Director of Public Prosecutions v Mason (a pseudonym) (Ruling No. 2)

[2021] VCC 163

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEXIA MASON (a pseudonym)

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2021
DATE OF RULING:	17 February 2021
CASE MAY BE CITED AS:	DPP v Mason (a pseudonym) (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2021] VCC 163

REASONS FOR RULING

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Subject:  Criminal Law – Application for trial by judge alone

Catchwords: Dangerous driving causing death; Application pursuant to s. 420D(2)(b) Criminal Procedure Act 2009 for Trial by Judge Alone – Application opposed by the prosecution – Interests of justice – Delay - Need for administration of justice to continue – Application of objective community standard.

Legislation Cited:     Crimes Act 1958, s 319(1); Criminal Procedure Act 2009, s420D; Sentencing Act 1991.

Cases Cited:DPP v Combo [2020] VCC 726; DPP v Truong & Bui [2020] VCC 806; DPP v Ritchie ( a pseudonym) [2020] VCC 1111; DPP v Verduci [2020] VCC 1166; DPP v Jacobs [2020] VCC 1251; DPP v Carlton [2020] VCC 1272; DPP v Hobson [2020] VCC 1557; R v Qaumi (No 14) (2016) 265 A Crim R 575; R v Stanley [2013] NSWCCA 124; R v Homann [2018] NSWSC 198; R v Belghar (2012) 217 A Crim R 1; R v Simmons (No 4) (2015) 249 A Crim R 120; R v Rayney (2011) WAR 383; Western Australia v Evans [2012] WASC 87 [4]. R v IB (No 3) [2020] ACTSC 103; Landsman v The Queen (2014) 88 NSWLR 534.

Ruling:  Application for trial by judge alone granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D. Gurvich QC with Ms J. McGarvie	Lamplugh Mcintosh Lawyers
For the Respondent	Mr M. Gibson QC	Ms Abbey Hogan, Solicitor for Public Prosecutions

(Revised)

(Her Honour Judge Dawes)

R U L I N G

1HER HONOUR:  The applicant, Alexia Mason,[1] is facing a single charge of dangerous driving causing death contrary to s.319(1) of the Crimes Act 1958.

[1] A pseudonym.

2The relevant procedural history is as follows:

24 August 2019	A collision occurred on Hawthorn Road in Caulfield South.  The applicant was driving a vehicle that collided with a pedestrian who was crossing the road.  The pedestrian suffered extensive injuries and subsequently died.
22 January 2020	The applicant was charged with Dangerous Driving causing death and released on bail.
26 June 2020	A ‘submission only’ committal was conducted at the Melbourne Magistrates' Court.
8 July 2020	The applicant was discharged regarding this offence.
2 September 2020	The DPP filed a direct indictment in this Court, namely one charge of dangerous driving causing death.  The applicant intends to plead not guilty to the charge.
30 September 2020	The applicant made an application for this charge to be remitted to the Melbourne Magistrates' Court for summary determination.  The application was refused.

Current application

3The applicant seeks to have this matter dealt with a judge alone trial. This application is made under s.420D of the Criminal Procedure Act, which provides:

(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.

4The legislative framework and applicable legal principles have been considered in a number of decisions.  Chief Judge Kidd outlined the relevant considerations in the DPP v Combo (‘Combo’).[2]  His analysis was adopted with approval by Justice Hollingworth in the DPP v Wang (ruling No 1).[3] 

[2] [2020] VCC 726 [32]-[66] (‘Combo’).

[3] [2020] VSC 438 [3]; see also DPP v Truong & Bui [2020] VCC 806 [20]-[38]; DPP v Ritchie (a pseudonym) [2020] VCC 1111 [32]-[37] (‘Ritchie’); DPP v Verduci [2020] VCC 1166 [31]-[41] (‘Verduci’); DPP v Jacobs [2020] VCC 1251 [24]-[37] (‘Jacobs’); DPP v Carlton [2020] VCC 1272 [ 19]-[21]; DPP v Hobson [2020] VCC 1557 [19]-[23] (‘Hobson’).

5The relevant principles outlined in Combo[4] are as follows: 

[4]Combo (n 2).

