DPP v Ritchie (a pseudonym)
[2020] VCC 1111
•28 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEONA RITCHIE (a pseudonym)[1] |
[1] To ensure that there is no possibility of identification of the complainant, this ruling has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 16 July 2020 | |
DATE OF RULING: | 28 July 2020 | |
CASE MAY BE CITED AS: | DPP v Ritchie (a pseudonym) (Application for trial by judge alone) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1111 | |
REASONS FOR RULING
---
Subject: Criminal Law–Application for trial by judge alone.
Catchwords: Application for trial by judge alone under COVID-19 emergency provisions – Application opposed by the prosecution – Interests of justice – Need for administration of justice to continue – Two previous trials – Significant Delay – Application of objective community standard required for two of the four charges - Credibility of the complainant to be a central issue at trial.
Legislation Cited: Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980, s.50(1) and s.52(1); Criminal Procedure Act 2009, s.420D;
COVID-19 Omnibus (Emergency Measures) Act 2020.
Cases Cited: DPP v Combo [2020] VCC 726; DPP v Truong & Bui [2020] VCC 806 DPP v Wang [2020] VSC 438; R v Quami (No 14) (2016) 265 A Crim R 575; R v Stanley [2013] NSWCCA 124; R v Homann [2018] NSWSC 198; Steele v Western Australia [2018] WASCA 133; R v McNeil [2015] NSWSC 357; R v Simmons (No 4) (2015) 249 A Crim R 120; Redman v R [2015] NSWCCA 110; R v Quami (No 14) (2016) 265 A Crim R 575, [39]-[42].
Ruling: Application for trial by judge alone granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M Fitzgerald | Doogue & George |
| For the Respondent | Ms S Flynn Q.C. | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1 The accused, Leona Ritchie[2] (the applicant’), is charged on Indictment E11831906.2 with having committed four sexual offences against her teenage stepson in the mid-1980s. Charges 1 and 2 allege acts of gross indecency in the presence of a child under the age of 16 (‘gross indecency’) while charges 3 and 4 allege acts of incest.[3] During the relevant period, the applicant was aged in her mid-20s and the complainant was between 13 and 15 years of age. They are now aged 60 and 48, respectively.
[2] A pseudonym.
[3] Those charges were laid pursuant to s.50 (1) and s.52(1), respectively, of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980.
2 In respect of those four indictable charges, the applicant now makes application for a trial by judge alone pursuant to s.420D of the Criminal Procedure Act 2009 (‘the CPA’). The written application was filed on 1 June and supported by written submissions filed on 9 June. The application is opposed by the prosecution whose written submissions were filed on 17 June. At the hearing of this application, counsel for each of the parties made supplementary oral submissions in support of their respective positions.[4]
[4] The hearing commenced on 9 July and concluded on 16 July 2020.
3 I note that to date, there have been three previous decisions in this state regarding applications made under the newly inserted s.420D of the CPA. The first two decisions were made by Chief Judge Kidd last month,[5] while the most recent decision was made by Hollingworth J on 20 July 2020.[6] In each of those cases, unlike the present case, the prosecution consented to the application for trial by judge alone. This is therefore the first application to be decided where the parties have opposing views regarding the appropriateness of an order permitting a trial by judge alone.
[5] DPP v Combo [2020] VCC 726 (2 June) and DPP v Truong & Bui [2020] VCC 806 (15 June).
[6] DPP v Wang [2020] VSC 438.
4 I will return to the relevant procedural history and delay of this case later in this ruling, but by way of introduction I note that this matter has a somewhat tortured history. The applicant was due to face trial for the third time on 16 March 2020, following two previous successful conviction appeals in the Court of Appeal.[7] However, as a result of the COVID-19 pandemic, all jury trials listed to commence from that date were suspended. The anticipated delay before such trials could proceed with a jury was estimated to be at least 9 months or more.[8] The course of this public health crisis has been unpredictable and there is presently much uncertainty as to how the remainder of the pandemic will play out, particularly in Melbourne, which was recently plunged back into a six-week Stage 3 restrictive lock-down.[9] When the Government announced that development, this Court postponed the limited resumption of jury trials which was scheduled to commence on 20 July 2020.[10] To date, no new resumption date has been announced.
[7] As to which, see [2018] VSCA 31 and [2019] VSCA 202.
[8] For example, under the relevant Court protocol, trials originally listed in Terms 1 and 2 of 2020 will be re-listed in Term 1 and the beginning of Term 2, of 2021 (See County Court’s COVID-19 Emergency Protocol Re-Listing of Melbourne Criminal Trials.
