Director of Public Prosecutions v Verdesoto and Keene

[2022] VCC 628

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01166
CR-21-01167

JOHN VERDESOTO and CHRISTOPHER KEENE	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF RULING:	13 May 2022
CASE MAY BE CITED AS:	DPP v VERDESOTO & KEENE
MEDIUM NEUTRAL CITATION:	[2022] VCC 628

RULING

Subject:Application for Judge Alone Trial

Catchwords:              Prejudicial evidence admissible in the trial – importance of applicants’ preference – efficacy of JATs

Legislation Cited:      Justice Amendment (Trial By Judge Alone and Other Matters) Act 2022; Criminal Procedure Act 2009;

Cases Cited:R v Droudis (No 13) [2016] NSWSC 1350; DPP v Truong [2020] VCC 806; DPP v Jacobs (a pseudonym) [2020] VCC 1251; DPP v Combo [2020] VCC 726; Oxymed Australia Pty Ltd v DPP [2021] VSCA 68;

Ruling:  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Applicant	A. Malik D. McGlone	James Dowsley & Associates Matthew White & Associates
For the Respondent	D. Hancock	Office of the Director of Public Prosecutions

HIS HONOUR:

1John Verdesoto and Christopher Keene are each to stand trial on a charge of attempting to pervert the course of justice contrary to the common law of Victoria.

2It is alleged, whilst both applicants were imprisoned at Marngoneet Correctional Centre, they agreed to procure Tracy Stephen, a friend of Verdesoto, to make a false affidavit in support of a bail application for Keene.

3Ms Stephen did swear an affidavit. She subsequently pleaded guilty to statutory perjury for making a false statement in the affidavit.

4The applicants deny they made the agreement alleged and each denies prevailing upon Stephen to give false evidence.

5The evidence of the applicants’ involvement in the offence charged is comprised of the prison recorded ARUNTA calls which they allegedly made to Stephen.

6The applicants now apply for a judge alone trial (“JAT”).

7The prosecution supports the application.

8The parties agree the application could be determined “on the papers” without the need for a hearing in court with oral submissions.

9The Justice Amendment (Trial By Judge Alone and Other Matters) Act 2022 (“JAA”) inserted a new chapter 9 into the Criminal Procedure Act 2009 (“CPA”) which allows for a judge alone trial (“JAT”) while a “pandemic declaration is in force”.[1]

[1] Criminal Procedure Act 2009 (Vic).

10Currently a pandemic declaration is in force.[2]

[2] Public Health and Well-Being Act 2008 (Vic), s 165AE.

11The purpose of the legislation is to enable the courts to deal, efficiently and fairly, with the pandemic-related backlog of pending criminal trials.

Criteria and Principles

12The criteria for determining an application are set out in s 420E of the CPA which states:

(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.

13Chief Judge Kidd set out the guiding principles in DPP v Combo[3] and in Hooper and Oxymed Australia Pty Ltd v DPP.[4] The Court of Appeal endorsed His Honour’s approach.

[3] [2020] VCC 726 (2 June 2020).

[4] [2021] VSCA 68.

14Like most cases, including Combo and Oxymed, the important consideration in this application is whether it is in the “interests of justice” to make the order.[5] The other criteria are uncontroversial and can be dealt with quickly.[6]  

[5] CPA, s 420E(1)(d).

[6] CPA, s 420E(1)(a)-(c).

15Each applicant is charged with an offence under the law of Victoria.

16Each applicant consents to the making of an order for a judge alone trial.

17By reference to the application, I am satisfied each applicant has obtained legal advice on whether to give consent to trial by judge alone, including the legal effect if an order is made for trial by judge alone.

18Even where the parties agree an order should be made for a JAT, it remains for the court to determine whether it is in the interests of justice to do so.

19In deciding the question, I have been guided by principles set out in Oxymed and Combo.

20In Oxymed,[7] the Court of Appeal endorsed six relevant principles, identified by Chief Judge Kidd in Combo, and summarised them as follows:

(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.[8]

[7] [2021] VSCA 68.

[8] Ibid, [37].

21The Court of Appeal went on to emphasise the importance of the proper functioning, integrity and efficiency of the criminal justice system:

Section 420D does not define the phrase ‘the interests of justice’. It is of wide connotation. It necessarily encompasses the interests of each of the parties in the litigation. In addition, the community has a legitimate interest in the efficient and just resolution of criminal trials. The interests of justice include the public interest in the fair and efficient conduct and adjudication of criminal trials.[9]

[9] Ibid, [42].

22In determining whether to make an order, the court must have regard to the submissions of the defence and, if any, of the prosecution and whether or not the prosecution consents to the making of the order.

Applicants’ submissions

23The applicants’ clear preference is for a JAT because, notwithstanding jury directions, they fear the jury would not be able to ignore the unfair prejudice of evidence the two of them were in jail when they allegedly committed the offence charged.

24They submit the application of an objective community standard is not required to determine an issue in the trial.

25They also submit a JAT would be shorter than a jury trial.

Respondent’s submissions

26The prosecution agrees there is limited factoring of community standards in assessing the evidence.

27The prosecution also submits the determination of the charges involves an application of the law to the facts, with the application of relevant principle arguably more easily suited to a judge.

Consideration

28I was told the court has capacity to list this case for trial at the Geelong sittings of the court commencing 22 August 2022.

29A provisional date for a judge alone trial is 24 August 2022.

30While delay is not a consideration here, the court’s recent experience is jury trials are taking longer due to COVID-19 related interruptions. As well, there have been cases where key participants have tested positive, resulting in the trial ending, the jury being discharged, and another trial date being fixed.

31Experience also shows that trials, which have been aborted because of a COVID-19 positive case, are unlikely to be re-fixed for many months.

32A JAT facilitates greater flexibility in the conduct of the trial and would reduce the risk of prejudice arising from interruption of or disruption to a jury trial. The efficient resolution of a criminal trial is a central consideration. A JAT would provide a comparatively efficient route to finality for the parties.

33Granting a JAT application also reduces the number of criminal trials permitting the court to hear and deal with other matters more expeditiously.

34I do have regard to the applicants’ perception of the danger of an unfair trial because the evidence will disclose they were in custody for other matters when they are alleged to have committed this offence. In my view, theirs is an understandable concern.

35Because of their training and experience, Judges are considered to be better able to put aside prejudicial material and to determine the case on its merits.[10] Notwithstanding the availability of directions to a jury, a JAT would significantly reduce the risk of unfair prejudice which the applicants fear.

[10] R v Droudis (No 13) [2016] NSWSC 1350, [83] – [91]; DPP v Truong [2020] VCC 806, [38]; DPP v Jacobs (a pseudonym) [2020] VCC 1251, [46].

36I also accept, in this case, there is limited application of objective community standards which would otherwise militate in favour of a jury trial.

Conclusion

37Considering all relevant matters, including the relative efficacy of JATs in current times, the contribution they make to reduce the backlog of trials and, significantly, the wishes of the accused, I am satisfied it is in the interests of justice to order that the trial proceed before a judge alone.