·There is no presumption in favour of jury trials, nor an onus on either party to rebut such a presumption.[5] 

·The default position is that a matter will proceed as a jury trial unless and until the Court's discretion is enlivened, by satisfying the criteria outlined in s.420D(1) of the Criminal Procedure Act.[6] 

·The party who brings the application bears the onus of satisfying the Court that the discretion is enlivened and should be exercised.[7] 

·The discretion will be enlivened if:

(a)  The offence is an offence under the law of Victoria and

(b)  The applicant consents to the making of the order, and

(c)  The applicant has obtained legal advice relating both to her consent and the effect of such an order, and

(d)  If it is in the interests of justice to make an order for a judge alone trial.[8]

·The expression 'the interests of justice' is ‘broad and derives substance from the context in which it is used.’[9]  It includes ‘the interests of the parties’ as well as ‘legal principle, the public interest and policy considerations.’[10] 

·A determination about where the interests of justice lie involves a balancing of these various and sometimes competing interests, as they arise in an individual case.  No single factor will be determinative.[11] 

[5] Ibid [46]-[47] and footnote 16, this construction is also consistent with authority in other Australian jurisdictions. See for example R v Belghar (2012) 217 A Crim R 1, 25 [96]; R v Stanley [2013] NSWCCA 124 [42] (‘Stanley’); R v Simmons (No 4) (2015) 249 A Crim R 120, 132 [57]; R v Rayney (2011) WAR 383, 387-388 [17]; Western Australia v Evans [2012] WASC 87 [4].

[6]Combo (n 2) [47].

[7] Ibid.

[8] Ibid; Criminal Procedure Act 2009 s420D(1)(a)-(d) (‘CPA’).

[9]Combo (n 2) [48], citing R v IB (No 3) [2020] ACTSC 103 [94].

[10] Ibid, citing Landsman v The Queen (2014) 88 NSWLR 534, 550 [69] (‘Landsman’).

[11] Ibid [49], citing Landsman (n10) [69]-[70].

The issues at trial:

6It is undisputed that the offence charged is an offence under the law of Victoria, the applicant has received the relevant legal advice and that she consents to a trial by judge alone. 

7The only area in dispute is whether it is in the ‘interests of justice’ to make a ‘judge alone’ order.  The prosecution contends that it is not; conversely, the applicant contends that it is. 

8The prosecution must prove three elements of this offence beyond reasonable doubt:

(1) That at the time the applicant was driving, and

(2) the applicant was driving at a speed or in a manner that was dangerous to the public, and

(3) the dangerous driving caused the victim to die. 

9The defence have no issue with the first and third elements of the charge.  The second element is in dispute. 

10The prosecution must prove that the applicant drove in a manner that significantly increased the risk of serious injury or death over and above the ordinary risks of the road.  This could be because the applicant's driving increased the likelihood of a collision, or because it made it more likely that any injuries suffered in a collision would be serious.

11The prosecution must prove that the applicant's driving involved a serious breach of the proper management or control of a vehicle which created a real risk that members of the public in the vicinity would be killed or seriously injured. 

Trial

12This matter is ready to proceed to trial and there is no unavailability of witnesses.  Both parties agree that the duration of the trial is likely to be relatively short; up to five days.  Civilian witnesses are unlikely to be cross-examined.  They were not called at the committal.  The evidence also consists of expert evidence regarding accident reconstruction, CCTV evidence, police witnesses and a record of interview.  The parties agree that there would be no adverse impact on the evidence, should the trial be delayed.  The quality of the evidence is not expected to deteriorate over time.  The applicant submitted that this case could be heard as a remote hearing, either in part or in full. 

Prosecution case

13A brief summary of the prosecution case is as follows. 

14On 28 August 2019, at around midday, the victim, an 82-year-old man was slowly crossing Hawthorn Road, Caulfield South.  At around the same time, the applicant left a carwash and travelled along Glenhuntly Road, before making a left-hand turn into Hawthorn Road.  The prosecution submits that she drove approximately 500 metres down Hawthorn Road, to the point of the collision.  The prosecution case is that CCTV footage shows there was a period of at least 20 seconds between the time the deceased stepped off the curb onto the roadway and the time of the collision.  Further, that the applicant had at least 13 seconds to observe him as he moved across the road. 