[9] Commencing at 11.59pm on Wednesday 8 July 2020.
[10] The planned resumption related to some of the trials listed to proceed in Term 4 of 2020.
5 Against that background, it has to be said that the period of delay from the original listing date of 16 March 2020 until this matter could proceed as a jury trial is by no means certain. On the very best-case scenario, the delay would be at least 9 months or a bit more. Whilst it is to be hoped that an early date in Term 1 of 2021 could be accommodated, there is no guarantee for that re-listing scenario. It may be possible, or it may not be, in which event the delay will be even longer. How much longer cannot be known in advance and would require speculation.
6 The difference in the delay if one compares the two modes of trial is somewhat less but still significant, particularly when one has regard to the very substantial delay that has already occurred since the applicant was charged by police in December 2013. If this application is granted, a trial by judge alone could commence in very early August 2020, whereas a trial by jury could not proceed until Term 1 of 2021, at the very earliest. So, the difference in delay will be at least 6 or 7 months and quite possibly more, depending on the future course of the pandemic and the prioritisation that this trial could be given in the group of trials that are awaiting a re-listing date in Term 1 or early Term 2 of 2021.
Prosecution case at trial
7 The prosecution case against the applicant is succinctly outlined in the amended summary of prosecution opening.[11] To the extent that it is necessary to refer to it now, I note the following.
[11] Dated 14 March 2020.
8 The applicant became the complainant’s stepmother when she married his father in 1983. She allegedly favoured him over his siblings and from an early stage engaged in various acts of a grooming nature.
9 Charge 1 alleges that she instructed the complainant how to perform oral sex on her with his tongue and had him do so while in the loungeroom of the family home.
10 Charges 2 and 3 are alleged to have occurred during a later incident in the same room. The act in charge 2 is identical to that in charge 1. The act in charge 3 is one of penile-vaginal intercourse which followed kissing.
11 Charge 4 is alleged to have occurred on a later occasion, in a spare room of the family home. After kissing, the applicant encouraged and assisted the complainant to penetrate her vagina with his penis.
12 At trial, the prosecution proposes to rely on other alleged but less particularised acts of oral and penile-vaginal penetration, as well as what has come to be known as ‘the couch incident’, for both tendency (sexual interest) and context purposes.
13 The allegedly inappropriate relationship between the applicant and the complainant ended as a result of the contemporaneous discovery of the couch incident by the complainant’s father, in the following circumstances. In April or May 1988, the applicant and complainant spent the evening watching television in the loungeroom while the complainant’s father was in another room. After midnight, the complainant’s father entered the loungeroom and saw them kissing while in a state of partial undress. He asked his son whether he had seduced the applicant, or she had seduced him. He then rang the complainant’s mother and told her that he had caught the complainant and applicant in a compromising position and that the complainant was no longer welcome in his home. A period of estrangement between he and the complainant then followed.
14 In about 1987 or 1988, when aged 17 or 18, the complainant is alleged to have separately told two friends that he and the applicant had previously had sex. Later, in June 2012, he sent his father a letter in which he provided details of his previous sexual relationship with the applicant.
15 In late September 2012, the complainant first reported his allegations about the applicant to the police. In late May 2013, he provided police with a formal statement. The applicant was then charged by police in December 2013.
Defence response and issues in dispute
16 In short, the defence response is one of emphatic denial of any inappropriate relationship between the applicant and the complainant. Those denials extend to the allegation of grooming type conduct, the charged acts, and the surrounding acts relied on by the prosecution for tendency and context purposes. Put simply, the defence deny that any of those acts ever occurred.
17 From what I understand, that position has consistently been adopted by the defence throughout the entire course of these proceedings and, based on that fact and the contents of the most recent defence response dated 12 March 2020, there is no reason to think it will change.
Procedural history
18 Before turning to the relevant legislative framework and legal principles relating to trial by judge alone and the respective arguments of the parties in this application, it is necessary for me to outline the complex and lengthy procedural history of this matter.
19 On 13 December 2013, the applicant was interviewed and charged by police and then released on bail.
20 Due to the applicant’s ill-health, the committal proceedings were fragmented over a number of half-day sittings between November 2014 and January 2015. On 16 January 2015, she was ultimately committed to this court for trial.
21 The trial was listed to proceed on 6 November 2015 but had to be adjourned as a result of the applicant’s ill-health. She underwent a liver transplant shortly afterwards, in December 2015.
