Director of Public Prosecutions v SA, Pm, SY and QDM

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0096

DIRECTOR OF PUBLIC PROSECUTIONS

SA, PM, SY and QDM

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JUDGES:	PRIEST, T FORREST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2023
DATE OF JUDGMENT:	13 June 2023
DATE OF REASONS:	16 June 2023
ORIGINATING PROCESS:	Case stated, Incerti J, Supreme Court of Victoria, 30 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 145

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CRIMINAL LAW – Case stated – Questions of law reserved for determination by Court of Appeal – Murder – Order for judge alone trial under s 420E of Criminal Procedure Act 2009 – Whether consent by accused to judge alone trial may be withdrawn – Whether court may vary or revoke order for judge alone trial – Whether filing of fresh indictment commences new proceeding – Consent cannot be withdrawn – Order cannot be revoked or varied – Fresh indictment does not commence new proceeding – Questions answered accordingly.

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Counsel
Crown:		Ms E Ruddle KC with Ms K Churchill and Mr J Manning
For SY:		Ms A Cannon
For QDM:		Mr J Saunders
For PM:		Ms S Lacy and Ms D Price
For SA:		Mr J Desmond and Ms M Brown
Solicitors
Crown:	Ms A Hogan, Solicitor for Public Prosecutions
For SY:	Chester Metcalfe & Co
For QDM:	Ajak & Associates
For PM:	Stary Norton Halphen
For SA:	KPT Legal

PRIEST JA
T FORREST JA
TAYLOR JA:

Introduction

An indictment filed in the Supreme Court charged eight accused — ‘JA’, ‘SA’, ‘AM’, ‘PM’, ‘DM’, ‘QDM’, ‘MM’ and ‘SY’ — with the murder of ‘CD’ (‘the first indictment’). All eight are children.[1]
[1]By virtue of s 3(1) of the Children, Youth and Families Act 2005, child means ‘in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court’.
Between 7 and 10 October 2022, each of the eight accused filed an application under s 420E of the Criminal Procedure Act 2009 (‘CPA’) seeking trial by judge alone. The prosecution did not oppose the applications.
On 11 October 2022, being satisfied that each accused had consented to its making; that the accused has obtained legal advice on whether to give that consent (including legal advice on its effect); and that it was in the interests of justice to make it; Hollingworth J made an order under s 420E(1) that ‘the charge of murder alleged against each of the accused on indictment C2215271 is to be heard and determined by judge alone’. (She also made an order fixing the trial for under a week’s time, on 19 June 2023). Hollingworth J authenticated the order by signing it.[2]
[2]Rule 1.13(2) of the Supreme Court (Criminal Procedure) Rules 2017 provides that ‘a judgment or order of the Court is authenticated when the judgment or order, having been drawn up, is signed by a Judge of the Court, an Associate Judge or a judicial registrar, as the case requires, or sealed by the Prothonotary’.
Incerti J was subsequently appointed as the trial judge. During a directions hearing on 10 May 2023, she was informed by prosecuting counsel that the case against MM had resolved. Shortly thereafter, the cases against JA, AM and DM also resolved, and four new indictments were filed in the cases of those four accused: N10577074 and N10577915, respectively charging AM, aged 15, and DM, aged 16, with murder at common law; N10577121, charging JA, aged 17, with manslaughter; and N11707956, charging MM, aged 18, with intentionally causing serious injury in circumstances of gross violence. Between 17 and 22 May 2023, those four youths pleaded guilty on arraignment before Hollingworth J, their plea hearings being fixed for a date in August. They are not anticipated to take any part in the judge alone trial fixed before Incerti J.
In the interim, the solicitors for SA had briefed new counsel, who, by an email dated 24 May 2023, informed the trial judge’s chambers, and the legal practitioners for SY, QDM and PM, that SA had ‘withdrawn consent’ for trial by judge alone and ‘now pursues an application for trial by jury’.
At a directions hearing conducted by the trial judge on 26 May 2023, SA’s new counsel confirmed that SA no longer consented to trial by judge alone and was seeking trial by jury.
That same day, 26 May 2023, the prosecution filed a new indictment, C2215271.1 (‘the new indictment’). As did the first indictment, the new indictment charged SY, QDM, PM and SA with CD’s murder. The prosecution also filed an amended summary of prosecution opening.[3]
[3]See CPA, s 182.
In light of these developments, on 30 May 2023 the trial judge reserved four questions of law for determination by the Court of Appeal pursuant to s 302 of the CPA (‘the case stated’). The four questions were:
1Notwithstanding the order of the Court dated 11 October 2022 that:
‘[u]nder s 420E(1) of the [Criminal Procedure Act 2009] the charge of murder alleged against each accused on indictment C2215271 is to be heard and determined by judge alone’,
does the filing of indictment C2215271.1 on 26 May 2023 have the effect that the trial of the accused in that indictment must now proceed by trial by jury, and not trial by judge alone as previously ordered by the Court on 11 October 2022?
2If no to question 1, where an accused has withdrawn their consent for the trial to proceed by judge alone, can an order under s 420E of the Criminal Procedure Act 2009 be varied or revoked by:
(a) the trial judge; or
(b) the judge who made the order; or
(c) the Court of Appeal?

