed for a 10 to 12 day trial in [a regional Court] commencing 23 May 2022. There are no other outstanding pre-trial matters to be determined, and the matter is ready to proceed on the fixed trial date.
On 26 April 2022, the Defence filed an application for a trial by Judge-alone pursuant to s 420E of the Criminal Procedure Act, and submissions in support of that application. The Crown filed their submissions in reply on 3 May 2022.
On 12 May 2022, I heard some further brief oral submissions from the parties.
I have decided to refuse the application for the reasons that follow.
Applicable law
By way of background, the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 re-inserted Chapter 9 into the Criminal Procedure Act, on a temporary basis. Chapter 9 provides for judge alone trials to be ordered while there is a pandemic declaration in force.
‘Pandemic order’ is defined at s 165AI(1) of the Public Health and Wellbeing Act 2008. The current pandemic order in force is the Pandemic (Public Safety) Order 2022 made 22 April 2022. It expires on 12 July 2022. Accordingly, I am satisfied that there is a current pandemic order in force for the purposes of s 420E of the Criminal Procedure Act.
Relevantly for the purposes of this application, s 420E of the Criminal Procedure Act provides:
Court may order trial by judge alone if pandemic order is in force
(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 while a pandemic declaration is in force; or
(b)at any time on an application made by the prosecution or an accused while a pandemic declaration is in force.
(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.
The charge on the indictment is an offence under the law of Victoria, and the accused consents to be tried by judge alone without a jury. The accused has also obtained legal advice about whether to give his consent to this application, including legal advice on the effect of the order for trial by judge alone. Accordingly, the only question to be determined on this application is whether it is in the interests of justice that the trial in this matter is heard by a judge alone.
Submissions
The Defence submit that it is in the interests of justice that a judge alone trial order be made on the following bases:
(a) The Crown’s narrative involves a dispute over illicit drugs. Given the prevalence of drug use and weapons in the community, the Defence say the accused has a legitimate and real concern that he would not receive a fair trial before a jury due to the negative association between illicit drugs and violence. They submit judges are better placed than jurors to put aside prejudicial material (such as illicit drug use) and to determine the matter on its merits;
(b) The key issues in dispute are whether the Crown can negate self-defence beyond reasonable doubt, and the accused’s intention. Regarding, intention the Defence say that the jury are not necessarily the better trier of fact, given the offending is captured on CCTV and so determining intention will be a matter of drawing an inference;
(c) The Defence submit this case does not require the application of objective community standards, as would be required for issues of negligence, dangerousness or indecency; and
(d) Lastly, the Defence note that this matter has garnered media attention in the [local] area which could be prejudicial to the accused, and that a judge alone trial would remove the risk of unfair prejudice that could flow if a juror had read any such publications.
In response, the Crown did not oppose the application. However, they made the following points:
(a) The relevant provisions were introduced to allow trial by judge alone in an effort to combat the effects of the pandemic on the criminal justice system, and delays caused;
(b) Given the purposes of the legislation that introduced the judge alone provisions,[1] the Court must consider the context of the pandemic and the impacts on the justice system in interpreting the provisions; and
(c) It is in the interests of justice that the trial be heard by a judge alone because the trial will be significantly shorter if heard without a jury, thereby saving precious court resources and time, and avoiding the risk of COVID-19 disrupting the trial.
[1]Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022.
The Crown did not accept that the alleged prejudice that may flow to the accused as a result of adverse publicity or references to drug use was a sufficient basis to grant the application. In addition, they submitted that if the question of self-defence is left to the trier of fact, the case may call for the partial application of objective community standards, although the matter will not necessarily turn on those community standards in a manner that would favour a jury trial. At the hearing on 12 May 2022, Ms Churchill agreed that matters of reasonableness that were relevant to the determination of self-defence were ordinarily matters best left to a jury. However, she highlighted that, as his Honour Chief Judge Kidd indicated in DPP v Combo (‘Combo’),[2] the judge alone trial legislation does not create a presumption in favour of either a judge alone or a jury trial.
[2][2020] VCC 726.
Mr Desmond for the Defence agreed that there was no presumption in favour of a jury trial under the judge alone legislation and submitted that where both parties are content to proceed by judge alone it would be difficult for the Court to find it to be in the interests of justice not to do so.
Consideration
While the judge alone application brought by the Defence is not opposed by the Crown, it is still a matter for the Court to determine, applying the test as to the interests of justice.