22 That trial proceeded as re-listed, on 31 August 2016. At that time, the applicant faced an indictment containing eleven charges, four of which were identical to those contained in the current indictment. On 9 September 2016, the jury convicted her of those four charges and acquitted her of the other seven charges.
23 On 27 January 2017, the applicant was sentenced for those four charges to a total effective sentence of 6 years and 3 months’ imprisonment with a non-parole period of 3 years and 3 months.
24 Those convictions were overturned in the Court of Appeal on 22 December 2017. On that date, the Court remitted the case to this court for a re-trial in respect of all four charges and released the applicant on bail.
25 The re-trial was listed to commence on 16 April 2018. However, the matter was placed in the Reserve List and then, on 18 April, it was adjourned to 24 September 2018 because the complainant had been hospitalised the previous day.
26 The re-trial ultimately commenced on 26 September 2018.
27 On 8 October 2018, the jury convicted the applicant of all four charges.
28 On 31 October 2018, the applicant was sentenced to the same total effective sentence and non-parole period as she had received at her first trial.
29 Then, on 17 September 2019, those convictions were overturned in the Court of Appeal which again remitted the case to this court for a re-trial. On 30 September 2019, the applicant was released on bail by a judge of this court.
30 The second re-trial was due to commence on 16 March 2020 but could not proceed on account of the intervening COVID-19 public health emergency. As a result, that trial date was vacated and the case was successively adjourned to various administrative holding dates, culminating in the present one of 18 January 2021.
31 As will be clear from the above chronology, the applicant has faced a roller-coaster ride of liberty and incarceration since being charged. She has twice been incarcerated following sentence only to be re-bailed after successfully appealing her convictions. By way of two instalments, she has already served approximately 21 ½ months in custody for this matter.[12] However, that period is still well shy of even the non-parole period she has previously received and so, as her counsel acknowledged during the course of this application, the likelihood of her receiving a sentence involving some further time in custody if convicted of these offences again, is significant.[13]
Legislative framework and relevant legal principles
[12] Those two periods spent in custody were from 27 January to 22 December 2017 and 31 October 2018 to 30 September 2019, respectively.
[13] The differential between time already served and the non-parole period is approximately 18 months.
32 In DPP v Combo[14] (‘Combo’), Chief Judge Kidd determined the first application for a trial by judge alone brought under the new Victorian provisions. His judgement sets out the relevant legislative framework and legal principles regarding trial by judge alone. Like Hollingworth J in DPP v Wang,[15] I have been very much assisted by the careful and detailed analysis which His Honour undertook, and I respectfully agree with and adopt that analysis for the purposes of this ruling. In that context, I note that the parties involved in this application were well aware of that analysis in Combo and did not seek to take issue with any aspect of it.
[14] [2020] VCC 726.
[15] [2020] VSC 438.
33 The COVID-19 Omnibus (Emergency Measures) Act 2020 was passed on 25 April 2020 and is clearly designed to ‘temporarily’ modify the laws of this state in response to the COVID-19 pandemic.[16] An important aspect of the changes made to the CPA, is the provision for trial by judge alone as a mode of trial for indictable criminal charges, providing certain specified criteria are met and it is in the interest of justice for the trial to be conducted in that manner.
[16] The relevant provisions permitting trial by judge alone are to be repealed 6 months after their commencement date, that is, on 24 October 2020.
34 Section 420D of the CPA is the operative provision and is in these terms:
Section 420D–Court may order trial by judge alone
(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; or
(b) on application by the prosecution or an accused.
(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.
35 Section 420D(1) sets out four pre-conditions which must be met before the Court’s discretion to make an order is enlivened.
36 The language used in s.420D neither creates a presumption in favour of jury trials nor any onus on either party to rebut such a presumption. The default position is, therefore, that there will be a jury trial unless and until the Court’s discretion is enlivened by the establishment of the four criteria set out in s.420D(1).[17] A party bringing an application does, however, bear an evidential onus to satisfy the Court not only that the discretion to make an order is enlivened, but also that such discretion should be exercised in their favour in the particular circumstances of the case.
[17] As noted by Chief Judge Kidd in Combo at [47] and footnote 16, this construction is also consistent with authority in other Australian jurisdictions.
37 As is clear from subsections (3) and (4) of s.420D, while the Court must, in determining whether to make an order under subsection (1), have regard to any submissions made by the prosecution, their consent is not a necessary pre-condition to the making of such an order.