3If no to question 1, can an order under s 420E of the Criminal Procedure Act 2009 be varied or revoked, on the basis of evidence that at the time the order was made an accused had received inadequate legal advice on whether to give consent, by:
(a) the trial judge; or
(b) the judge who made the order; or
(c) the Court of Appeal?
4If yes to question 2 and/or 3, does revocation or variation of the 11 October 2022 order require the trial for all co-accused to proceed by trial by jury?

For the reasons that follow, we would answer the questions as follows:
1No.
2(a) No.
(b)No.
(c)No, unless on appeal under s 420I of the Criminal Procedure Act 2009.
3(a) No.
(b)No.
(c)No, unless on appeal under s 420I of the Criminal Procedure Act 2009.
4Unnecessary to answer.

The key legislative provisions

During their period of operation, the legislative provisions concerning trial by judge alone (ss 420A to 420ZL) were to be found in (now repealed) Chapter 9 of the CPA.[4]
[4]Criminal trial by judge alone has been available in this State for two relatively short periods during the COVID-19 pandemic: first, between 21 October 2020 and 21 April 2021; and, secondly, between 30 March 2022 and 30 March 2023. See, respectively, s 32 of the COVID-19Omnibus (Emergency Measures) Act 2020, which commenced on 21 October 2020 and was repealed six months later, on 21 April 2021; and s 3 of the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022, which commenced on 30 March 2022 and was repealed on 30 March 2023.
Section 420E(1) of the CPA permitted a court to make an order for trial by judge alone if four criteria were met: first, each charge was for an offence against the law of Victoria; secondly, each accused consented to the making of the order; thirdly, the court was satisfied that the accused had received legal advice on whether to consent; and, fourthly, the court considered that it was in the interests of justice to make the order. It provided:
420E 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^[[5]] alone, without a jury, if—
[5]By s 3(1) of the CPA —
trial judge means the judge of the Trial Division of the Supreme Court … before whom an accused is tried; … .
(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.
Significantly, nothing in s 420E — nor any other provision of the CPA — permitted an accused to withdraw consent for trial by judge alone once an order had been made under the section.
Other provisions of the CPA did, however, permit challenge to a decision under s 420E either to grant or refuse an order for trial by judge alone. Hence, s 420I provided that a party to a proceeding ‘in which the court makes a decision regarding trial by judge alone may appeal to the Court of Appeal against that decision if the Court of Appeal gives the party leave to appeal’; and s 420J(1) provided that ‘the Court of Appeal may give leave to appeal against a decision regarding trial by judge alone only if the court is satisfied that it is in the interests of justice to do so’.[6] SA has not, however, sought to invoke s 420I.
[6]See also ss 420H, 420K, 420L, 420M and 420N. Section 420S provided that a decision by a trial judge to make, or not to make, an order under section 420E is not an interlocutory decision for the purposes of the Act.
Moreover, although an order under s 420E could only be made whilst a ‘pandemic declaration’ was in force[7] — as was the case when Hollingworth J made the order[8] — s 420ZJ made it clear that an application made for an order under s 420E was not affected by the cessation of a pandemic declaration; and s 420ZK provided that the cessation of a pandemic declaration did not affect an order made under s 420E.
[7]See ss 420A, 420B and 420E(2).
[8]The relevant pandemic declaration ceased from 11.59 pm on Wednesday, 12 October 2023. As mentioned (at [3]), Hollingworth J made the order under s 420E the previous day, on Tuesday, 11 October 2022.
