Director of Public Prosecutions v Williams
[2020] VCC 1235
•14 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-19-00813
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACKSON WILLIAMS |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 August 2020 |
| DATE OF RULING: | 14 August 2020 |
| CASE MAY BE CITED AS: | DPP v Williams |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1235 |
REASONS FOR RULING
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CRIMINAL LAW – Practice and Procedure – Application for a trial by judge alone – Covid-19 emergency provisions – Delay – Interests of Justice – Short duration of trial – Youthful Indigenous offender – Contested application – Application of community standards – Advancement of community standards by involvement of a jury – Whether this trumps other considerations such as delay and consent of the accused to a judge alone trial – Interest of justice requires a consideration of other factors – Crimes Act 1958, s 42(1)– DPP v Wang (Ruling No 1) [2020] VSC 438 – DPP v Truong & Bui [2020] VCC 806, considered – R v Stanley [2013] NSWCCA 124 – AK v Western Australia (2008) 232 CLR 438, distinguished.
RULING – Covid-19 Pandemic – Delay a powerful factor – Community interest in the continued administration of justice – Criminal Procedure Act, s 420D; COVID-19 Omnibus (Emergency Measures) Act 2020 – DPP v Combo (Application for a trial by judge alone) [2020] VCC 726, applied – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Clancy | Ms A. Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms R. Avis | Mr D. De Witt, Greg Thomas Barristers & Solicitor |
HIS HONOUR:
1In this application the applicant seeks an order for trial by judge alone. The relevant chronology of the matter is set out in the defence or the applicant's chronology which I incorporate by reference.
2In brief outline the applicant faces a charge of assault with intent to commit a sexual offence[1], and a charge of common assault, arising out of an event on 28 October 2018. The prosecution is alleging that he assaulted a female in a laneway in the city on that date. The event was captured on CCTV footage and after some publicity the applicant handed himself into the police.
[1] Pursuant to section 42(1) of the Crimes Act 1958
3He was remanded in custody for a short period and subsequently granted bail. He has been on strict bail conditions. He has sought to resolve the matter but that has been unsuccessful.
4On 26 April 2019 he was committed for trial. The matter was subsequently listed for trial on 15 June this year with an estimate of five days. The matter had earlier been accepted under the emergency case management protocol.
5On 17 July he made an application for a judge alone trial. The sole issue as indicated in his application is whether at the time of applying force to the complainant he intended that she take part in a sexual act.
6In his submission he indicates that he has received legal advice. He is an Aboriginal man. He is anxious to have the matter dealt with rather than enduring a substantial wait for a trial before a jury.
7In his submissions in support of the application he indicates that he consents to the judge alone trial and submits that it would be in the interests of justice that the matter be dealt with expeditiously given his young age and that the factual matters are not in dispute, the medical evidence is not in dispute, and that the trial could proceed on the basis without the need to call any evidence as the statements would be admitted or read in.
8The sole issue as indicated by the applicant in his application is whether it is in the interests of justice to make the order. It is not in dispute that the relevant requirements for a trial by judge alone under s.420D(1)(a) - (c)[2] are made out. The issue in dispute on the application is whether the court should exercise its discretion to make the order on the basis that under sub-paragraph (d):
'The court considers that it is in the interests of justice to make the order'.
[2] Criminal Procedure Act, s 420D; COVID-19 Omnibus (Emergency Measures) Act 2020
9Sub-section 3 of s.420D obliges the court to consider the prosecution submissions before making the order. The prosecution submitted that it was not in the interests of justice to make the order.
10It was not in dispute that the issue in the trial was whether or not the prosecution could prove beyond reasonable doubt that the accused, when he assaulted the complainant, intended that she take place in a sexual act without giving consent.
11In submissions the prosecution submitted that the order ought not be made on the basis that the sole issue in the trial requires the application of community standards, and that the advancement of this interest by the involvement in a jury should trump other interests namely the consent of the accused to a judge alone trial and the avoidance of delay that would otherwise occur in the usual course.
Consideration
12The background to s.420D has been considered in a number of decisions, principally the case of Combo. I incorporate those matters without repeating them. I incorporate by reference paragraph 48 of the decision of the Chief Judge where he canvasses the wide meaning of the term the “interests of justice.[3]”
[3] Refer to DPP v Combo (Application for a trial by judge alone) [2020] VCC 726
13The interest of justice is a wide-ranging concept and Parliament has chosen, unlike the position in the UK, Western Australia and New South Wales, not to place any fetters on the matters to be considered in determining whether a matter should be considered for a judge alone trial.
14The submission of the respondent from Ms Clancy is that this case involved the application of community standards and therefore it ought to be considered by the community through the members of a jury rather than by a judge alone trial. She submitted that on the authority of Stanley[4] and the comments of Justice Haydon in AK[5] the question of whether by his actions the applicant intended that the complainant should take part in a sexual act is a matter of the application of community standards and that it is in the interests of justice that it be determined by a jury.
[4] R v Stanley [2013] NSWCCA 124
[5] AK v Western Australia (2008) 232 CLR 438
15She put that the decision in Stanley, a New South Wales Court of Criminal Appeal, is a persuasive considered decision on the matter that ought to be followed.
16I accept that in the decision of Stanley the court did reach a conclusion that in that case the tribunal of fact would have to apply community standards in judging the formation of intent and thus that weighed in the balance against issues of delay and then the order for a judge alone trial was overturned.
