DPP v Hooper
[2021] VCC 34
•27 January 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-01706
CR 18-01707
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MALCOLM HOOPER OXYMED AUSTRALIA PTY LTD |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 November 2020, 10 December 2020 |
DATE OF RULING: | 27 January 2021 |
CASE MAY BE CITED AS: | DPP v Hooper & Anor (application for trial by judge alone) |
MEDIUM NEUTRAL CITATION: |
REASONS FOR RULING
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Subject:
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Legislation Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Rapke QC with | Office of Public Prosecutions |
For the Accused | Mr C. Mandy SC | Furstenberg Law |
Introduction
1HIS HONOUR: Malcolm Hooper and Oxymed Australia Pty Ltd (Oxymed) are each charged with six offences under the Occupational Health and Safety Act 2004 (the Act). Eight of the charges are under s.26 and the remainder under s.32.
2On 16 November 2020, Mr Hooper and Oxymed applied for trial for judge alone. The application is opposed by the Crown.
3The parties presented written outlines of their submissions and elaborated upon them in lengthy oral submissions.
Circumstances
4On 22 August 2018, after a three day committal hearing, Mr Hooper and Oxymed were committed for trial. On 4 November 2019, an indictment was filed. For an indictment, it is lengthy, made so by the particularisation of each charge. The charges arose out the events allegedly occurring on 6 April 2016.
5For the purposes of this application, the prosecution case is derived from the document entitled 'Further Amended Summary of Prosecution Opening' (the opening).
6Mr Hooper and Oxymed operated a hyperbaric oxygen therapy facility at premises in South Yarra. They shared the management and control of the facility. They engaged two persons to work as chamber attendants.
7Hyperbaric oxygen therapy describes a treatment involving the breathing of high concentrations of oxygen at high pressure in a chamber. The treatment is supposed to give therapeutic benefits.
8The therapy is carried in a pressurised chamber. Some chambers can hold one person, called 'monoplace chambers', others more than one, called 'multiplace chambers'. At the South Yarra premises, there were only monoplace chambers with the oxygen provided to the patient through a mask rather than through the atmosphere of the chamber itself. A monoplace chamber does not allow anyone else to be with a patient while a multiplace chamber does.
9If an emergency arises, there needs to be rapid decompression of the chamber. The manufacturer of the chamber recommends emergency decompensation within 30 seconds.
10Craig Dawson suffered from multiple sclerosis, which caused epileptic fits. Between 2007 and his death, he suffered fits every one to three months. When suffering an epileptic fit, he would lose consciousness for between five and 20 minutes. He would regain consciousness for the next five to 15 minutes before having another fit. Usually, he was taken to hospital by ambulance. On 6 April 2016, he was taken to hospital and treated there until 11 April when he died after the withdrawal of life support.
11By April 2016, Mr Dawson was severely disabled: he could not walk; he could not use his right arm and most of his left arm; his eyesight was poor; and his speech was also poor.
12The events of 6 April 2016, including those at the hospital, are described in paragraphs 15 to 23 of the opening. Paragraph 23 deals with another patient that day at the clinic, Dennis Loh.
13During the morning of 8 April 2016, a WorkSafe investigator visited the clinic, spoke to Mr Hooper, and otherwise investigated. He issued improvement and prohibition notices under the Act. In the afternoon, further investigators arrived.
14On 8 June, at the invitation of Mr Hooper, Frank Ziegler visited the clinic and inspected the chambers. Mr Ziegler had manufactured the chambers at the clinic. He reported to Mr Hooper, a report which Mr Hooper asked him to amend, which he did.
Legal considerations
15This application relies on s.420D of the Criminal Procedure Act 2009. Sub-section (1) provides:
'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.'
16Pausing there. Each of paragraphs (a), (b) and (c) is satisfied. As with these applications, the issue lies in paragraph (d), for sub-s.4 permits the making of the order even if the prosecution does not consent.
17In DPP v Combo[1], Chief Judge Kidd said of the expression 'the interests of justice' and quoted paragraph (d):
'The expression "the interests of justice" is broad and derives substance from the context in which it is used. The interests of justice will, of course, "include the interests of the parties, [but] the concept will invariably be wider than that and include larger questions of legal principle, the public interest and policy considerations". The public interest concerns 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. Just where the interests of justice lie will be ascertained by reference to the facts and circumstances of the particular case.
A determination about where the interests of justice lie involves a balancing of these various and sometimes competing interests, as they arise in an individual case. No single factor will be determinative.’ (citations omitted)
[1] [2020] VCC 726 at [48] and [49].