Interests of Justice
38 As the Chief Judge noted in Combo, by reference to the legislation and relevant authority, the following may be said of the ‘interests of justice’ requirement in s.420D(1)(d).[18]
[18] At [48]-[66].
39 It is a broad concept and includes not just the interests of the parties, but larger questions of legal principle, the public interest and policy considerations. It is in the public interest that the integrity and proper functioning of the criminal justice system within the courts is maintained and that accused persons receive a fair trial according to law. The determination of where the interests of justice lie involves a balancing exercise by reference to the particular facts and circumstances of the case under consideration. There will often be multiple and sometimes competing interests to be considered, none of which are individually determinative of the issue.
40 Whilst, as a general rule, the mode of trial is to be treated as a neutral consideration, it cannot be considered in isolation from the issue of timing in the current COVID-19 environment. In enacting the relevant provisions as and when they did, Parliament must have intended that justice was to continue to be administered by the courts even during the current public health emergency created by COVID-19. The purpose of s.420D was to provide the courts with the option to conduct trials by judge alone, in appropriate cases.
41 In determining where the interests of justice lie, delay may be a relevant consideration on a number of levels. The interests of justice are not served if accused persons, particularly those in custody, have to wait for excessively lengthy periods before their trial can be heard. Delay may impact on the quality of evidence given and give rise to prejudice to an accused. Cases involving complainants may well highlight the desirability of expeditious justice.
42 I wish to specifically endorse and adopt what Chief Judge Kidd said about delay at [61]-[62] of his judgement in Combo, which I will set out in full now:
In truth, the balancing exercise here does not involve merely weighing the benefits of a jury trial against those of a trial by judge alone for the case in question. Rather, it concerns weighing the advantages of a judge alone trial now against those of a significantly delayed trial by jury (with all the disadvantages this delay entails).
It seems to me that within the context of this legislation, the advantages of continuing with the business of the court, and mitigating the serious issues of delay, are powerful factors in favour of ordering a trial by judge alone.
43 Whilst an accused cannot demand a trial by judge alone, their subjective views are nonetheless a relevant consideration in determining where the interests of justice lie in a particular case. In the context of the current COVID-19 emergency, such applications involve accused persons, acting on legal advice, choosing to forego their right to a later jury trial and seek an earlier trial by judge alone. Some weight needs to be accorded to the subjective preference of an accused to be tried expeditiously by a judge alone rather than experiencing a substantial wait for a trial by jury.
44 Where a fact in issue involves the application of an objective community standard, this tends in favour of a jury trial.[19] That is so because any assessment of objective community standards is best undertaken by a group of members of the community.[20] In that context, it matters not whether the objective community standard forms an element of a charge or is encompassed by a ‘defence’ to a charge.[21]
[19] R v Quami (No 14) (2016) 265 A Crim R 575, 584 [32].
[20] R v Stanley [2013] NSWCCA 124 [43]; R v Homann [2018] NSWSC 198 [36]-[37].
[21] Examples of the former include ‘indecency’, ‘obscenity’, ‘negligence’ and ‘dangerousness’, while an example of the latter is the issue of ‘reasonableness’ encompassed in self-defence.
45 One further matter which I should refer to briefly at this stage is the fact that the ultimate fact finder in this case will need to assess the credibility of the complainant. He is the central prosecution witness and it is on his evidence that this case will turn. The relevance of the credibility of witnesses in an application for trial by judge alone does not seem to have arisen for consideration in the three recent Victorian decisions to which I have already referred, although it has been considered in some other Australian jurisdictions, particularly in NSW. The law in this area is far from settled and it remains a moot point whether this factor should be considered as a neutral factor or one favouring trial by jury. I will return to analyse this issue a little later in these reasons.
Requirements of Section 420D(1)(a)-(c) are established
46 I will now address the requirements of s.420D(1)(a)-(c) of the CPA and then deal with the central question posed by this case, namely, whether it is in the interests of justice to order a trial by judge alone.
47 There was no dispute between the parties as to the first three requirements having been made out in this case.
48 As is clear from the current indictment, each of the four charges contained therein is for an offence under the law of Victoria. The requirement in s.420D(1)(a) is therefore satisfied.
49 The requirement in s.420D(1)(b) is clearly established where, as here, the applicant’s legal representatives have taken instructions and then indicated her consent to the making of an order granting trial by judge alone in the written application they have filed on her behalf.