Subsection (4) of s 420ZK made it plain that the cessation of a pandemic declaration did not affect an order made under s 420E irrespective of whether or not the trial to which the order related had commenced before the pandemic declaration ceased to be in force. Section 420ZK was in the following terms:
420ZK Order for trial by judge alone not affected by cessation of pandemic declaration
(1) This section applies if—
(a) an order under section 420E is made while a pandemic declaration is in force; and
(b) the pandemic declaration ceases to be in force before judgment is delivered in the trial in respect of which the order was made.
(2) The pandemic declaration ceasing to be in force does not affect the order under section 420E.
(3) Without limiting subsection (2), the trial to which the order under section 420E relates may continue to be held by judge alone, without a jury, after the pandemic declaration ceases to be in force.
(4) Subsections (2) and (3) apply in relation to an order under section 420E whether or not the trial to which the order relates had commenced before the pandemic declaration ceased to be in force.
Section 5 of the CPA provides that, among other ways, a ‘criminal proceeding’ is commenced ‘by filing a charge-sheet with a registrar of the Magistrates’ Court’. And in the case of criminal proceedings against children, s 528(2)(b) of the Children, Youth and Families Act 2005 (‘CYFA’) provides in effect that the CPA provisions concerning proceedings in the Magistrates’ Court ‘apply with any necessary modifications to the Children’s Court and proceedings in the Court and … to the issue of process in the same manner and to the same extent as they apply to the Magistrates’ Court, the proceedings of that Court and the issue of process’.
Since, at the time that they were charged, all eight accused were children,[9] committal proceedings against them were conducted in the Children’s Court; and, on 6 October 2022, a magistrate in that court directed that they be tried for murder in the Supreme Court.[10]
[9]See fn [1] above.
[10]See CYFA, s 516(1)(c)(1).
Section 159 of the CPA provides that ‘the DPP or a Crown Prosecutor in the name of the DPP may file an indictment’. Significantly, s 162 makes it plain that the filing of another indictment against the accused does not commence a new criminal proceeding:
162 Filing of any other indictment does not commence criminal proceeding
The filing of an indictment other than a direct indictment does not commence a new criminal proceeding against the accused.
Similarly, the filing of a ‘fresh indictment’ does not commence a new criminal proceeding against an accused. Thus, s 164 provides:
164 Filing of fresh indictment
(1) In this section—
fresh indictment means an indictment which includes a charge for the same offence as an offence charged in an indictment previously filed in court against that accused or a related offence.
(2) Nothing in section 163 prevents the filing of a fresh indictment.
(3) The filing of a fresh indictment does not commence a new criminal proceeding.
(4) On the filing of a fresh indictment against an accused, proceedings in relation to a charge for the same offence or a related offence in an indictment previously filed in court against that accused are discontinued.
Importantly, s 420T provided:
420T Commencement of trial
(1) A trial by judge alone commences when the accused pleads not guilty on arraignment before the trial judge.
Note
Section 210 sets out when a trial involving a jury commences.
(2) Section 217 does not apply to a trial by judge alone.^[[11]]

Submissions of the parties

[11]Section 210 provides that a jury trial commences when the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with s 217; and s 217 requires the accused who pleads not guilty to be arraigned in the presence of the jury panel, and for a jury for the trial to be empanelled from that jury panel.