18The offence created by s.26(1) of the Act reads:
'A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.'
19While that created by s.32, reads in part:
'A person who, without lawful excuse, recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offence…'
Discussion
20Between them the parties identified a number of discrete issues. I will deal with them.
Mode of trial
21In the context of the emergency provisions, there is nothing which shows a preference for trial by jury over trial by judge or vice versa. In that regard, I refer to paragraph 53 of the decision in Combo. Because it is legislation dealing with the consequences of an unexpected pandemic, the observations of Heydon J in AK v The State of Western Australia[2] as to the superiority of trial by jury have no application. His Honour was dealing with legislation passed in happier times where there was no emergency or restrictions introduced to overcome the effects of the pandemic.
[2] (2008) 232 CLR 438.
Ill-health of two prosecution witnesses
22In June 2020, the prosecution wrote to the court seeking an urgent listing of the trial. It did so because three of its expert witnesses were seriously ill. Each had a form of cancer and was undergoing treatment.
23One of the expert witnesses has since died. The Crown seeks to lead that person's evidence through the use of statutory provisions. This should be an issue resolved before the trial starts. Whether it is admissible or not should simplify the trial.
24Each of the other two expert witnesses suffers from a form of cancer. Both have undergone treatment. One is making progress, the other is uncertain. That other is suffering from pancreatic cancer which is known to have an unfavourable prognosis generally.
25One would think the state of these witnesses favours an early trial as their ability to give evidence at a later trial is uncertain. However, the Crown's position has reversed. It proposes to manage this situation. It is taking a risk. If one or both of those witnesses is or are unavailable through ill health when these charges are listed for trial, then it is problematic whether the trial will adjourn at the request of the Crown for the later availability of that witness or witnesses may be uncertain. If a witness dies is or so severely incapacitated as to be unable to give evidence, the Crown may seek to deal with this situation using statutory provisions. Whether it would be successful is also uncertain.
26As far as I am concerned, this issue is immaterial to the applications. It raises the possibility of hurdles for the Crown in its prosecution. The Crown does not seek a judge alone trial to overcome this situation. It is not for me to choose a mode of trial to assist the Crown where it does not want that type of help.
Complexity of the evidence
27A good deal of the evidence in this proceeding will be scientific. It will involve the nature, construction and operation of hyperbaric chambers. The operation involves the delivery of oxygen at pressure. Assuming the fact of death is admissible, then there will be evidence as to its cause. This will involve an examination of the medical condition of the deceased. There will be evidence concerning the Australian Standard allegedly governing the operation of such chambers.
28With scientific or medical matters, the importance of adequate reasons of a judge was stressed by McClelland CJ at common law in R v Belyhar[3]:
'If the trial will involve complex engineering, scientific or medical issues it may be more readily concluded that a verdict accompanied by the reasons of the trial judge will enhance the interests of justice, both in relation to the accused and the maintenance of confidence in the criminal justice system. It would inevitably facilitate an appeal if the judge has erred.'
[3] [2012] NSWCCA 86 at [112].
29The complexity of the evidence has another aspect. The trial by judge alone is more flexible than trial by jury: the needs of one person as opposed to the need of, at least, twelve. In the circumstance, where the restrictions of the pandemic still apply, this is a consideration.
30However, in this case, the expert evidence will not be complicated by the existence of conflicting opinions. The Crown alone proposes to call expert evidence, whether scientific or medical. The applicants do not intend to call such evidence. For the tribunal of fact, there will be no need to sift conflicting opinions of expert witnesses. If the opinions of expert witnesses are challenged, then it will be on the traditional ground that the assumed sub-stratum of fact does not justify the opinion of a particular expert. Whether this will truly be a basis of attack, I do not know for no examples were given during the course of submissions. Either way, the task of the tribunal of fact will be relatively straight forward. Where complexity of such evidence favours trial by judge alone, in this case, it does not.
Credibility of witnesses
31It is rare for the credibility of an expert to be in issue. Even in personal injury litigation, it is a rare occurrence. I doubt credibility will be an issue here. There are a number of non-expert witnesses. I do not know whether any or all of those witnesses were questioned at the committal hearing or whether their credit was in issue. Whether the credibility of any of the non-expert witnesses is a significant issue, I cannot say. The applicants say not although the Crown is not so definite.
32The Crown wishes to use certain behaviour of Mr Hooper as evidence of his dishonesty. It does so in a notice of incriminating conduct. Generally, juries are thought to be better at assessing credibility, and by analogy, dishonesty than judges. I cannot say how influential such allegations will be in the trial of Mr Hooper.