50 The same may be said of the requirement in s.420D(1)(c). In the written application, the applicant’s legal representative has informed the court that the applicant had obtained legal advice on whether to give that consent, including legal advice on the effect of such an order.
Applicant’s submissions regarding s.420D(1)(d)
51 After some discussion and re-consideration of his written submissions at the hearing of this matter, counsel who appeared on behalf of the applicant ultimately sought to rely on the following three matters, in combination, to persuade this court that it is in the interests of justice to make an order for trial by judge alone in this case:[22]
[22] The applicant’s written submissions listed as a fourth matter, the reduced importance of the application of a community standard in this case in circumstances where the only issue was whether the acts as alleged occurred. In reality, however, this was really an argument put in answer to the prosecution’s reliance on the relevance of the application of an objective community standard as a factor tending in favour of a trial by jury.
(i) The applicant consents to an order for a judge alone trial;
(ii) The significant delay; and
(iii) There is a real chance of a mistrial and unfair prejudice to the applicant if the trial proceeds with a jury rather than with a judge alone due to the complexity of the required tendency and context directions, the conduct of the prosecutor at the previous re-trial and the recent death of the complainant’s father.
52 The applicant’s counsel submitted that the fact that the applicant has consented to an order granting a judge alone trial, should be given considerable weight.
53 In support of his submission that the issue of delay loomed as a very important consideration favouring a judge alone trial, the applicant’s counsel referred to some of the more important aspects of the procedural history of this case. As he put it, the applicant has now been subject to the very serious charges contained in this indictment for a period in excess of six and a half years. She has had to endure the uncertainty of her fate and, for 21 months of that period, experience the onerous nature of imprisonment. Those experiences have been additionally burdensome on account of her ongoing ill-health. More recently, she acted as the sole care giver for her husband (the complaint’s father) after his diagnosis with an inoperable brain tumour and then had to contend with his sudden and unexpected death from a quite separate medical condition, earlier this year.
54 The third matter relied on has two aspects to it.
55 First, the nature and complexity of the required directions in relation to tendency and context caused the first trial to miscarry and played a significant part in the re-trial miscarrying. If the next trial proceeds as a jury trial, then there will be a significant risk of misdirection or at the very least, of the jury misunderstanding such directions and reasoning impermissibly. By contrast, the latter of those risks is avoided if this matter proceeds as a judge alone trial.
56 The second aspect was put by the applicant’s counsel in this way. In the re-trial, counsel who then appeared for the prosecution,[23] called the complainant’s father as a witness in relation to ‘the couch incident’. In response to what was suggested to be a shift in his account, the prosecutor was granted leave under s.38 of the Evidence Act 2008, to cross-examine that witness. Then, in circumstances where he had not put the suggestion to the witness, prosecuting counsel later invited the jury to find that the witness had conspired and colluded with the applicant and changed his evidence quite deliberately so as to assist her. This fact, together with a misdirection by the trial judge,[24] provided the bases for the Court of Appeal to find that there had been a substantial miscarriage.
[23] A different counsel to counsel who appeared for the prosecution in this application.
[24] That judge had not presided over the earlier trial.
57 Given that the witness can no longer be called to give evidence afresh and notwithstanding that the prosecution has now indicated that they will edit the recording of that witness’s evidence before seeking to replay it at the next trial and despite their assurance that the prosecutor will refrain from making the same arguments in addressing the next jury, significant residual problems remain if such a course is adopted. Counsel submitted that it was simply not possible for that witnesses’ evidence to be edited in a way that completely removed the tenor and unfairness created by the prosecutor’s line and style of questioning. If, however, the matter proceeded as a trial by judge alone, the presiding judge would, by dint of their training and experience, be able to ignore and put to one side any potential for prejudice against the applicant.
Stance and submissions of prosecution regarding s.420D(1)(d)
58 Senior counsel who appeared for the prosecution opposed the making of an order for a judge alone trial.
59 Before referring to the matters which, in her submission, favoured a trial by jury, counsel first addressed the matters relied on by the applicant’s counsel.
60 The prosecution submitted that whilst the consent of the applicant to the making of an order was a relevant consideration, it ought not be given great weight and certainly not the degree of weight sought by the applicant.