The Director of Public Prosecutions

Counsel for the Director submitted that, on a plain and literal meaning of the text of the relevant legislation, an order under s 420E attaches only to a charge or charges in an indictment, and not the indictment itself. Hence, the filing of the new indictment did not impinge upon the order for trial by judge alone.
The Director’s counsel submitted that, once an order is validly made under s 420E, ‘the subsequent withdrawal of consent does not render the order invalid or improper’. Unlike statutory provisions in other jurisdictions regulating trial by judge alone, the Victorian provisions are ‘silent on the ability to proceed to trial by jury after an order under section 420E has been made’. Counsel submitted, however, that s 337(2) of the CPA is broad enough to include a power to revoke or vary a power or order made under s 420E.[12] Courts should be hesitant to compel an accused to proceed to trial by judge alone against his or her wishes. Given the process and considerations in section 420E, however, ‘it should not be that in every case where an accused demands it, an order should be so varied or revoked’. The decision to revoke or vary an order of the Court ‘must be exercised judicially, and with reference to all the material facts’ (including the adequacy — or inadequacy — of legal advice).
[12]Counsel also referred to s 204, which provides:
204 Pre-trial orders and other decisions generally binding on trial judge
An order or other decision made at a directions hearing or other pre-trial hearing by a judge who is not the trial judge is binding on the trial judge unless the trial judge considers that it would not be in the interests of justice for the order or other decision to be binding.
Counsel submitted that if the order of 11 October 2022 is revoked or varied to remove at least one accused, then the trial for all accused on the new indictment must proceed to a trial by jury. In the event that a separate trial is ordered for any accused, a fresh indictment would not affect the validity of the order of 11 October 2022 (as originally made or as varied by the removal of one or more accused).

PM

Counsel for PM submitted that the filing of the new indictment does not have the effect that the trial of the accused must be heard by a jury, since an order under s 420E is made with respect to a charge, not an indictment. The court has ‘inherent jurisdiction’ to vary or revoke an order under s 420E ‘if it is in the interests of justice to do so’. Any revocation or variation may be made by a judge of the Trial Division or Court of Appeal. Evidence that an accused had received inadequate legal advice could form the basis of an order to vary or revoke an order under s 420E (if it were in the interests of justice to do so).

QDM and SY

Jointly, counsel for QDM and SY submitted in writing that the filing of a new indictment did not commence a new criminal proceeding against their clients, so that the order made on 11 October 2022 for trial by judge alone remains ‘valid and operating’. In the absence of a specific power in Chapter 9 of the CPA to vary or revoke an order under s 420E, the court has power to make such an order in the exercise of its inherent jurisdiction if in the interests of justice to do so. Should the order under s 420E be varied or revoked with respect to one accused, the order would not be invalidated in the cases of the remaining accused. In oral submissions, counsel relied on s 14(2)(e) of the Interpretation of Legislation Act 1984 and s 461 of the CPA in order to submit that their clients had an accrued right under s 420E to be tried by judge alone.

SA

Counsel submitted that SA — who has not been arraigned on either the first or the new indictment — does not consent to trial by judge alone on the new indictment. Since he has not been arraigned, counsel submitted, the trial against him had not commenced. Absent SA having been arraigned and the trial against him having commenced, his consent to trial by judge alone ‘is of no effect’. As a result, leave to withdraw his consent is not required. Alternatively, counsel contended that the court has power to vary or revoke the order in the exercise of inherent jurisdiction, or pursuant to ss 181, 204 or 337(2), or s 420E itself. The result is that SA’s trial must now proceed by jury.

Discussion

It is clear that a criminal proceeding was commenced against each of the eight accused when charge-sheets were filed in the Children’s Court charging them with DC’s murder.[13]
[13]See [16–[17] above.
Following their committal for trial, the filing of the first indictment charging them with DC’s murder did ‘not commence a new criminal proceeding against the accused’. So much is made plain by s 162 of the CPA.[14]
[14]See [18] above.
Thereafter, the filing of four individual fresh indictments in the cases of MM, JA, AM and DM, did not commence a new criminal proceeding against them. Once more, s 162 makes that plain (reinforced, in the cases of AM and DM, by s 164(3) of the CPA).