33Overall, I will treat the issues of credibility and dishonesty as neutral factors.
Efficiency of the trial
34There are two ways in which a judge alone trial is more efficient than one by jury. First, with the former the trial will be shorter. The parties estimate a jury trial will take between four to six weeks while the accused estimate a judge alone at four weeks. Second, a judge can accommodate the needs of witnesses far better than a jury. He or she can arrange sitting times to accommodate the needs of witnesses or even the parties. There is far less flexibility in that regard where a jury is concerned.
Prejudice
35In the first eight charges, the fact of the death is irrelevant to the proof of those charges. They relate to the risk and the remedies available to overcome them. The admissibility and, if admissible, its use in a trial is a simpler process with a judge alone trial. With a trial by jury, ordinarily, those issues would be decided before the start of the trial. Ordinarily, that would also be the case in a judge alone trial.
Objective community standard
36The applicants submitted that objective community standards are peripheral in this case and are overwhelmed by the other factors. They submitted it is emergency legislation where legislation creating trial by judge alone in other States was not introduced as part of an emergency. For this reason, objective community standards should not be seen as important as elsewhere.
37Although it is true this mode of trial was created as a response to an emergency caused by the COVID-19 pandemic, the importance of objective community standards is recognised in the leading case of DPP v Combo[4]. Whether the Chief Judge was speaking as a judge of the County Court or a Justice of the Supreme Court or both does not matter for such standards are an important factor in the appropriate case[5]:
'Where is a fact in issue involves an application of a community standard, this tends in favour of a jury trial. That is because an assessment of objective community standards is best undertaken by a group of members of the community. In some jurisdictions, this preference is legislated.
'The application of a standard may be raised as an element of the offence or as part of a defence, such as reasonableness, negligence, indecency, obscenity or dangerousness.' (citations omitted)
[4] [2020] VCC 726 at [63] and [64].
[5] If he spoke as a judge of the County Court then what his Honour said was persuasive to another judge. If his Honour spoke as a Supreme Court justice then it is binding on a judge of the County Court.
38The applicants distinguish between objective standards and objective community standards. They point to the concept of 'reasonable practicability' in the Act. This concept involves these elements: the likelihood of the risk occurring; an assessment of the degree of harm if the risk eventuates; the applicants (as accused persons) knew or ought to have known of the risk and the measures to overcome it; and the cost of overcoming the risk.
39I do not agree with the applicants' submission that the assessment of risk does not involve an objective community standard. It is not far removed from the concept of 'dangerousness'. 'Dangerousness' is really a subset of 'risk', describing a high level of risk.
40The concept of 'reasonably practicable' appears in s.26 of the Act. It is linked to the need to make a workplace 'safe and without risks to health.' I consider such a concept as eminently one which involves objective community standards. It involves an assessment of the degree of risk and whether it is reasonably practicable to eliminate or reduce it. Charges 1 to 8 on the indictment allege four areas where the applicants failed to take reasonably practicable measures.
41The most serious from the perspective of Mr Hooper is the offence created by s.32 of the Act for it carries the possibility of imprisonment if he is found guilty. These are Charges 9 to 12 on the indictment. The section joins the concept of 'recklessly engages in conduct' with 'danger of serious injury'. 'Recklessness' describes a state of mind and requires a finding of fact[6]:
‘His Honour cited a passage from the decision in R v Helmhout as setting out the appropriate test for recklessness:
"[Recklessness] must involve as a minimum some advertence to the possibility of, or breach of, some allegation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a 'don't care' attitude generally."
[6] DPP v Marijancevic and ors (2011) 33 VR 440 at [84] and [85].
'That passage accords with the conventional understanding of recklessness within the criminal law. Conduct would be reckless if the officer had foresight that it might be illegal, but proceeded with indifference as to whether that was so. What is described as an alternative of a, 'don't care' attitude expressed in the passage from Helmhout must be understood as meaning the offender, recognising that the conduct might be illegal, 'did not care that it was.’’
42Plainly, 'recklessness' does not engage an objective community standard. Such a finding is made on the evidence in a particular case.
43However, the concept of 'danger' is, according to the authorities, within the area of objective community standards.
44There are eight charges under s.26 of the Act. The section links the concept of, 'reasonably practicable' with, 'safe and without risks to health.' The former involves an objective test and what is practicable and reasonably so falls within the concept of objective community standards.
45It is true expert evidence is necessary to enable the finder of fact to assess the degree of harm: the creation of a stratum of fact underlying the assessment. That is the first step in the process. The next step involves an assessment.