61 As to the delay, counsel for the prosecution acknowledged that this matter did indeed have a regrettable and lengthy history. However, she submitted that such delay was not significant and should be given limited weight in all the circumstances. In making that submission, counsel concentrated on the 7 or so month delay between when this application was made and when a jury trial was likely to occur, namely in Term 1 of 2021. Furthermore, she pointed to the fact that the applicant is on bail not in custody. Counsel also made the point that given the decades which had passed between the alleged offending and the commencement of this prosecution, most if not all of the effect on the witnesses’ memory had already occurred by the time the applicant stood her re-trial. Therefore, unlike some other applications, the argument to the effect that there will be a likely adverse effect on the memory of witnesses and a resultant prejudice occasioned to the accused by a further delay until a jury trial can be held, either does not arise or is of minimal significance.
62 So, while acknowledging that delay was a relevant consideration, counsel argued that it did not loom large as a factor and did not, either alone or in combination with other relevant considerations, justify the making of an order for a trial by judge alone.
63 In response to the third matter relied on by the applicant’s counsel, the following points were made by the prosecution.
64 First, the required directions relating to tendency and context are not as complex or problematic as was suggested. And, they are not as complex or extensive as those given in many other cases of this type. In fact, they have become simpler and clearer now that the prosecution seek to rely on the couch incident for both tendency and context purposes and by reason of the ‘roadmap’ that the Court of Appeal have effectively provided in their analysis at the most recent appeal. So, there is simply no reason to think, let alone find, that the judge who presides over the next trial will fall into either of the errors that have occurred in the past, whether by way of inviting the jury to engage in erroneous reasoning in relation to the couch incident or by conflating the directions in relation to tendency and context. There is simply no basis to think that the next trial judge would misapply the law. Equally, there is no reason to think that once appropriately directed, the jury would misunderstand or misapply those directions.
65 Second, the question as to whether the applicant can receive a fair trial if the recorded evidence from her now deceased husband is placed before a jury in the next trial, is not a matter that I as opposed to the ultimate trial judge should determine. The appropriate course is for the applicant’s counsel to make application to the next trial judge for further editing to be undertaken or even for the exclusion of that evidence. If the latter application is unsuccessful, then any necessary directions will no doubt be discussed by the judge with counsel and ultimately given to the jury.
66 Counsel for the prosecution relied on the following three matters which she submitted pointed in favour of a trial by jury:
(i) The requirement for the fact finder to apply an objective community standard in determining whether the two charges of committing an act of gross indecency had been proven;
(ii) The case will turn on an assessment of the credibility of a central prosecution witness, namely the complainant; and
(iii) The necessity for a consistent approach to be taken in relation to the mode of trial so as to promote public confidence in our criminal justice system.
67 In relation to the first matter, counsel quite fairly acknowledged the point made by the applicant’s counsel, namely, that in this case, unlike some others, the defence are very unlikely to take issue with the nature of the alleged acts if proven to have occurred. The issue in dispute for those two charges is whether the prosecution can prove that the acts on which they rely in fact occurred rather than whether, if they did, they constituted acts of ‘gross indecency’. In the end, prosecuting counsel explained that whilst the application of an objective community standard favoured trial by jury, it was not as significant a point in this case compared to some others and was not her strongest argument given the particular circumstances of this case.
68 Counsel sought to place significant reliance and weight on her remaining two arguments, however.
69 The first related to the undisputed fact that the prosecution case hinges on the evidence of the complainant, and in particular, on his credibility. It was put that where the credibility of a witness is an issue in the trial, that factor operates in favour of a jury trial. In support of that argument, counsel referred to what Johnson J had said in the NSW case of R v McNeil (McNeil).[25] In that case, an application for a trial by judge alone was refused. After first observing that the word credibility did not appear in the relevant provision of the NSW legislation governing applications for trial by judge alone, Johnson J made the following observations:
[25] [2015] NSWSC 357.
Where the credibility of witnesses arises as an issue in the trial, in my view this factor may operate in favour of a jury trial. This is so whether an assessment of credibility involves application of objective community standards or not. Such a trial will involve 12 members of the public (as opposed to one Judge) bringing their experience to bear in determining if the witnesses are giving credible and reliable evidence.
Like Latham J in R v Dean at [59], I would call in aid the statement of Lord Devlin in Trial by Jury (1966), page 140, cited by Heydon J in AK v Western Australia at 472 [94]:
“Secondly, Lord Devlin also saw juries as being superior to judges in assessing credibility [78]:
‘[T]he jury is the best instrument for deciding upon the credibility or reliability of a witness and so for determining the primary facts. Whether a person is telling the truth, when it has to be judged, as so often it has, simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible. The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable. Moreover, the judge, who naturally by his training regards so much as simple that to the ordinary man may be difficult, may fail to make enough allowance for the behaviour of the stupid. The jury hear the witness as one who is as ignorant as they are of lawyers' ways of thought; that is the great advantage to a man of judgment by his peers’.”
