Director of Public Prosecutions v Roberts (Ruling No 6)
[2022] VSC 68
•14 February 2022
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0324
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JASON JOSEPH ROBERTS | Accused |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 February 2022 |
DATE OF RULING: | 14 February 2022 |
CASE MAY BE CITED AS: | DPP v Roberts (Ruling No 6) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 68 |
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CRIMINAL LAW – Retrial – Accused charged with ten counts of armed robbery and two counts of murder – Allocation of courtroom for trial – Impact of social distancing restrictions due to COVID-19 on running of trial – Whether trial should be adjourned until traditional trial arrangements are available – Whether accused will receive a fair trial under current arrangements – Trial to proceed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Ihle QC with Mr G Hayward and Ms S Lenthall | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr D Hallowes SC with Mr M McGrath | Stary Norton Halphen |
HIS HONOUR:
In this matter the trial is fixed to commence with empanelment of the jury on Monday 21 February next. It is anticipated that the trial will take about four months to complete. An issue has been raised whether the trial should proceed on that date as planned and if so in which court the trial should be held.
At present, due to the state of the COVID–19 pandemic, the Supreme Court protocols stipulate that criminal jury trials must be conducted in a manner in which social distancing, recommended by the Chief Health Officer, can be maintained. That requirement has the effect in particular that members of the jury need to be repositioned in the courtroom with a consequence that it is necessary to alter the position and nature of the Bar table and the position of the accused in a number of courts. The protocols and the effect of them also very much affect the ability of members of the public to be able to attend the court in person.
If the trial were to proceed next week it would be conducted in one of three available courts, namely Court 1, which is the Banco Court, Court 11 and Old High Court 3. It is the position of the parties that the least preferred option is Court 11, so I shall focus on the issues relating to the Banco Court and Old High Court 3.
Last Monday, 7 February, I conducted a meeting with counsel and solicitors for each side to assist the parties to indicate which court would be preferrable and also to enable them to identify any adjustments which they might wish to be made or facilities provided to assist them in the conduct of their respective cases. And on that day the parties with me viewed Court 11, Banco and Old High Court 3.
On the following day, 8 February, counsel for each side signed a joint memorandum, which was forwarded to me, indicating their concern as to the current arrangements and requesting that this court make further enquiry as to whether a suitable court might be available in the County Court in which the trial could proceed without the adjustments to the position of the jury and the position of the Bar table.
As a consequence, the Chief Justice made the appropriate enquiries of the County Court, however the County Court have been unable to accommodate the request. The County Court has a substantial backlog due to the pandemic, which is now in its third year. In particular it has a number of trials in which there are more than one accused.
Accordingly, the position is that the trial in this case must proceed in the Supreme Court in one of the courts that I have mentioned.
The defence position is that the trial should not proceed until a court can be made available which is not affected by the protocols for social distancing. In other words, the case should be adjourned until the traditional setup for criminal jury trials can be utilised.
Senior counsel for the accused, Mr Hallowes, has put the alternative position that if the matter is to proceed, the preference on the defence side is that it should be heard in Old High Court 3.
The prosecution position is that, as I understand it, the trial should proceed although it does not, it seemed to me, oppose a short adjournment to see if the protocols might be varied in the next couple of weeks. It has been submitted that if the trial is to proceed on the basis of social distancing it should be held in the Banco Court.
As I have stated both sides do not wish the trial to proceed in Court 11.
On behalf of the accused Mr Hallowes, it seems to me, relied on five particular matters which he submitted collectively have the effect that a fair trial could not be had in any of the courts but particularly in the Banco Court and indeed in Court 11. He accepted that each of these matters would appear to affect more a trial in the Banco Court than in the Old High Court 3 but nevertheless they are applicable to a trial in the Old High Court 3. Those matters are as follows.
First, there is a lack of space at the Bar table, particularly in the Banco Court, to accommodate laptop computers, which counsel will be using, their folders and other matters that they will need in order to be able to conduct their cases.
Secondly, there is lack of room particularly in the jury box in the Banco Court. It is I think, fair to say, that counsel cannot be required to stand almost stock still particularly when they will be cross–examining some of the witnesses for quite some considerable time and indeed leading them in evidence-in chief.
The third factor which is relied on particularly affects the Banco Court and that is the position of the jury. In the Banco Court, as I shall shortly explain, the jury will be set out seated separately throughout the body of the court and Mr Hallowes submitted it will be more difficult to be able to make appropriate submissions to them in that position.
The fourth disadvantage, which probably affects both courts, is the capacity for counsel, and solicitors, to come and go from the Bar table during the hearing in order to be able to confer with witnesses and the like. And the fifth disadvantage which Mr Hallowes has raised, particularly in relation to the Banco Court, but also in relation to Old High Court 3, is the difficulty of having the instructing solicitor or instructing solicitors seated in a position in which they can readily communicate with counsel.
