Director of Public Prosecutions v Tiba (Judge alone trial ruling)

[2020] VSC 600

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2018 0125

DIRECTOR OF PUBLIC PROSECUTIONS

v 

OSMAN TIBA

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2020
DATE OF RULING:	21 September 2020
CASE MAY BE CITED AS:	DPP v Tiba (Judge alone trial ruling)
MEDIUM NEUTRAL CITATION:	[2020] VSC 600

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CRIMINAL LAW – Practice and procedure – Application for trial by judge alone under COVID-19 emergency provisions – Consent by both parties – Interests of justice – Delay – Case not involving the application of community standards – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Gibson SC Ms D Guesdon	Ms Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Mr P Dunn QC Ms A Sharpley	Emma Turnbull Lawyers

HER HONOUR:

1. In May 2018, Osman Tiba and his brother, Omar Tiba, were committed to stand trial for charges arising out of the shooting of Mohammed Oueida, on 17 April 2017, near a mosque in Coburg.  The prosecution case is that Omar fired three to six shots at the victim, from a car that Osman was driving.  They are alleged to both be liable for the shooting, on a complicity basis. 

1. In early 2019, Omar pleaded guilty to a charge of causing serious injury intentionally in circumstances of gross violence.  He subsequently sought, unsuccessfully, to withdraw his plea.  His plea hearing has been adjourned until after Osman’s trial.

1. Osman is currently charged with causing serious injury intentionally (alternatively, recklessly) in circumstances of gross violence, and with two counts of reckless conduct endangering life.  One of Omar’s friends, Nohe Mourad, was also committed to stand trial, for the offence of assisting an offender, for her participation in subsequent events. 

1. The charges against Osman and Ms Mourad have been listed for trial on 6 occasions, in circumstances that I will describe shortly when I consider the question of delay.  They were most recently listed for trial on 28 September 2020, on an estimated duration of three weeks. 

1. At a directions hearing on 17 September 2020, I was informed that the prosecution and Ms Mourad had reached agreement for the resolution of her matter.  Ms Mourad will plead guilty to a summary charge of making a false report, after the prosecution files such a charge in the Magistrates’ Court.  After she has pleaded guilty, the Supreme Court charge against her will be withdrawn, and a new indictment will be filed against Osman.  That will leave Osman as the only one of the three original co-accused to face trial.

1. By oral application made at that directions hearing, Osman applied for a trial by judge alone, under s 420D of the Criminal Procedure Act 2009 (‘the CPA’). The prosecution supported the application. Even where such an application is unopposed, it still remains for the court to determine whether it is in the interests of justice to order a trial by judge alone. Accordingly, I heard oral submissions from both sides in relation to the application. At the conclusion of the hearing, I announced that I would be ordering a trial by judge alone, for reasons to be published; these are those reasons.

1. The option of holding a criminal trial by judge alone arose in Victoria as a result of Parliament’s statutory response to the COVID-19 pandemic. The legislative framework put in place by Parliament was set out and discussed at length by Chief Judge Kidd, in the recent decision in DPP v Combo[1].  I respectfully agree with and adopt his Honour’s very helpful analysis.

   [1][2020] VCC 726, especially at [32]-[66].

1. There is no doubt that the first three requirements of s 420D are satisfied in this case, namely:

(a)       Each charge is for an offence under the law of Victoria;

(b)      The only remaining accused, Osman, consents to the making of the order; and

(c)       I am satisfied that Osman has obtained legal advice on whether to give that consent, including legal advice on the effect of the order.

1. The fourth requirement in s 420D is that the court must consider that it is in the ‘interests of justice’ to make the order for trial by judge alone. As Chief Judge Kidd discussed in Combo,[2] the expression ‘interests of justice’ is broad, and includes not only the interests of the parties, but also larger questions of public interest and policy considerations.  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.

   [2]Ibid, especially at [48].

Timing considerations

1. Jury trials were suspended in the Supreme Court in March 2020, as a result of the COVID-19 pandemic.  In June 2020, the court announced its intention to resume jury trials on 20 July 2020.  Unfortunately, the resumption date had to be delayed, due to Melbourne being placed back in lockdown in July.    

1. This trial was listed to commence on 28 September.  Given the extension to the current lockdown, it is clear that jury trials will not have resumed by then.  Whether or not jury trials will be able to resume before the end of 2020 will depend on rates of infection, and other matters outside the court’s control.  If they are not able to do so, then this trial would have to be adjourned off until the middle of 2021, were it to proceed with a jury.  Such further delay would be very undesirable, for a number of reasons. 

1. As mentioned earlier, this matter has a very unfortunate procedural history.  The first trial began on 1 April 2019.  The trial judge discharged the jury on the second day, after one of the main prosecution witnesses gave a significant non-responsive answer to a question.  The second trial started on 4 April 2019, but had to be aborted after almost one week, due to the ill-health of a critical witness.  Further trial dates of 5 and 12 August 2019 were fixed, but had to be vacated due to uncertainty about whether or not Omar would be a party to the trial, depending on the outcome of his application to withdraw his plea.

1. After Omar’s application was refused, the trial of Osman and Ms Mourad was fixed for hearing on 23 March 2020.  That trial date had to be vacated due to the pandemic, and the matter was relisted for 28 September 2020.   

1. Having regard to the number of previous attempts to try this case, it is desirable to finalise it as soon as practicable.

1. Furthermore, given that the relevant events occurred in April 2017, and that the credit of key eye witnesses will be under challenge, it is obviously desirable to hear this trial sooner rather than later, while events are fresher in the witnesses’ minds.  

The nature of the case

1. This case has a number of features that make it well-suited to trial by judge alone.

1. The issues at trial will be relatively narrow.  Omar admitted to being the shooter.  Osman denies being the driver.  The two main issues in dispute at Osman’s trial will be the identity of the driver, and whether he was legally complicit in the shooter’s acts.

1. 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.

1. There are several aspects of this case that involve some complexity, concerning aspects of the complicity argument, and the ‘gross violence’ provisions.  I am not suggesting they are matters that could not be determined by a jury, but they are matters which could be decided more easily by a judge.

1. Given the animosity between the Tiba family and the victim, and their respective supporters, there is a realistic possibility that one of the key witnesses may offer a non-responsive answer of the type which led to the discharge of the first jury.  Were that to occur in front of a judge alone, the answer would simply be ignored and the trial could continue.  That makes a judge alone trial a safer option in the particular circumstances of this case.

1. The parties have agreed that two key witnesses will need to give their evidence in court, but that all the others can give evidence by video-link.  That makes this trial an ideal one to proceed before a judge alone in the near future, as it is not going to require the movement of large numbers of witnesses in and out of court at this stage of the pandemic.

Conclusion

1. For all of those reasons, I am satisfied that it is in the interests of justice to order that this trial be by judge alone.

1. Pursuant to s 420D of the CPA, I will order that the charges against Osman Tiba be heard and determined by a judge alone, without a jury.

1. The trial will be fixed to commence on 12 October 2020, with an estimated duration of 8-10 days.