Nor did the filing of the new indictment, charging SY, QDM, PM and SA with CD’s murder, commence a new criminal proceeding against them. Since the new indictment included ‘a charge for the same offence as an offence charged in an indictment previously filed in court against that accused’ — CD’s murder — s 164(3) makes it abundantly clear that its filing did not commence a new criminal proceeding against them.[15]
[15]See [19] above.
The case stated does not disclose whether SY, QDM, PM and SA were arraigned either on the first indictment or the new indictment (or at all). In oral argument, however, there was no dispute that none of the eight accused were arraigned before Hollingworth J on the first indictment on a charge of murder, or that SY, QDM, PM and SA are yet to be arraigned on the new indictment before Incerti J. Hence, by virtue of s 420T, the trial on the new indictment has not commenced. That fact, however, has no relevance to the answers to be given to the questions reserved for this Court’s determination.
Section 420E permitted ‘the court’ to order that ‘one or more charges’ to be tried by the trial judge alone’. In this case, ‘the court’ was the Supreme Court constituted by a Judge of the Court, Hollingworth J; the charge of murdering DC was the ‘one or more charges’ that the court ordered to be tried by ‘the trial judge alone’; and the trial judge — the judge of the Trial Division of the Supreme Court before whom an accused is tried[16] — is Incerti J.
[16]See fn 5 above.
Importantly, the authenticated order[17] made by Hollingworth J on 11 October 2022 on its face reveals that she was satisfied that the statutory criteria relevant to the making of an order under s 420E had been met. Thus, the order contains the following:
As required under s 420E(1) of the Act, I am satisfied that:
i. The charges are for an offence under the law of Victoria;
ii. Each accused consents to the making of this order;
iii. Each accused has obtained legal advice on whether to give that consent, including legal advice on the effect of the order; and
iv. It is in the interests of justice to make the order.
[17]See fn 2 above.
Having been made by a superior court of record, the order made by Hollingworth J under s 420E must be regarded as valid unless and until set aside.[18] It was made following her Honour’s satisfaction that the statutory criteria in s 420E — including consent of the accused given after legal advice whether to give it — had been met.[19] Plainly, the order is not invested with some provisional quality, permitting it to be recalled or rescinded at whim. Nor does it depend for its efficacy upon the continuing consent of SA or the other accused.
[18]Cameron v Cole (1944) 68 CLR 571, 590, 598, 606–607; DMW v CGW (1982) 151 CLR 491, 501–505, 507; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, 193–194, 222–223; R v Gray; Ex parte Marsh (1985) 157 CLR 351, 374–375; Re Macks; Ex parte Saint (2000) 204 CLR 158, 177–178 [19]–[23], 183–187 [46]–[57], 235–237 [214]–[220], 247–249 [253]–[257], 278–279 [342]–[344]; NSW v Kable (2013) 252 CLR 118, 133 [32]; Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd (2017) 118 ACSR 592, 606 [51].
[19]As to the importance of the accused’s consent to ‘the interests of justice’, see Hooper and Anor v DPP (2021) 288 A Crim R 211, 2223 [44], 231 [91] (Kyrou, Kaye and Emerton JJA). See also McInnes v DPP [2022] VSCA 188, [33], [64]–[65] (Priest and Beach JJA).
Hollingworth J was satisfied that SA had given his consent to trial by judge alone. She was also satisfied that SA had given that consent having obtained legal advice on whether to give that consent, including as to the effect of the order. Now, however, through his counsel SA has indicated to the trial judge that he wishes to ‘withdraw’ that consent. His counsel contends that he should be permitted to do so.
In our opinion, however, once an accused has given consent to trial by judge alone without a jury — that consent having been given after having obtained the kind of legal advice contemplated by s 420E(1)(c) — and the court has made an order that a charge (or charges) be tried by judge alone, the accused is incapable of withdrawing or rescinding that consent.[20]
[20]Compare the situation of an accused person’s withdrawal of consent to summary jurisdiction in the case of an indictable offence. See Treloar v Richardson [2020] VSC 479 (Niall JA); Williams v Hand (2014) 245 A Crim R 275; Clayton v Hall (2008) 184 A Crim R 440 (Kaye J).
Presumably, had the legislature intended that, once given, the consent of an accused to trial by judge alone could be withdrawn; or that, once made, the continuing efficacy of an order for trial by judge alone depended on the ongoing consent of the accused, that intention would have been reflected — either directly or by necessary implication — in the relevant legislative provisions. It is not. Nothing in the (now repealed) provisions of Chapter 9 of the CPA demonstrates a legislative intention that, once made, the continuing operation of an order under s 420E is dependent upon the ongoing consent of the accused.