15Expert evidence forms part of the prosecution case.  The estimate is that the applicant was travelling between 40 to 53 kilometres per hour at the time of this incident.  Skid marks observed at the scene indicate that the applicant did not activate her brakes, until immediately prior to or just after striking the victim.  A mechanical inspection conducted after the accident indicates that there was no fault in the vehicle.  The point of impact of the victim on the applicant's car was on the front driver's side of the vehicle. 

16As a result of the impact of the accident, the victim suffered injuries and died the following day.

17Evidence will be provided from witnesses who spoke to the applicant shortly after the accident.  She said, 'I don't know how this happened, he just appeared'.  When spoken to by police, the applicant answered questions in her record of interview.  It is proposed to play the interview at trial. 

18The prosecution contends that the applicant did not keep a proper lookout over a period of at least 13 seconds prior to the collision. 

Defence response

19As I have already stated, the defence dispute the second element of the charge and parts of the evidence that relates to this. 

20In particular, the driving conditions in Hawthorn Road, the distance between Glenhuntly Road and the point of the collision, that the victim was in the applicant's line of sight for 13 seconds and the point at which she activated her brakes. 

Analysis of this application

The applicant’s submissions:

21An assessment of where the interests of justice lie includes a consideration of the COVID-19 pandemic and the prevailing situation within the community.[12]  As a result of the pandemic, jury trials have been suspended and only haltingly resumed. 

[12]Combo (n 2) [54]; R v BD [2020] NSWDC 150 [3].

22The relevant collision occurred almost 18 months ago.  Should this matter proceed as a judge alone trial, as the legislation currently stands it must commence before 26 April 2021.[13] 

[13] CPA (n 8) ss 420ZN, 454A, 420D; Trial by Judge Alone – Emergency Protocol COVID-19, para 1.21.

23Should the matter proceed as a jury trial, at best it will commence in Term 2 of 2022.  It is equally likely that it may not proceed until Term 4 in 2022.[14]  A jury trial would not, therefore, commence until at least 12 months after a judge alone trial could proceed.  This equates to 32 - 34 months after the incident, although it may not commence for 38 - 40 months. 

[14] See the County Court’s Criminal Division: Revised Relisting Schedule of Melbourne Criminal Trials commencing in January 2021.

24The applicant contends that the delay has already and will continue to weigh heavily on her.  The fact that this incident resulted in the death of another person adds to the stress of awaiting the outcome of the trial and adds further weight to the importance of it being determined expeditiously.[15]  The applicant was discharged at committal and then directly indicted two months later.  She contends that this has added to the burden of the delay. 

[15]Hobson (n 3) [32].

25The maximum term of imprisonment for dangerous driving causing death is 10 years. It is a Category 2 offence, so s.5(2H) of the Sentencing Act applies.  Should the applicant be found guilty of this offence, a mandatory gaol term will follow, unless any of the prescribed exceptions are made out.  I am told that the imposition of a mandatory gaol term has added to the applicant's stress, pending the hearing. 

26The applicant is 31 years of age and of good character.  She works as a Captain in the Australia Defence Force and practises as a dentist.  The applicant is currently pregnant and due to give birth in July 2021. 

27The applicant's preference is to forgo her right to a jury trial, seeking a judge alone trial.  This is relevant when determining where the interests of justice lie.[16]  Weight needs to be given to the subjective preference of the applicant, to be tried expeditiously by a judge alone, rather than enduring a substantial wait for a trial by a jury.[17]  This is relevant but not determinative on its own.

[16]Combo (n 2) [65]; R v Qaumi (No 14) (2016) A Crim R 575, 582 [22] (‘Qaumi’).

[17] See Combo (n 2) [65]-[66], Ritchie (n 3) [43], Stanley (n 5) [43]; Verduci (n 3) [65]; Jacobs (n 3) [62];

Hobson (n 3) [35].

28The applicant acknowledges where a fact in issue involves an application of a community standard, this tends in favour of a jury trial.[18]  This is ‘because an assessment of objective community standards is best undertaken by a group of members of the community’.[19] 

[18]Combo (n 2) [63]; Qaumi (n 16) [32].

