Director of Public Prosecutions v St Vincent's Care Services
[2021] VCC 302
•23 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02451
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ST VINCENT'S CARE SERVICES PTY LTD (ACN 055 210 378) |
---
JUDGE: | CHAMBERS | |
WHERE HELD: | ON THE PAPERS | |
DATE OF RULING: | 23 March 2021 | |
CASE MAY BE CITED AS: | DPP v ST VINCENT'S CARE SERVICES (Application for trial by judge alone) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 302 | |
RULING
---
Subject:Criminal law – Application for trial by judge alone
Catchwords: Application for trial by judge alone under COVID-19 emergency provisions – interests of justice – the need for the administration of justice to continue – delay – community standards
Legislation Cited: Occupational Health and Safety Act 2004; Criminal Procedure Act 2009; COVID-19 Omnibus (Emergency Measures) Act 2020
Cases Cited:DPP v Combo [2020] VCC 726; DPP v Verducci [2020] VCC 1166
Ruling: Application for trial by judge alone granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Robert O’Neill | MinterEllison |
| For the Respondent | Gary Hevey | Office of Public Prosecutions |
HER HONOUR:
Introduction
1On Indictment No. K10198766, the accused St Vincent’s Care Services Pty Ltd (‘SVCS’), is charged with one offence of contravening s 23(1) of the Occupational Health and Safety Act 2004 (Vic) (‘the OHSA’) on 10 March 2018 where as an employer it failed, so far as was reasonably practicable, to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.
2A trial was originally listed to commence, with an estimated duration of between 5-7 days, on 22 March 2021. However, pursuant to current listing practices introduced in response to the COVID-19 pandemic, the trial date was vacated. To date, no new trial date has been fixed and the matter is presently listed for mention on 17 January 2022.
3This is an application made on behalf of SVCS for the trial to be heard and determined by judge alone pursuant to s 420D of the Criminal Procedure Act 2009 (‘the CPA’). Written submissions in support of the application were filed, together with the application, on 2 March 2021.
4The prosecution filed written submissions in response to the application on 5 March 2021. The prosecution supports the application and submits this is a matter suitable for trial by judge alone. In circumstances where the application is not opposed, it remains for the court to determine whether it is in the interests of justice to grant the application.
Prosecution case
5A prosecution opening for trial filed on 4 December 2020 summarises the allegations against SVCS, the operator of an aged care facility in Werribee.
6Briefly, Mr William Keating became a resident of the aged care facility, at the age of 88 years, in February 2018. Mr Keating was in the habit of walking both within and outside the facility with the aid of a wheeled walking frame. In all other respects, Mr Keating was otherwise healthy. He was not being treated or medicated for any medical ailments and had no sign of dementia.
7Mr Keating was free to come and go from the facility without the need to enter a code into a keypad or any other requirement.
8On Saturday 10 March 2018, Mr Keating was seen by one of the Division 1 Registered Nurses, Ms Munro Westraadt, in the facility’s dining room between 8.15am and 8.30am. Mr Keating asked Ms Westraadt about changing a dressing for him and she said she would do so between 9.30am and 10.30am that day.
9At approximately 8.38am, CCTV footage in the reception area shows Mr Keating at the reception counter with a newspaper. He was there a short while, and then placed the newspaper in the basket of his walker and is seen to exit the front door of the facility. Other CCTV footage of the car park in front of the reception area shows Mr Keating walk along the footpath at various points of the car park. He then moves out of the range of the CCTV cameras.
10At approximately 9.30am that morning, Mr Keating’s daughter, Ms Jennifer Luckhurst, arrived with her husband to visit Mr Keating. Unable to locate him in his room, Ms Luckhurst searched the facility. Ms Westraadt walked past Mr Keating’s room at around 10.15am and saw his door ajar. She assumed Mr Keating was in his room and went to collect the dressing trolley to assist with his earlier request. Ms Westraadt then spoke with Ms Luckhurst who explained that she and her husband were looking for Mr Keating. Ms Westraadt joined them in the search, together with other staff.
11At around 11am, Mr Keating was found approximately 100-200 metres from the facility, where he had fallen into an area that was being excavated by road builders. He had approached the area to have a closer look at a skid-steel loader being used by the road builders. He had fallen about 600mm below the general lie of the land and was only found by waving the newspaper which caught the attention of the searchers. Mr Keating was badly injured and was transported to hospital for treatment.
12Following the incident, Worksafe inspectors attended the facility and as a result of their investigations, issued an Improvement Notice pursuant to s 111 of the OHSA requiring SVCS to implement a procedure to assess whether a resident is capable of leaving the facility and to record and monitor residents leaving and returning to the facility to ensure they have returned as planned.
13On 9 April 2018, SVCS implemented a step-by-step procedure entitled ‘Resident Leave from Facility SVCS Werribee’.
14The prosecution allege that as an employer conducting the undertaking of operating an aged care facility, SVCS failed to have an appropriate system in place to monitor residents leaving the facility unaccompanied or unsupervised for a short period. By failing to introduce a procedure such as that introduced on 9 April 2018, the prosecution allege that SVCS exposed persons other than employees, namely the residents including Mr Keating, to risk of injury of death. The prosecution further allege that the introduction of such a procedure was reasonably practicable to ensure that the residents were not exposed to such risk.