On behalf of the prosecution, Mr Ihle, Queens Counsel, submitted that the trial should proceed in the Banco Court and not in Old High Court 3. He submitted that there are three particular reasons for that. First, in the course of the trial, it is clear that one or more of the prosecution solicitors will be required to conduct the electronic side of the trial in relation to the production of exhibits and most particularly in relation to the listening device recordings which will play a reasonably significant role in the case.
The capacity for an instructing solicitor to do that effectively is, Mr Ihle told me, much better in the Banco Court than in Old High Court 3. Secondly, the position of the accused in Old High Court 3 is far from desirable being seated at very close behind the Bar table. And thirdly and quite importantly, Mr Ihle stressed that if the trial were to commit to proceed in Old High Court 3 and not in the Banco Court, members of the family of the two policemen would not be able to attend in person, they would be relegated to hearing the matter on livestream and this is a matter which is quite understandably, of considerable importance to them.
The matters raised by counsel really raise two interrelated questions; firstly, whether the trial should proceed on 21 February, or whether it should be deferred until the requirement for social distancing of jurors is no longer operative. Secondly, if the trial is to proceed, the question of which court it should be held in, Old High Court 3 or Banco. At the most basic level, the critical question is whether a fair trial of the charges against Mr Roberts can be held with the current configuration in either of the two courts which are under consideration.
The accused’s right to fair trial is fundamental and as I stated during argument, if I was concerned that he could not be accorded a fair trial in either of those courts, then I would have no option than to stay the proceeding until the configuration of the courts were altered. It is also, as I have explained to counsel, a matter to which I have given quite anxious consideration particularly over the weekend and further consideration after hearing your helpful submissions today.
In considering that question, it is important to consider the configuration of the court if it were to be held in either Banco Court or Old High Court 3.
In the Banco Court the jury will be seated in a position which is behind the Bar table. There are two rows of seats there and that will accommodate eight of the jurors. There is then a gap where if there is a criminal jury trial, ordinarily the dock would be and behind that, a little distance behind them, would be the remaining seven members of the jury spaced out. The jury room would be in court 2.
The counsel would be seated in and use the jury box. The accused man would be seated in the media box and members of the public would be able to attend seated upstairs.
With Old High Court 3, the setup is much closer to the usual or traditional setup in a criminal jury trial. Firstly, the jury would be seated on seats on one side of the courtroom. They would be sufficiently spaced to allow for social distancing and in that way the jury box would take up most of one side of Old High Court 3. The jury room would be in the jury lounge which is reasonably close to Old High Court 3.
The witness box is located opposite the jury which is of course of considerable advantage. Counsel would have a Bar table, as I discussed with counsel today. The Bar table would probably be about the same width as the Bar table in the court we are sitting in, Court 3 but it would be narrower. The Bar table would be at some 45 degrees to the witness box. One edge of it is fairly close to the witness box which I consider to be a disadvantage but due to the length of it at the furthest end, which would be about four and a half to five metres from it, it would seem to me if counsel were to cross-examine witnesses, particularly in an adversarial way, it would be desirable for counsel to move that to that end of the table. The accused man would be at the rear of the court but on the same side as counsel.
In terms of social distancing in trials, the Supreme Court has conducted some 12 criminal trials in which social distancing has been implemented. Three of them were in the Banco Court, four were in the Old High Court 3 and five were in Court 11. The longest trial in the Banco was some 12 weeks. It was held in February 2021 and there were two accused. The longest trial in the Old High Court was some six weeks in October 2021 on charges of murder and attempted armed robbery.
I have spoken to the judges who conducted those trials. They each told me that the trials proceeded quite satisfactorily. They felt that counsel were able, in each case, to present the cases without any untoward difficulty and indeed, counsel did not raise any issues about it.
However, it must be acknowledged that while quite clearly those trials were workable and the social distancing formula did work, neither trial was of the dimension of this case. The 12–week trial in the Banco Court involved a number of pre–recorded witnesses so there was less need for lengthy cross–examinations. And in the Old High Court six–week trial, there were a number of witnesses who were on audio–visual link which alleviated some of the issues I thought might arise in relation to cross-examining witnesses.
The question as to which court is preferable is very much interrelated as to whether in either court a fair trial could be had. In my view, it is quite clear that if a trial were held in either court, the position of the Bar table in the Old High Court 3 is far preferable to enable counsel to properly present their cases. This is, it seems to me, a most important consideration. This is a very complex case. It will be a long case and there will be a number of witnesses who will be in the witness box for some time and there will be a large number of exhibits.