In that respect, the relevant provisions of the CPA concerning trial by judge alone might be compared with those in other jurisdictions dealing with similar subject-matter. Thus, in New South Wales, s 132 of the Criminal Procedure Act 1986 (NSW) permits a court to make an order that an accused person be tried by a judge alone if ‘both the accused person and the prosecutor agree’; and, among other things, the court ‘is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner’.[21] Of some significance, however, unlike the Victorian provisions, the NSW legislation permits the accused (or prosecutor), after an application for a judge alone trial has been made, subsequently to apply for trial by jury. Hence, s 132A(3) of the Act provides:
(3) An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person’s trial, subsequently apply for a trial by a jury.
[21]See also Juries Act 1927 (SA), s 7; Criminal Procedure Act 2004 (WA), s 118; Criminal Code 1899 (Qld), s 615; Supreme Court Act 1933 (ACT), s 68B.
The applicable legislation in the Australian Capital Territory permits an accused person in defined circumstances to elect to be tried by judge alone, but also permits the accused person to withdraw that election before arraignment. Hence, ss 68B(2) and (3) of the Supreme Court Act 1933 (ACT) provide:
(2) An accused person who elects to be tried by a judge alone may, at any time before the person is arraigned, elect to be tried by a jury.
(3) If an accused person makes and then withdraws an election, the person may not make another election.
Once more, however, there was no equivalent to the ACT provisions set out above to be found in Chapter 9 of the Victorian legislation (or elsewhere).
Further, we note that in NSW, where, as we have said, the accused or prosecutor who has applied for a judge alone trial may subsequently make application for trial by jury, the courts have set their face against ‘judge shopping’.[22] And we note also that in Western Australia, s 118(9) of the Criminal Procedure Act 2004 (WA) specifically provides that the court cannot ‘cancel’ an order made for trial by judge alone ‘after the identity of the trial judge is known to the parties’. This provision appears specifically to be aimed at ‘judge shopping’.
[22]See R v Perry (1993) 29 NSWLR 589, 594; R v Coles (1993) 31 NSWLR 550, 552–553; R v Simmons;R v Moore (No 4) (2015) 249 A Crim R 120, 126–7 [20]–[29]; Alameddine v R [2022] NSWCCA 219.
As we have mentioned, the case stated suggests that SA now seeks retrospectively to withdraw his consent to trial by judge alone, and, in effect, seeks to have the order for trial by judge alone set aside. But SA is yet to establish any basis upon which Hollingworth J might recall her order, or another judge of the court might set it aside. Indeed, beyond floating the idea that SA might have received inadequate advice before providing his consent to trial by judge alone, no distinct error infecting the validity of the order has been identified.
In our view, each provision pointed to by the parties as supporting the court’s power to set aside the order – ss 181, 204 and 337(2) — are essentially procedural in nature. Thus, s 181(1) permits a court at a directions hearing to ‘make or vary any direction or order, or require a party to do anything that the court considers necessary, for the fair and efficient conduct of the proceeding’. By no torturing of the language of the provision could an order revoking an order under s 420E be seen as an order ‘for the fair and efficient conduct of the proceeding’.
Similarly, s 204 — which makes an order made at a directions hearing generally binding on the trial judge — is concerned with procedural matters relating to a trial. An order under s 420E is not such an order.
Section 337 is broadly expressed. Particular reliance was placed by counsel for the Director on subsection (2). The section provides:
337 Court may act on application or on own motion
(1) Unless the context otherwise requires, a power or discretion conferred on a court by or under this Act may be exercised by the court on the application of a party or on its own motion.
(2) Unless the context otherwise requires, a power or discretion referred to in subsection (1) includes a power or discretion to revoke or vary a decision or order made in the exercise of that power or discretion.