17Significantly at paragraph 59 the court recognised that the fact that community standards must be applied in the resolution of factual issues does not mandate trial by jury but:
'…it is a circumstance in which the jury may be considered to be the superior tribunal of fact.'
18Ms Clancy submitted that effectively the case of Stanley was very much on all fours and that the court should follow it and declined to order a judge alone trial. She also referred to the comments by Justice Haydeon in AK at paragraph 95, that examples of factual issues requiring objective community standards included whether an assault is indecent and whether an accused person had a particular intent.
19Counsel for the applicant on the other hand, submitted that the comments of Justice Haydon in AK were obiter only in that the decision itself turned on whether or not the trial judge had given proper reasons.
20Notwithstanding that, comments by His Honour must be given great weight in my view.
21In relation to the decision in Stanley she doubted the persuasiveness of it, in that the matter involved more complex issues involving the drug intoxication of the accused, and circumstances where there was evidence of indecency in any event.
22I accept the applicant’s submission that neither decision of Stanley nor the comments in AK are persuasive in relation to this matter. It is significant that in the jurisdictions that do refer to the application of community standards as a consideration to be taken into account, in relation to the interests of justice, they do not refer to the issue of intent as being a matter that involves the application of community standards.
23In the present case the issue is a matter of inference as to the intent of the applicant in the light of all the evidence, which on the submissions of the applicant, will essentially not be contested. I do not see the conclusion that will need to be reached as involving an application of a community standard by analogy as to whether or not a particular piece of conduct was indecent, or whether for example driving at a particular speed involved gross negligence.
24If I am wrong about that and in the formation of a conclusion as to intent to commit a sexual act does involve the application of community standards, then that is only one matter to be taken into account.
25In the case of Wang[6] the Judge granted a judge alone trial where the issue, in a murder trial, was intent, namely whether the accused intended to kill or cause really serious injury to the victim.
[6] DPP v Wang (Ruling No 1) [2020] VSC 438
26In the case of Bui[7], Chief Judge Kidd granted a judge alone trial in a case where the issue was an intention to cultivate a large commercial quantity of cannabis. Thus intention was a factor that had to be considered by the factfinder in circumstances where it was admitted that the accused had intended to cultivate a commercial quantity.
[7] DPP v Truong & Bui [2020] VCC 806
27I accept that in both these cases as submitted by Ms Clancy the prosecution did not object to a judge alone trial.
28In the case of Combo one of the issues to be considered was whether or not the accused was complicit in an armed robbery which he denied occurred. Whether or not he was complicit would involve a process of reasoning as to inference from the facts found.
29That is similar to the reasoning here, namely whether or not from the circumstances found the only reasonable inference was that the applicant when he assaulted the complainant, did so with the intent that she take part in a sexual act.
Other Crown submissions
30Determining where the balance lies in the interest of justice requires a consideration of other factors. No one factor is determinative which makes any prior case not necessarily a precedent, almost like a sentence for a particular offence.
31As submitted by the applicant the legislation allowing for judge alone trials was following the pandemic. The result of the pandemic has been that jury trials are now suspended effectively until further notice. It remains uncertain when this particular trial would be heard particularly given that the applicant is not on remand, and the complainant is not a child, both of which in the usual course would give the matter priority.
32The issue of delay is therefore a very powerful factor in relation to this matter particularly where it is likely that this would be a very short trial given the very narrow issues in dispute.
33Weighed against that is the fact that the applicant will not be judged by his peers and the complainant will not have the matter determined by a jury of the community. The view of the complainant is a matter to be taken into account but is not determinative.
34As the court in Combo found, there is no presumption one way or the other that there be a jury trial. It is a neutral matter under s.420.
35Here the applicant's counsel emphasised his relative youth. From the chronology the applicant was just over the age of 19 when the alleged offence occurred. It is now nearly two years since that time and it is likely that the matter may not be heard until late next year or even 2022. The applicant is now 21.
36The chronology of the applicant indicates that at some stage he did go into residential rehabilitation. He said that he was intoxicated at the time of the offence. It was submitted that he lost his job as a result of being charged and going into custody and thus is unemployed.
37He, along with many younger members of the community, has been thrown into unemployment as a result of the pandemic and the measures that have been taken to suppress the virus. Effectively not only is his life on hold as a result of this charge, but also as a result of the pandemic.
38Given his relative youth it is clearly in the community interest that this aspect of his life be resolved earlier rather than later. This was a factor in Combo.
39A further wider community interest is in the continued administration of justice. The complainant has an interest in the matter being resolved although I note her preference to have the matter dealt with by a jury. Wider members of the community have an interest in seeing that at least part of the community, namely the system of justice, is continuing notwithstanding the pressures and limitations associated with the pandemic. These wider community interests in the continuation of life as best it can are relevant, so that the impact on people by the pandemic can be minimised. This can be seen in efforts to continue the education of young people notwithstanding the pandemic.
40In the present case the applicant is a relative young person and by analogy it is in the community interest that he face justice, and in the event that he is found guilty he be punished and steps taken for his rehabilitation. That is in the long-term community interest and is a very significant matter rather than having him remaining in a state of limbo for many months due to the current situation.
41Even if, which I do not accept, the factfinding here involves the application of community standards, these other wider matters involving the applicant and the wider community, I regard as having greater weight in all the circumstances.
42This applies particularly where given the narrow scope of the trial and notwithstanding the pandemic limitations, the court is in a position to facilitate a judge alone trial of this matters in the relative early future.
43For all these reasons I propose to grant the application.
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