Insofar as it would seem that there are issues as to the credibility on the part of witnesses to be called in the Applicant’s trial, in my view this factor may be taken into account in support of retaining the s.131 procedure of trial by jury.[26]
[26] Ibid, at [102]-[104].
70 The remaining argument advanced by the prosecution was to the following effect. This case is unusual in that there have already been two previous jury trials which have involved significant community participation. In such circumstances, so the argument went, it is in the interests of justice for a consistent approach to be taken in relation to the pending re-trial. To allow a jury drawn from the community to participate and decide this case for a third time would promote public confidence in the criminal justice system.
71 In response to questions from the Bench, counsel indicated that her argument related to the process rather than the result. As she readily acknowledged, it was open to the next jury, just as it was to a judge in a judge alone trial, to acquit or convict the applicant, depending on what assessment was made of the complainant’s credibility and reliability. Furthermore, counsel acknowledged that it could not be put as a blanket principle; there will no doubt be some cases in which, despite the fact that a jury has previously determined the matter, it is nonetheless appropriate for any subsequent re-trial to proceed as one by judge alone.
Reply by applicant’s counsel
72 By way of reply to the prosecution’s submissions, counsel for the applicant made the following submissions.
73 The prosecution had unduly focussed on the more recent aspect of delay and as a result had undervalued the significance of the delay in this case. The fact that the complainant’s credibility was in issue does not point in favour of a jury trial but rather, should be treated as a neutral factor. And, finally, he submitted that there was no proper basis to treat the fact that there had been two previous jury trials as a relevant consideration, let alone one that militated in favour of the same mode of trial being adopted again.
Analysis
74 As I have already indicated, I am satisfied that the essential pre-conditions set out in s.420D(1)(a)-(c) of the CPA have been made out.
75 I am also satisfied that the remaining pre-condition contained in s.420D(1)(d) is established as I am strongly of the view that it is in the interests of justice that an order be made under s.420D of the CPA, that the applicant be tried by judge alone.
76 In my view, there are a combination of factors which favour the making of such an order. Two of the most important factors relate to the need for the administration of justice to continue in the current COVID-19 environment and the delay.
77 Both of these points were influential in Chief Judge Kidd’s decision in Combo.[27] Arguably, the issue of delay in this case is an even more powerful consideration notwithstanding that this applicant is currently on bail whereas Mr Combo was in custody.
[27] See for example, at [69]-[71] of the judgement.
78 There is, as contemplated by the relevant legislation, a need for trials to continue in this state and to be seen to continue despite the current suspension of jury trials.
79 The factor of delay in this case is a very powerful consideration which points very strongly in favour of a judge alone trial. I have already set out the nature and scope of that delay, both generally and by way of a relative comparison between the two modes of trial.
80 In my view, this court cannot undertake that relative comparison without having regard to the broader delay in this case. There is a very distinct difference, all other things being equal, between an accused having to wait at least 7 months and possibly longer for their trial to be first tried by a jury and having to wait the same period for their third jury trial to commence more than seven years after being charged by police. Whichever way you view it, that delay is a significant one and quite out of the ordinary. Even more so, in my view, when none of that delay is attributable to the applicant. I accept, without hesitation, that it must have been an arduous process for her to have endured and one that has no doubt been exacerbated by her own ill-health and the illness and ultimate passing of her late husband. I also accept that the delay has weighed heavily on the applicant and will continue to do so if her application is not granted. Clearly, she is genuinely desirous of facilitating the final resolution of this matter at the earliest possible date notwithstanding her own health issues and her likely fate if convicted again.
81 I have also had regard to the fact that the applicant has, after receiving legal advice, consented to forego a later jury trial in favour of an earlier trial by judge alone.