Nature of the workplace
46The Crown submits that the workplace in this case differs from those considered in other cases: it was an allied health facility where members of the public were invited to attend for treatment. The other workplaces were more conventional where the workers of the employers attended. The respondent submits it is appropriate and necessary for the public, in the form of a jury, to pass judgment.
47I do not accept this submission. It appears to invite the jury to adopt a quasi-political role by evaluating the acceptability of this particular workplace divorced from the narrow considerations required of the case.
Delay
48The purpose of s.420D is to enable to the justice system to function in the face of the impediments thrown up by measures to counteract the pandemic[7]. As an emergency measure, trial of criminal charges, previously confined to juries, could now be heard by judges alone. If it were otherwise, the system would stagnate to the detriment of all: despite the impediments, trial by judge alone could proceed where trial by jury could not.
[7] See Combo at [54].
49Before me, the parties expected the trial by jury would take four to six weeks and the applicant's estimate four weeks for trial by judge alone. The applicants anticipated a judge alone trial could occur in March or April 2021, while trial by jury would occur in the first term of 2022. The Crown did not agree with the second set of estimates, but conceded a trial by judge alone will be achieved, 'very, very likely' sooner than a trial by jury.
50This Court suspended trials by jury on 16 March 2020 and resumed them on 16 November 2020 on a pilot basis. In the interests of health and safety, the resumption has been limited as to the number of trials and modified as to their conduct.
51On 4 September 2020, the Court issued a document entitled, 'Revised - relisting Schedule - Melbourne criminal trials commencing January 2021.'[8]
[8] The accused’s counsel referred to this document as a practice note.
52As a guide, it outlined the future of criminal jury trials at the Court at Melbourne based on two scenarios. Both scenarios assumed such trials would restart in January 2021. In fact, they restarted in November 2020 on a very limited basis.
53The first scenario assumed the Court would offer criminal jury trials on a reduced basis during 2021 and resume normal functioning from the start of 2022. The second scenario assumed a reduced capacity for the first six months of 2021 and thereafter the Court would operate normally. The reduced capacity is ten criminal jury trial concurrently.
54Both scenarios distinguish between those trials with existing trial dates and those without. This case would fall into the first category. There are timelines attached to each scenario. Given recent developments, scenario 2 is more likely to apply. It anticipates the listing of this case in Term 3 of 2021, that is, between 11 July and 30 September 2021. Given the estimated length of the trial, it would be prudent to consider its listing in Term 4, that is, 3 October to 16 December 2021. In view of the above, a delay of twelve months from when this application came before me to the anticipated start of the trial is reasonable.
55It is approaching five years since the alleged events of 6 April 2016. The charges against the applicants were filed a year later, which is when the proceeding against the applicants commenced. At some time afterwards, there would have been a filing hearing where a direction would have been given about the service of the prosecution's brief of evidence. After the service of the brief of evidence, during November 2017, the first committal mention hearing occurred. A committal hearing occurred in August 2018. After committal for trial, the first directions hearing in this court occurred in September 2018. It was adjourned to a second directions hearing for the prosecution to consider a resolution offer made by the applicants. The second directions hearing occurred in February 2019. Plainly, there was no resolution and the trial was listed for February 2020.
56In February 2020, one or other or both applicants applied for an adjournment of the trial. The application was granted. I have not seen the reasons of the judge who granted the application. I am told the basis of the application was that the accused could no longer fund their lawyers. I assume the judge did not find the applicant or applicants or their lawyers responsible for the need for the application.
57The Crown pointed to the repeated failure of the applicants to obey the directions of judges in the filing of various documents. The applicants did not deny that submission. However, it was not demonstrated how those failings delayed the overall progress of this proceeding in this court.
58Delay can affect the quality of the evidence of witnesses. It should not affect the memories of expert witnesses whose evidence has largely been set out in written reports and tested through cross-examination at a committal or other hearing. However, the memories of other witnesses fade over time. Unusually, apparently there are about as many expert witnesses as there are other witnesses. Most of the delay has already arisen. The additional delay of about a year is not much overall since the events in April 2016.
59Delay also means the natural, as opposed to the corporate, applicant remains uncertain of his future. Even though being on bail and being at large, subject to its conditions is less onerous than being in custody, nevertheless, the conditions of bail, even minimal ones, are a limitation on his freedom.