The phrase ‘the interests of justice’ is not defined in the CPA. While the Victorian authorities considering this issue are still rather limited, similar provisions have been in force in other states for some time, and so there is a significant amount of guidance on its meaning. In this jurisdiction, Chief Judge Kidd helpfully summarised the applicable principles in Combo.[3] It is clear that there is no express presumption in the legislation in favour of a jury trial in the relevant provisions of the CPA. Accordingly, there is no onus on either of the parties to rebut such a presumption. Both parties made this point before me on 12 May 2022. However, his Honour also observed that:
The default position is there will be a jury trial unless and until the Court’s discretion is enlivened (that is, it is in the interests of justice to make the s 420D(1) order) to make the order for a trial by judge alone. At a practical level, where an application is brought by a party for a judge alone trial (as is the case here), the party bringing the application effectively bears an evidential onus to persuade the Court that the discretion to order is enlivened and should be exercised.[4]
[3][2020] VCC 726, cited with approval by Hollingworth J in DPP v Tiba [2020] VSC 600, and also cited with approval by the Court of Appeal in Hooper v Oxymed Australia Pty Ltd [2021] VSCA 68 [37].
[4]Combo,[47].
It appears uncontroversial that what is in the interests of justice is broader than the parties’ interests and encompasses larger questions of the public interest. As her Honour Justice Hollingworth said in DPP v Tiba:[5]
The public interest includes ensuring the integrity and proper functioning of the criminal justice system within the courts, as well as ensuring that the accused receives a fair trial according to law.
[5][2020] VSC 600, [9].
I take account of the purposes of the judge alone provisions. I accept that there is a public interest in ensuring courts are able to continue to function to the greatest extent possible during the pandemic, and that in certain circumstances, a judge alone trial may be appropriate to achieve that.[6]
[6]I note the observations of the Court of Appeal in Hooper & Oxymed Australia Pty Ltd v DPP [2021] VSCA 68.
That being said, what will be in the ‘interests of justice’ will vary from case to case. No single factor is determinative, and I must balance the various interests and considerations.
Prejudice flowing to the accused from the mention of drugs, violence and/or adverse publicity
I am not persuaded that either of these matters militate in favour of a judge alone trial in this case.
With respect to the fact that illicit drug use and violence will be mentioned in the course of this trial, unfortunately those are, as the Defence indicates, prevalent factors, particularly in cases that come before this Court. The directions provided prior to the jury empanelment process will make clear to panel members that they must determine the case based on the evidence rather than personal bias if selected as jurors. Further, directions can be crafted to ensure jurors do not draw negative inferences about the accused’s guilt based on his drug involvements. The Court is well-equipped to direct a jury on how to approach evidence that discloses criminal activity that does not bear directly on guilt for the alleged offending. It does not appear to me that there is anything distinct or unusual about the facts of this case bearing on a jury’s capacity to determine the matter fairly and on the merits.
Similarly, with respect to the question of unfairness flowing from jurors having read adverse publicity about this case, the empanelment process is specifically designed to find out if jurors need to be excused if they have already read or heard something about this case. It is common for matters that come before this Court to have received publicity and media coverage. I have read and considered the media articles the Defence provided as part of their submissions. The nature or amount of publicity that this case has garnered does not appear out of the ordinary for a homicide in the State of Victoria.
Further, jurors are warned in preliminary directions, throughout the trial, and when I deliver my charge, that they not take account of or seek outside knowledge or discuss the case with anyone else, or conduct any outside research about the case. It is well-accepted that jurors can follow directions and put aside prejudicial material as directed.[7] Directions can be crafted to ameliorate the risk of prejudice. The concerns raised by the Defence do not rise above the usual matters heard by juries in the Court on a regular basis. Accordingly, I am not persuaded the arguments based on the nature of the trial and/or publicity add much to the argument that the trial should proceed before a judge alone.
[7]Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31]; cited recently with approval in Abbas v The Queen [2022] VSCA 39.
COVID-19 considerations
I accept the submission that a trial before a judge alone would likely be shorter than a trial before a jury. However, the savings may not be all that significant. The current trial estimate is 10 to 12 days. The parties estimate the trial would be seven days or shorter if it proceeded before a judge alone. In either case, it will not be a lengthy trial. The witness list is relatively short and the issues in dispute are confined. While a shorter trial is a relevant matter weighing in favour of this application as it might free-up a regional court sooner for other matters, it is not determinative. The use of judicial resources is also a matter to be considered. The time required to prepare written reasons for a verdict impacts on the Court’s ability to move on with other pressing work, which also impacts court backlogs. I also note that, to date, JH’s matter has not been greatly delayed by COVID-19. His case proceeded to this Court fairly quickly via the fast-tracking process, and he has a firm trial date.