The existence and availability of a Bar table in the Old High Court 3 would seem to be far preferable for counsel on both sides, but particularly the defence in the presentation of their case. I must say, speaking as a former counsel, it would be most difficult to conduct lengthy cross–examination and particularly difficult and complex cross–examination from a jury box. While this consideration affects both sides, it particularly affects counsel for the accused, as there are a number of aspects of the prosecution case which will need very careful and quite prolonged cross-examination and I must say I am not satisfied that that could be properly conducted in Banco.
The position for counsel in Old High Court 3 is far from optimal but there is a Bar table. As I have said, it is of traditional width or length but not quite so much width. There is scope to extend it by adding further table space and by adding bookshelves and the like. I have already invited counsel, and would do so again if the case was to proceed, to liaise with the member of this court who is responsible for organising the facilities — that is Ms Downey. The court will do its best to accommodate the needs and requirements of counsel.
The position of the instructing solicitors and the ability of counsel to communicate with their instructing solicitors will be difficult in both configurations. I understand what Mr Ihle has put to me in relation to the position of his instructing solicitor if the case were to be held in Old High Court 3. But I do not understand that with suitable adjustments, appropriate arrangements cannot be made to enable the instructing solicitor to be able to play the important role of producing the electronic side of the case.
The position of the accused is far from ideal in Old High Court 3 but I am heartened by the fact that certainly in the six–week Old High Court 3 trial that was held there last year, it did not present any problem and I do not anticipate that the position should be too difficult.
Taking those matters into account, as I say, having given this matter quite some consideration, I am satisfied that a fair trial can be conducted in Old High Court 3. In saying that, I readily acknowledge the setup is far from optimal and I understand and sympathise with the concerns of counsel on both sides. But I do consider that counsel on each side will be able to properly and effectively present their respective cases so that a fair trial can be had.
The question is whether in light of that I should defer the date upon which the jury is empanelled. It was put to me that perhaps if an adjournment were provided for a couple of weeks given the current arc of the Omicron variant and the increase in vaccination of the population, there may be a better prospect of the case being heard in the traditional manner.
As I discussed with counsel, if I do postpone the trial it seems to me impossible to foretell whether the restrictions in those circumstances which currently apply to courts in the Supreme Court will be removed or adjusted. While the current Omicron variant seems to be easing, and vaccination rates are increasing, it is a matter of speculation as to whether and if so when the restrictions might be eased or altered in criminal trials in this court to enable the case to proceed in the usual way.
Accordingly, I do not consider that there would be any benefit at this stage of deferring the empanelment for some time.
I should add this, that in relation to that matter as soon as the restrictions are eased I have been assured that there will be an appropriate court available in the Supreme Court in which the trial can proceed in the usual way.
There are three additional important advantages, it seems to me, of Old High Court 3 over the Banco. Firstly, as Mr Hallowes correctly said, the position of the jury is far more preferable. It is more in accordance with the traditional position that will enable the jury to better observe witnesses. It will certainly enable counsel, I believe, to better be able to address the jury. And in addition it will enable me as the trial judge to keep a discrete eye on the jury as I do in trials to ensure that they are coping with the materials that are put before them and with the length of the trial.
As I said, if the trial proceeded in the Banco Court the jury would be considerably spaced out and none of those advantages would be available.
Secondly, though it may be a matter of debate, it seems to me that the acoustics in the Old High Court 3 are a bit better than in Banco which is a magnificent structure but has a very, very high ceiling.
And thirdly, that if the matter was to proceed in the Banco Court there would be a number of interruptions because the Banco Court is being used for the empanelment of juries and some other purposes. This is a trial in which there will unfortunately, I anticipate, be a number of interruptions and delays in any event, and it is most desirable we do not add to them.
The final matter which needs to be taken into account is the disadvantage of proceeding in Old High Court 3 and the principal one in my view is there will be very limited, if any, capacity for members of the public and particularly families of both Sergeant Silk and Senior Constable Miller on one side and of the accused man on the other side, to be able to attend the court in person. And that is a consideration of real weight, of considerable weight.
These courts have always been open courts in which members of the public and particularly interested people can attend. The court holds that principle very firmly and gives it considerable value in all cases but particularly criminal cases.
However, ultimately, the right of a fair trial to Mr Roberts is paramount and I am not persuaded a fair trial of the case could be provided to him in the Banco Court for the reasons I have outlined. But on balance, I am satisfied that he can receive a fair trial in Old High Court 3.
The court will do its best to accommodate members of the public and particularly the families, the proceedings will be live streamed. And I understand there will be available within the court building itself a room for families so they can attend and watch the live stream and have some contact with counsel and others during the breaks and after court. While that is very much a second best option it is at least some palliation of the disappointment which I expect would follow.
So for those reasons I do not accede to the application that the trial effectively be adjourned or stayed unless and until the traditional configuration of the court can be available. And secondly, I have reached a conclusion that the trial should proceed in Old High Court 3.
Again, as I have said, I have been assured that once the social distancing rules are removed in this court we will move to a court in which the case can be heard in the traditional manner.
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