Trial by jury of a serious offence is a fundamental right that has existed for centuries. In the absence of an order under s 420E, both the accused and prosecution had a right to trial by jury. Since, while it operated, s 420E was concerned with the jurisdiction of the court to order that a charge (or charges) for a serious criminal offence (or offences) be tried by judge alone without a jury, it was concerned with the alteration of a fundamental right. Indeed, by making the application under s 420E, the accused sought to relinquish their fundamental right to a trial by jury. Properly understood, however, s 337(2) is purely procedural. It is not concerned with substantive rights, but is confined to the kinds of procedural matters with which Part 5.5 of the CPA is concerned. Hence, it is found in a suite of provisions dealing with procedural aspects of criminal proceedings: Part 8.1 (headed ‘Conduct of proceeding’) of Chapter 8 (headed ‘General’). The powers to vary or revoke an order provided for in subsection (2) must therefore be read as being confined to decisions or orders which are essentially procedural in nature. In our view, ‘the context otherwise requires’ a conclusion that an order can be varied or revoked by the judge who made the order or another judge.
Various counsel submitted that the court had inherent power to vary or revoke the order for trial by judge alone. As to that, it is clear that the court has inherent jurisdiction to correct an order arising from an accidental slip or omission. But the court cannot vary or revoke an order which is the product of a deliberate decision, as was the order made by Hollingworth J. So much is clear from Burrell,[23] a case in which the Court of Criminal Appeal of New South Wales published reasons for decision and pronounced orders dismissing the appellant’s appeals against conviction and sentence. After those orders had been formally recorded, the Court discovered that its reasons contained substantial factual errors. The Court then held that it had power to reopen the appeal, and, after consideration, purported to order that its original orders should be ‘confirmed’. Holding that the Court of Criminal Appeal had no power to reopen an appeal once judgment had been delivered and orders reflecting judgment had been formally entered, the plurality (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ), when discussing fundamental principles concerning the finality of litigation, said:[24]
As was said in D’Orta-Ekenaike v Victoria Legal Aid:[25] ‘A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.’ That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud[26] and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.
And also:[27]
Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order[28] provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.
[23]Burrell v The Queen (2008) 238 CLR 218 (‘Burrell’).
[24]Ibid, 223 [15].
[25](2005) 223 CLR 1 at 17 [34].
[26]DJL v Central Authority (2000) 201 CLR 226 at 244-245 [36]–[37].
[27]Burrell, 224–5 [20]–[21].
[28]L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595.
There is nothing in the case stated from which it could be concluded that the order for trial by judge alone was procured by fraud. At its highest, SA’s submission is that SA may not have obtained adequate advice. In our opinion, that would ‘not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded’ by Hollingworth J.
That is not to say that SA is without a possible remedy. As previously mentioned,[29] s 420I provided that a party to a proceeding in which the court makes a decision regarding trial by judge alone may appeal to the Court of Appeal against that decision if the Court of Appeal gives the party leave to appeal. Presumably, if SA’s legal practitioners were of the view that the order made by Hollingworth J was attended by appealable error they would have sought the leave of this Court to appeal against the order pursuant to s 420I.
[29]At [13] above.
In summary, our conclusions are:
· First, the filing of the new indictment on 26 May 2023 did not commence a new criminal proceeding against SY, QDM, PM and SA, so that the order for trial by judge alone made on 11 October 2022 remained unaffected by that filing.
· Secondly, an accused person’s purported withdrawal of consent is of no effect. Once an order is made under s 420E, it does not depend for its continuing validity upon some form of ongoing consent by the accused. The order is valid unless and until set aside.
· Thirdly, there is presently nothing before the trial judge sufficient to satisfy the limited conditions in which the order of a superior court of record might be set aside. Thus, for example, there is no suggestion that the order was procured by fraud. At best, the idea has been floated that SA may have been given inadequate advice, bearing upon the issue of consent. That would not, however, permit the order for trial by judge alone to be reopened by the court, whether by the judge who made the order or the trial judge.
· Fourthly, if the order for trial by judge alone is to be set aside, it can only be done by the Court of Appeal under s 420M, upon appeal under s 420I.
These are the reasons for the answers to the questions reserved for this Court’s determination.[30]
[30]See [9] above.

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[2023] VSCA 145

13 June 2023