Regarding the risk that COVID-19 will delay the proceeding, the risk being lower without a jury, this is a relevant consideration. However, this is not a case where a great many people will be required to attend Court in person for a long period of time. Accordingly, the risk of such disruptions is lower than for a lengthier trial. Based on my brief perusal of the depositions and s 198B material, it does not appear that the evidence of the prosecution witnesses will be very lengthy. Further, the Court will likely empanel an extra juror or jurors so that the trial can continue even if any jurors become unwell.
Lastly on this point, juries have been successfully empanelled and criminal jury trials have proceeded in this Court for several months now, although the pandemic continues. As canvassed with the parties on 12 May 2022, my inquiries indicated that the degree of interruption to trials in the criminal jurisdiction of this Court in more recent times due to COVID-19 factors has not been great.[8] Indeed, as mentioned to the parties, I conducted a matter before a jury in [the same regional Court] late last year without incident.
[8]Transcript of proceedings DPP v [JH] (Supreme Court of Victoria, S ECR 2021 0091, Jane Dixon J, 12 May 2022) 4.
Furthermore, the pandemic has now moved to a different stage, with significantly reduced restrictions on people mixing in the wider community as vaccination rates have increased. While I appreciate that COVID-19 considerations are at the heart of this application, they are not determinative. This Court has adopted a number of measures to prevent the spread of COVID-19 during trials, and to mitigate, as much as possible, any delay that might flow from it (such as regular rapid antigen testing, mask wearing, hand washing, the use of iPads rather than physical exhibits, and social distancing in the courtroom). Nevertheless, I accept that there will always be a risk of COVID-19 transmission during a trial where participants are attending in person.
Of course, there will always be a risk of juror unavailability, illness or misadventure in any jury trial. Were this a lengthy trial that had already been delayed, or had a number of unsuccessful start dates, of the kind described by Hollingworth J in DPP v Tiba,[9] this consideration would weigh more heavily in favour of proceeding by judge alone. Whilst the judge alone option is a useful tool for addressing trial backlogs, which are greater in the County Court than in this Court, in this case, as mentioned to the parties, there is no certainty that a verdict would be arrived at more quickly than if the case were to be decided by a jury, bearing in mind the requirement for the Court to produce written reasons.
[9][2020] VSC 600. In a similar vein, see Hooper v Oxymed Pty Ltd [2021] VSCA 68.
The nature of the issues in dispute and the application of community standards
A key issue in dispute in this trial is whether the accused acted in self-defence. Determining self-defence involves an assessment of the reasonableness of the accused’s actions. I note that self-defence is provided for at s 322K of the Crimes Act 1958 as follows:
Self-defence
(1)A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.
(2)A person carries out conduct in self-defence if—
(a)the person believes that the conduct is necessary in self-defence; and
(b) the conduct is a reasonable response in the circumstances as the person perceives them.
(3) This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury. [emphasis added]
Plainly, the determination of self-defence requires the application of objective community standards in order to determine the reasonableness of the accused’s man’s actions. Accordingly, it is a matter ideally left to a jury.[10] I agree that the determination of this issue will involve interpretation of the CCTV footage, but I am not satisfied that a judge is better equipped to make an assessment about that footage than a jury. Certainly, it would seem to me that twelve minds would be better than one in determining reasonableness. That being said, I note that as recently as last year, the New South Wales Supreme Court heard a judge alone trial in R v Reay[11] for a single murder charge where excessive self-defence was in issue along with the alternative charge of manslaughter.[12] I note though that the case concerned a homicide committed in prison and there was a significant amount of tendency evidence, distinguishing it from the present case.
[10]I note Justice Hollingworth’s comment in DPP v Tiba [2020] VSC 600, [18] in relation to that case: “This case does not raise any issue such as reasonableness or dangerousness, which might require the application of community standards – matters for which juries are ideally suited.”
[11][2021] NSWSC 311.
[12][2021] NSWSC 311.
Ms Churchill for the Crown has indicated that s 322L of the Crimes Act 1958 will be raised in this case, which will require the Court to determine whether or not self-defence can be left open.[13] Ms Churchill has rightly indicated that the appropriate time for this question to be determined is after the close of all the evidence (including any evidence that may be called by the Defence) during the discussion about jury directions. I note this was the approach taken in the matter of DPP v McDowall.[14] In that case, his Honour Justice Beale found that s 322L applied, and so self-defence was not left open for the jury to consider.