60With trial by judge alone, the trial judge must give adequate reasons for his or her verdict. For a trial involving witnesses, expert and non-expert, and lasting about four weeks, it is expected the judge will take time to prepare those reasons. His or her task is simpler because there will be no clash of expert opinion. There may be cross-examination about the facts assumed by the experts and forming the sub-stratum of facts on which their opinions are based or partly based. But that is usually a less onerous task faced than that of weighing conflicting opinions. My suggestion of up to six months was rejected by the applicants on the basis of the need for urgency where criminal charges are concerned. I agree there will be a greater sense of urgency. It is unlikely a verdict and reasons will be given at the end of final submissions. To be adequate, reasons may take, in my opinion, between one and three months to prepare.
61The decision in this case is finely balanced. In my opinion, there are two significant factors: delay to trial and determination; and the objective community standards. The other issues are marginal or neutral.
62A trial by judge alone will occur quicker than trial by jury. The former may occur as early as March, the latter as late as the final term of 2021. There could be a difference of nine months. The trials will be much the same length, whatever mode is adopted. Trial by jury should result in a verdict within days of the judge's charge. For trial by judge alone, a verdict, accompanied by adequate reasons, should take between one and three months of counsels' closing addresses. In those circumstances, the overall difference in delivering a verdict is shorter than if one considers the delay to trial and the estimated length of the trial.
63Both sets of charges raise objective community standards as part of the elements of each offence under ss 26 and 32 of the Act. For each offence, those standards represent an important element of the charge. They are not tangential.
64Overall, I do not consider it is in the interests of justice that the charges be tried by a judge alone and reject the applications.
- - -
65HIS HONOUR: I'll make available, these written reasons. I hope everyone was able to hear me clearly in my delivery of these oral reasons.
66MR RAPKE: Yes, Your Honour, we were able to hear you.
67MR MANDY: Thank you, Your Honour. The connection did drop out a couple of times so there were some passages which I missed, but I understood most of it.
68HIS HONOUR: All right. Well, having rejected the applications, is there anything else that any of you wish me to do?
69MR MANDY: No, Your Honour.
70MR RAPKE: I wouldn't mind a hearing date, Your Honour, but I don't know if Your Honour has that - if that's in Your Honour's basket of responsibilities or someone else's.
71HIS HONOUR: I think the latter is almost certainly the case.
72MR RAPKE: Well, perhaps we could pursue that just through the normal channels of the County Court whenever that's appropriate, Your Honour.
73HIS HONOUR: I think under the arrangements in relation to these applications and rulings, that it rules me out being the trial judge, unless the parties particularly want me to be such a person, and I doubt that would be the case. Well, apart from making that order, I'll otherwise adjourn the matter.
74MR RAPKE: Well, before Your Honour goes, there's a question of bail.
Mr Hooper's still on bail and we don't have a date to which he should be further bailed; how do we deal with that?75HIS HONOUR: Well, I could adjourn it for a directions hearing or some sort of mention for a judicial registrar in crime, I could even do it before then as matter of convenience at a nominated date.
76MR RAPKE: Well, we'd be happy with that. In fact, with respect, Your Honour, that's an excellent suggestion. Your Honour is now seized in the matter in so many ways, if Your Honour were able hang onto it, at least at this point in time, and nominate a date for a mention or a DH and the accused, Mr Hooper, could be bailed to that particular date.
77HIS HONOUR: Do you want to say anything about that, Mr Mandy?
78MR MANDY: No, thank you, Your Honour.
79HIS HONOUR: Perhaps a date in a couple of months' time would be probably better than shorter, or it might be a date in shorter time span, we might get a better clarity about a trial date. Do any of you wish to comment on that?
80MR RAPKE: No, Your Honour, I leave it in Your Honour's hands as to what date Your Honour picks.
81HIS HONOUR: Well, perhaps a month from today, Mr Associate, at 9.30, by again by an audiovisual link, and extend Mr Hooper's bail to that date or his undertaking of bail to that date.
82MR RAPKE: Thank you, Your Honour, that's entirely satisfactory.
83HIS HONOUR: Do you want to get a date, Mr Associate?
84ASSOCIATE: Sure, Your Honour, I'll just find that date now. All right, Wednesday, 24 February.
85HIS HONOUR: At 9.30 ‑ ‑ ‑
86MR RAPKE: Thank you, Your Honour.
87HIS HONOUR: ‑ ‑ ‑ for mention before me. Adjourn the matters to that date and extend Mr Hooper's undertaking of bail in the same terms and conditions.
88MR RAPKE: Thank you, Your Honour.
89HIS HONOUR: All right. Well, unless there's anything else, I'll have my associate adjourn the court very temporarily; I've got a matter at 10.30.
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