Director of Public Prosecutions v Tran
[2022] VCC 1050
•8 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00750
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
| v | |
| DUNG TRAN | Applicant |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2022 | |
DATE OF RULING: | 8 July 2022 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | 2022 VCC 1050 | |
REASONS FOR RULING
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Subject:Criminal Law – Application for trial by judge alone
Catchwords: Application for trial by judge alone under COVID–19 emergency provisions – Application not opposed by the prosecution - interests of justice
Legislation Cited: Crimes Act 1958; Criminal Procedure Act 2009; Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022
Cases Cited:DPP v Combo [2020] VCC 726; Hooper and Oxmed Australia Pty Ltd [2021] VSCA 68
Ruling: Application for trial by judge alone granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr. D. Cronin with Mr. S. Ranjit | Papa Hughes Lawyers |
| For the Defendant | Ms. D. Guesdon | Office of Public Prosecutions |
HER HONOUR:
1Dung Tran has a trial listed in the Ballarat County Court in the current circuit in relation to 3 charges – cultivate a narcotic plant in not less than a commercial quantity, traffick in a drug of dependence in not less than a commercial quantity and theft. The Trial has a “not before” date of 18 July 2022. The offending is alleged to have occurred in September of 2020.
2Application is now made on behalf of Dung Tran for a judge alone trial. An application can be made by an accused or of the courts “own motion” under section 420E(2)(a) of the Criminal Procedure Act 2009 (‘CPA’).
3The application is not opposed by the prosecution.
4The parties have appeared today to give oral submissions and have also filed written submissions. Unfortunately an interpreter was not available but the effect of this ruling was announced.
Legislative provisions
5In Victoria, the intention of what are presently temporary trial by judge alone provisions pursuant to the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Bill 2022, is “to ensure more criminal trials and special hearings can proceed during this COVID- affected period and to minimise further disruptions and backlogs in the court system” (Victoria, Parliamentary debates, Legislative Assembly, 10 March 2022 [804]).
6The clear overall purpose of the capacity to hold a judge alone trial is to enable the courts to efficiently and fairly deal with the backlog of pending criminal trials that have arisen due to the impact of the COVID-19 pandemic.
7The Justice Amendment (Trial by Judge Alone and Other Matters) Act 2022 (‘the Act’) inserted the new chapter 9 into the CPA. The provisions set out in chapter 9 allow for a judge alone trial whilst a “pandemic declaration is in force”. Currently a pandemic declaration is in force and is presently due to expire at 11:59 PM on 12 October 2022.
8The key criteria for Victoria is set out in section 420E of the CPA and reads as follows:
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 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 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.
9Applications for a judge alone trial were decided in the County Court and in the Supreme Court pursuant to the predecessor to the current legislation. An early decision of Chief Judge Kidd in the DPP v Combo [2020] VCC 726 (‘Combo’) set out the guiding principles. In Hooper and Oxmed Australia Pty Ltd [2021] VSCA 68 (‘Oxymed’) the Court of Appeal endorsed the approach taken by Chief Judge Kidd in Combo. In each the legislation and jurisprudence of other states where judge alone trials have existed for many years was analysed. The legislation in the other states analysed was not enacted to specifically address the court backlog as caused by a pandemic.
10In Oxymed, The Court of Appeal identified and endorsed six relevant principles referred to by Chief Judge Kidd in Combo. These were summarised by the Court of Appeal as follows[1]:
(1) Section 420D does not create any presumption in favour of jury trials, nor does it impose a corresponding legal onus on either party to rebut any such presumption. The default position is that the trial will proceed before a jury unless and until the court’s discretion is enlivened, under s 420D(1), to make an order for a trial by judge alone. In such an event, the party making the application effectively bears an onus to persuade the Court that the discretion to order trial by judge alone is enlivened and should be exercised.
(2) The expression ‘the interests of justice’ in s 420D(1)(d) is broad. It includes not only the interests of the parties, but also the public interest in ensuring the integrity and proper functioning of the criminal justice system within the courts.
(3) In that respect, it was the intention of Parliament that justice must continue to be administered by the courts during the current public health emergency arising out of the COVID-19 pandemic. The advantage of continuing with the business of the court is a significant factor in favour of ordering a trial by judge alone in an appropriate case.
(4) In determining whether a judge alone trial would be in the interests of justice, the subjective views of the accused are a relevant consideration, and weight should be given to the subjective preference of the accused to be tried expeditiously by judge alone, rather than enduring a substantial delay for a trial by jury.
(5) The question of delay is relevant. It is not in the interests of justice that accused persons must wait excessively long periods to come to trial. Delay may affect and prejudice the fair trial of the accused. The advantage of obviating delay is a significant factor in favour of ordering a trial by judge alone.
(6) Where a fact in issue involves the application of an objective community standard, that consideration tends in favour of a jury trial, because an assessment of such a standard is best undertaken by a group of members of the community.
[1] Hooper and Oxymed Australia Pty Ltd v DPP [2021] VSCA 68 {37}
The case against the Applicant
11The case against the applicant is set out in a document entitled “Summary of Prosecution Opening” dated 14 June 2022. I have had recourse to that document.
12In short compass the applicant is alleged to be present at 3 Pinnacle Point, Bacchus Marsh on 14 September 2020 with a co-accused identified as Le Tuan Anh. This premises had already been identified by police as one containing some form of cannabis growing enterprise.
13At 4:45 PM police officers observed the garage door of 3 Pinnacle Point opening and a vehicle exit. CCTV had captured this vehicle arriving and entering the garage two hours earlier.
14Police officers observed the co-accused to be driving and a second male, alleged to be the applicant, in the rear of the vehicle.
15Police followed the vehicle, a Toyota, and ultimately intercepted it.