15A defence response was filed on behalf of SVCS dated 14 December 2020. The primary issues in the trial will be whether the risk alleged arose from the conduct of SVCS’ undertaking and further, whether the provision of a sign-out book would reduce or eliminate any risk to the health and safety of residents. Additionally, at issue is whether the provision of a sign-out book was a reasonably practicable measure. The defence submit that this process provides, at best, minimal protection whilst imposing on the privacy, dignity and freedom of the residents, and that appropriate security arrangements were in place for ‘at-risk’ residents: see s 20(2)(d) of the OHS Act.
16The only pre-trial issue is likely to be an application to exclude the evidence of the provision of the sign-out book in response to the Improvement Notice issued by the Worksafe inspector, and the evidence of one witness, Amelia Macknay, on the basis they are not relevant to a fact in issue in the proceedings.
Legislative framework
17On 25 April 2020 the COVID-19 Omnibus (Emergency Measures) Act 2020 commenced operation. That Act amended the CPA to, among other matters, provide for trial by judge alone in certain circumstances. Relevantly, s 420D of the CPA provides as follows:
420D Court may order trial by judge alone
(1)At any time except during the 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)of 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.
18As observed by Chief Judge Kidd in DPP v Combo[1], s 420 of the CPA does not create a presumption in favour of jury trials but rather, the default position is that there will be a jury trial unless and until the conditions of s 420D(1)(a)-(c) are met and the court’s discretion is enlivened pursuant to s 420D(1)(d), that is, it is in the interests of justice to make an order for a judge alone trial.
[1] [2020] VCC 726 (Combo)
Consideration
19In this application, both the accused company and the prosecution agree that the matter is appropriate for a trial by judge alone. I am satisfied that the provisions of s 420D(1)(a), (b) and (c) have been met. The remaining issue is whether it is in the interests of justice to make the order.
20In DPP v Verducci[2], Judge Gamble adopted a broad interpretation of the ‘interests of justice’ provision, which I respectfully adopt, stating:
It is a broad concept and includes not just the interests of the parties, but larger questions of legal principle, the public interest and policy considerations. It is in the public interest that the integrity and proper functioning of the criminal justice system with the courts is maintained and that accused persons receive a fair trial according to law. The determination of where the interests of justice lie involves a balancing exercise by reference to the particular facts and circumstances of the case under consideration. There will often be multiple and sometimes competing interests to be considered, none of which are individually determinative of the issue.[3]
[2][2020] VCC 1166 (Verducci)
[3]ibid at [37]
21On the basis of the material filed in support of the application, I am satisfied that it is in the interests of justice to make an order that the trial be heard by a judge alone for the following reasons.
Delay
22This trial concerns a contravention of the OHSA alleged to have been committed by SVCS in the operation of its aged care facility three years’ ago. Whilst jury trials in the County Court were initially suspended in the wake of the pandemic, they have now resumed, although in a restricted way. Accordingly, the backlog in trials is only expected to increase over the course of this year. This matter has a mention date set for 17 January 2022. At best estimates, a jury trial would not take place until some time in 2022 or possibly 2023, noting that priority cases may well be listed in advance of this trial.
23Delay is a significant consideration in this matter. As Chief Judge Kidd stated in Combo:
In truth, the balancing exercise here does not involve merely weighing the benefits of a jury trial against those of a trial by judge alone for the case in question. Rather, it concerns weighing the advantages of a judge alone trial no against those of a significantly delayed trial by jury (with all the disadvantages this delay entails).
It seems to me that within the context of this legislation, the advantages of continuing with the business of the court, and mitigating the serious issues of delay, are powerful factors in favour of ordering a trial by judge alone.[4]
[4]DPP v Combo [2020] VCC 726 [61]-[62].
Issues in dispute narrowly confined
24Both parties submit that the factual basis upon which the charge is founded are not in dispute and that if the matter proceeds as a trial by judge alone it is likely be completed in 1-2 days by tendering the witness statements and without the need for cross-examination. A judge alone trial would obviate the need for a potential 5-7 day trial before a jury.
25Both parties agree that the issues in dispute are narrowly confined and are limited to the three discrete matters raised in the defence response. I accept this submission.
26A consideration of whether risks to the health and safety of residents arose from the conduct of the aged care facility is a mixed question of fact and law, and one well-suited to determination by judge alone.
Community standards
27A consideration of whether SVCS failed, as far as was reasonably practicable, to ensure that residents were not exposed to an alleged risk to health and safety is of a different character. In this case, the prosecution argue the issues in dispute do not require community input. In my view, the application of community standards does arise in relation to the issue of whether a measure is ‘reasonably practicable’ to address an identified risk. In this case, the defence dispute that the provision of a sign out book would reduce or eliminate the alleged risk to residents and whether such a measure is reasonably practicable. Here, the argument is not whether the control is ‘available’ but whether it is ‘suitable’[5]. On this issue, the defence argues that the control represents an inappropriate interference with the basic rights and dignity of residents whilst having a minimal impact in reducing risk and is therefore not ‘reasonably practicable’. A determination of this issue is a matter where the application of community standards arises.
[5]See s 20(2)(d) of the OHSA
28On balance, I prefer the analysis in the defence submissions that such issues are at least equally suitable for determination by a judge as by a jury. In this case, any application of community standards is not of such importance as to overcome the cogent reasons tending in favour of a trial by judge alone. There is also force in the submission of the defence that the legal principles to be applied under the OHSA are complex and are also, to some extent, counterfactual, in that they ask a court to determine whether, if a particular action had been taken it would have reduced or eliminated the alleged risk. This counter-factual reasoning is a matter that makes a case such as this well-suited to a trial by judge alone.
29Accordingly, for the reasons given, I grant the application for the trial to be heard and determined by a judge alone. I will make further case management orders or directions upon hearing from the parties.
0