[13]Section 322L of the Crimes Act 1958 provides:
Self-defence does not apply to a response to lawful conduct Section 322K does not apply if—
(a) the person is responding to lawful conduct; and
(b) at the time of the person's response, the person knows that the conduct is lawful.
[14][2019] VSC 341.
If I were to find that s 322L did apply in this case, self-defence would not be open, and so the remaining issue in dispute would be intention. It appears clear from the case law, particularly in New South Wales, that the question of intention can be determined either by Judge alone or a jury.[15] Both the CCTV footage, the communications between the accused and the deceased in the lead up to the incident and their pre-existing relationship will be relevant evidence on the question of intention, as will events following the deceased being injured. I understand some witnesses will be called on this point. The nature of the deceased’s injuries will also be relevant. Determining the question of intention will require the drawing of an inference from the entirety of the evidence. I accept that her Honour Justice Incerti sitting alone determined the question of intention (amongst other questions) in the matter of DPP v Ning Wang (‘Wang’).[16]
[15]See the discussion at [34]-[37] in R v Quami & Ors [2016] NSWSC 274.
[16][2020] VSC 701.
While there is precedent for this Court to determine murder and, in the alternative, manslaughter in a judge alone trial, noting again the case of Wang, I am not bound by a decision made in a different case at a different stage of the pandemic.
On both the question of self-defence and manslaughter, I accept that judges are capable of applying objective community standards. I note though what her Honour Justice Wilson of the New South Wales Supreme Court said recently in the case of R v Camilleri[17] at [76] in relation to the unique capacity of jurors in this regard:
[…] although I accept that judges are capable of applying the standards of the community, those standards are in my opinion best determined by a group of persons who represent a cross-section of the community, and bring to the task a wide range of experience of life and people. A judge has but one life’s experience to draw upon and that experience will be heavy in matters connected with the law; it cannot emulate or replace the cumulative experience of multiple individuals from a variety of backgrounds.
[17][2020] NSWSC 951.
I note also the following observation of the Court of Appeal in Hooper & Oxymed Australia Pty Ltd:[18]
It is important that the capacity of juries to grapple with and determine issues of some complexity should not be underestimated. Over a long period of time, juries, by their verdicts, have demonstrated, time and again, the merits of that system of justice. In addition, it is recognised that trial by jury does, ordinarily, enhance the public acceptance and confidence in our system of justice.
[18][2021] VSCA 68, [85].
The accused’s preference, availability of reasons and the Crown’s consent
It is relevant that, acting on legal advice, the accused in this case has expressed a preference for a judge alone trial, citing among his grounds for the application his concern about the prejudice he might suffer if his trial proceeds before a jury, and the desire for written reasons to be provided for the verdict. I have taken account of his preference, and have treated it as a weighty matter in considering where the interests of justice lie.
I have taken into account that the Crown do not oppose this application based on an expectation of savings in time that would flow from trial without a jury and based on COVID-19 considerations.
Decision
Having regard to all the relevant factors in this case, I am not satisfied that it is in the interests of justice for this trial to be heard by a judge alone, and accordingly I refuse the Defence’s application.
The matters that will be in dispute at the trial are whether the accused acted in self-defence (if this is ultimately left open for the jury), and intention – which will may lead to consideration of the elements of manslaughter, including the dangerousness of the accused’s man’s actions. Matters of reasonableness and dangerousness are ideally left to a jury. The key piece of evidence in this case is CCTV footage – and I consider that twelve minds would be better than one in interpreting that footage. I am not persuaded that there is a real risk that a trial before a jury would be rendered unfair due to the drug related background or previous publicity, such that the interests of justice would favour a judge alone trial. Those issues can be met satisfactorily by directions both during empanelment, in the running, and after the close of evidence, at which point I will of course hear from Counsel on the directions sought.
While the possibility of COVID-19 delay is relevant, it is not determinative. Fortunately in the present case, unlike some other cases that have been found suitable for a judge alone trial, the issues in this case are not overly complex or technical, the delays experienced by the accused to date are not excessive, and the pandemic has now moved to a different phase than at earlier times.[19] The [regional] courthouse [Redacted] is well-suited to conducting a jury trial in the current environment, with well-appointed spacious courtrooms. I do not consider that the risk of disruptions due to the COVID-19 pandemic leads to the result that a judge alone trial is required in the interests of justice.
[19]See Hooper & Oxymed Australia Pty Ltd v DPP [2021] VSCA 68, [93].
Accordingly, the application is refused.
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