16The co-accused was driving and the applicant was in the rear passenger seat with a striped bag next to him. On opening the car door Police report an overwhelming smell of cannabis.
17A further six striped bags were in the boot. All seven striped bags contained a vacuum sealed bag filled with fresh cannabis evenly distributed between them.
18The applicant and his co-accused were arrested.
193 Pinnacle Point was subsequently searched by police. The house had been set up for the hydroponic cultivation of cannabis. The total number of cannabis plants growing was 89 plants weighing 8.34 kilograms. Also located were cuttings with unused plastic vacuum seal bags consistent with those located in the vehicle with the applicant. Two rooms inside the premises had empty pots with plant remnants and hydroponic equipment in place consistent with cannabis plants having been grown. The inference is sought to be drawn is that the applicant and his co-accused had just harvested cannabis. In terms of the cannabis located by Police in the vehicle with the applicant and the co-accused, that is said to have weighed 68.75 kilograms making a combined weight of 77.09 kilograms.
20The fingerprint of the left index finger of the applicant was located inside a light shroud located at 3 Pinnacle Point.
21An electrical bypass was also identified but there is little or no evidence that the applicant was responsible for this.
The Application
22Each charge faced by the applicant is for an offence under the law of Victoria. This criteria is not the subject of any dispute.
23Given it is his application the accused clearly consents to the making of an order for a judge alone trial.
24Based on the application as filed I am satisfied that the accused has obtained legal advice on whether or not to give that consent including legal advice as to the effect of the order.
25The final consideration is whether or not the court considers that it is in the ‘interests of justice’ to make an order for a judge alone trial. It is here where argument is raised.
26Submissions made on behalf of the applicant are as follows:
(a) that the purpose of the legislation is to assist with the management of the backlog of jury trials in the County Court post, and during, the impact of the COVID-19 pandemic;
(b) that pandemic continues to be a disrupting influence with respect to trials by reason of a participant becoming infected, significantly members of a jury, leading to the discharge of juries and the cause of delay;
(c) a judge alone trial would be of shorter duration than a jury trial and use fewer resources;
(d) a judge alone trial involves fewer participants reducing the risk of disruption by reason of infection from COVID-19; and
(e) this trial is one with confined issues and able to be disposed of quickly which ensures finality for the accused and reduces the risk of unwarranted delay. Axiomatically this same argument raises the prospect of ensuring finality for witnesses involved in any trial proceeding; and
(f) a judge alone trial will result in a verdict
27The focus of the applicant’s submission is on the ‘interests of justice’ but the submissions raised distil down to the potential for delay and disruption of jury trials due to COVID-19 and the short estimate of the duration of the trial (5 days) and the limited resources required.
Ruling
28The expression ‘interest of justice’ attracts a broad meaning and includes the parties interests but also the clear public interest in ensuring the proper functioning of a fair and efficient criminal justice system
29The decision in Oxymed emphasised a heightened requirement to give weight to the subjective views of the accused. As was said, referencing authorities from New South Wales and Western Australia:
“For centuries, the right to trial by jury has been understood and upheld, in this state, as a fundamental right of any person charged with an indictable criminal offence. It follows that where an accused person, having obtained appropriate legal advice, makes an informed decision to consent to having the charges heard by judge alone, the subjective wishes of the accused must carry substantial weight in the courts determination whether it is in the interests of justice to make such an order.”
30Currently, as to what is in the ‘interests of justice’ also requires consideration of the COVID-19 pandemic and the situation prevailing within the community. It is clear that the provisions themselves were enacted by emergency legislation and passed in order to enable court to make an order for a judge alone trial.
31Delay is obviously relevant. I accept that the delay, as it presently stands, in relation to this matter is not extensive. Should the matter be disrupted however, it will need to find a place again in a circuit listing
32Whilst the Court has become adept in mitigating the risk of COVID-19, there does remain a fragility in jury trials commencing. This trial is listed in the winter months. Presently, and despite best endeavours, COVID-19 interruptions continue to cause issues in the environment. It is not infrequent the jury trials are disrupted by participants testing positive to COVID-19 or for being close contacts which necessarily requires interruption or variation to the running of a trial by jury. It has been the recent experience of the court that there have been cases where a positive result to a key participant means the trial has to stop, a jury discharged and a new trial fixed.
33This has a natural flow on effect to trial counsel availability and the trial date being able to be re-fixed in a reasonable time after any discharge. Recent experience of the court also sees a lack of alternative experienced Trial Counsel, or any Counsel, thereby exacerbating the situation.
34This sort of potential for further delay should be avoided, where possible, and it is a simple fact that a judge alone trial reduces those risks.
35In addition, the granting of a judge alone trial application reduces the number of criminal trials in the jurisdiction overall, permitting the court to hear and deal with other matters - not seeking to be heard by judge alone - more expeditiously and represents a means of easing pressure into the future – also in the interests of justice.
36Whilst I do not accept the submission that a judge alone trial is necessarily a shorter one in itself given the need for a Judge to make a determination, I do see it as reducing the risk of interruption, discharge, or adjournment for COVID-19 related reasons – which would appear to be in the ‘interests of justice.’
37Judges are capable of forming an assessment of the factual questions in dispute based on the inferences sought to be drawn. It seems to be the common position between the parties that the issues in the trial of Mr Tran are narrow, the trial is of short duration and it does not involve an assessment of objective community standards.
38Given the express wish of the accused, the observed fragility of jury trials generally with the continuing impact of the COVID-19 pandemic, the Crown’s position and the risk of delay should a jury trial need to be aborted, I am satisfied that is in the interests of justice to order this trial be heard by judge alone. The application made on behalf of Mr Tran is therefore granted.
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