[19] Combo (n 2) [63], citing R v Homann [2018] NSWSC 198 [36]-[37] and Stanley (n 5) [43]; See also    Qaumi (n 16) [32]; Hobson (n 3) [35].

29In this case, the applicant accepts that there is a need to apply objective community standards to determine whether her driving was dangerous.  The applicant's submission is that this is not an overly complex case.  There is no suggestion that the applicant travelled at excessive speed, was affected by drugs or alcohol or that other matters might complicate the issue to be considered. 

30The defence is that the applicant did not see the victim. 

31The issue is fairly limited, whether the Crown can prove that her inattention amounts to being dangerous within its legal meaning.

The prosecution submissions:

32The prosecution admits that delay is a relevant factor that would support an application for a judge alone trial.  It is conceded that a judge alone trial could be accommodated significantly earlier than a jury trial.  It was submitted, however, that being a relatively short trial, it would favour an earlier listing in the current environment. 

33The prosecution’s submission is that the likely delay for a jury trial from the date of the offence to the eventual hearing of the case, is not exceptional.  While the prosecution acknowledges that this could be described as a sizable delay, they do not admit that it is excessive.  Further, that the potential delay does not exceed those that occurred prior to the pandemic. 

34The applicant is on bail, so the delay is not oppressive in those circumstances. 

35The prosecution's position is that this case is, in effect, a quintessential case for a jury, because the issue at trial solely relates to the determination of community standard.  Thus, a jury, exercising their collective judgement, is far better placed to determine this issue, than a single judge. 

36In Combo, Chief Judge Kidd held that an assessment of objective community standards is best undertaken by a group of members of the community and is a factor that tends in favour of a jury trial.[20]  In the present case, the onus rests with the prosecution to demonstrate the applicant's driving involved a serious breach of the proper management or control of the vehicle, which created a real risk that members of the public in the vicinity could be killed or seriously injured. 

[20]Combo (n 2) [63]-[64].

37This case does not involve an assessment of the credibility or reliability of witnesses.  The prosecution submits that the case here is based on a value judgement, the degree of inattention, which the Crown say was prolonged. 

Consideration

38When considering this application, I am required to balance various and competing interests in order to determine where the interests of justice lie. 

39This involves weighing the advantages of a judge alone trial now against those of a significantly delayed trial by jury. 

40Should this matter proceed as trial by a judge and jury, the applicant would have to endure this serious criminal charge hanging over her head for a significantly longer period than if the matter proceeded before a judge alone. 

41In my view the issue of delay is significant in the context of this application.  Should this case proceed in front of a jury, the earliest possible hearing would be approximately two years and eight months after the date of the collision. 

42The reality is, however, that there is no certainty as to when this trial would proceed in front of a jury. 

43There is a real prospect that it will not be reached until the end of 2022.  In that case, the delay is likely to be more than three years after the date of the collision.  Further delays cannot be excluded, due to the unpredictability of the COVID-19 pandemic. 

44In my view, this amounts to a significant and extraordinary delay.  I accept that the burden of a potential imposition of a term of imprisonment will weigh very heavily on the applicant, particularly as she is not someone who has a history of contact with the criminal justice system. 

45While a ‘judge alone’ hearing will result in running a trial while the applicant is pregnant, the alternative is for her trial to proceed being the mother of a very young child.  Neither situation is desirable. 

46I accept that a jury is preferred when considering the application of community standards. Should Parliament have intended that this offence, or others of a similar nature, ought be excluded from the operation of s.420D, however, it would have been a simple matter to incorporate an exclusionary clause in the section.

47I am fortified in my view as dangerous driving causing death is an offence that is triable summarily.[21]  Parliament has, therefore, determined that a single judicial officer is capable of appropriately applying community standards, in order to determine whether the charge is proven.  That would be the case here, in a judge alone trial. 

[21]CPA (n 8) s 28(1).

48I acknowledge that the decision that I make is contrary to the preference of the family of the deceased.  They will, however, have access to the full reasons explaining the trial judge's verdict, unlike if the case were to proceed before a jury. 

49In my view both a judge sitting alone, or a judge and jury would be well equipped to hear this factually simple case.  The disadvantage of a judge alone hearing the case (if there is one) is outweighed, in my view, by the timely resolution of this trial.  I propose to grant the application. 

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