82 I am not inclined to accept or give any weight to either aspect of the third factor relied on by the applicant’s counsel. In relation to the first aspect, I certainly do not assume or allow for the fact that the judge presiding over the next re-trial will or may fall into error regarding the appropriate directions to give or that any jury would be apt to misunderstand or misapply any directions to the applicant’s prejudice. In my view, the points made by the prosecution when addressing this matter were well made. In relation to the second aspect, I should note that neither party expected or submitted it was appropriate for me to make any final determination as to the question of admissibility of the deceased witnesses’ evidence or indeed, whether and if so what editing should occur and what directions could be given to a jury in order to ameliorate or cure any problems that existed. All I need to say to dispose of this point is that if there is a potential problem, the answer and remedy must be sought from and provided by the ultimate trial judge not me. That trial judge will no doubt consider the overarching need to ensure that the applicant receives a fair trial and can take any number of appropriate steps to facilitate that, if necessary. Ultimately, it is up to the applicant’s counsel to pursue those matters at a later time rather than in this application.
83 In relation to the arguments raised by the prosecution, I make the following observations.
84 First, the fact that the two charges of gross indecency contain an element that requires the application of an objective community standard points in favour of a jury trial. In my view, defence counsel cannot formally admit that a charged act, if proven, was grossly indecent. But, even if that were possible, as the Court of Appeal have recently noted in Steele v Western Australia, a foreshadowed admission in relation to indecency is a non-binding undertaking when made during an application for trial by judge alone hearing.[28] The same may well be the situation in respect of any indication to the effect that while not admitted, the element will not be put in issue at trial.
[28] [2018] WASCA 133, [42].
85 That said, I consider there is still a need to consider the particular facts and circumstances of this case when determining what weight to give to this factor. In my view, this case can be contrasted to some other cases in at least three respects.
86 First, the application of an objective community standard relates to only some of the charges not all of them and to the least serious of the two types of charges brought against the applicant. Second, there is an already established and consistent approach by the defence to this issue, which was not the situation in Steele’s case. Here, it has never been in issue at any stage of the proceedings and that will very likely remain the case. Third, whilst it will be a matter for the ultimate fact finder to decide, the very nature and circumstances in which these two acts are alleged to have occurred would, if proven and when considered in the context of the likely approach to be adopted by the defence at trial, present very little if any impediment to a finding that those acts were relevantly indecent. Accordingly, whilst I am prepared to accept that this factor is one that points in favour of a jury trial, it is not as strong a consideration as in many other applications where the issue of the need to apply an objective community standard is raised. By way of a contrasting example to illustrate the distinction, the same could not be said in a contested application for trial by judge alone where the central issue in the trial was going to be self-defence, and in particular, whether the accused had acted ‘reasonably’.
87 In my view, the second factor relied on by the prosecution should be treated as a neutral consideration.
88 As I have already noted, in an application such as this, the significance of the fact finder at trial having to assess one or more witnesses whose credibility is in issue appears not to have been authoritatively settled in this country, and certainly not in NSW.
89 The judgement of Johnson J in McNeil, to which I have already referred, was handed down on 2 April 2015. For whatever reason, no reference was made in that case to the earlier and contrasting view which Hammill J had reached on 19 March 2015 in R v Simmons (No 4).[29]
[29] (2015) 249 A Crim R 120.
90 In that case, Hammill J observed that it was difficult to discern a clear consensus in the Australian authorities in support of a proposition that where credibility issues are central to a trial, that is a factor that militates in favour of a jury trial.[30]
[30] Ibid, at [75].
91 After referring to what had been said in a number of other cases, including R v Belghar,[31] Coates v Western Australia,[32] and R v Farrow,[33] his Honour then considered the NSW District Court case of R v Tasich.[34] In that case, Knox DCJ had expressed the opinion that where there were attacks on the credibility of public officials and members of parliament, “it is an important matter for the administration of justice that the truth or otherwise of such purported attacks need to be determined in open court by the community as represented by the jury.” Immediately after referring to that case, Hammill J made the following observation:
I allow for the possibility that there are cases where such an approach may be correct. However, for the most part, the fact that a trial involves issues of credibility is a neutral factor when it comes to determining whether it is in the interests of justice to make an order for trial by judge alone. As was stressed in R v Belghar and Coates v Western Australia, each mode of trial has its advantages, strengths and weaknesses. While a jury has the advantage of being able to discuss the issues and the requirement for unanimity provides strength to its decision, a judge has the training and experience of making difficult decisions on question of credibility, putting aside matters of emotion, on an almost daily basis.[35]
[31] (2012) 217 A Crim R 1.
[32] [2009] WASCA 142.
[33] [2014 NSWSC 1781.
[34] (2012) 14 DCLR (NSW) 261.
[35] (2015) 249 A Crim R 120, 138-9 [82].
92 It is interesting to note that each of Johnson J and Hammill J appear to have been prepared to attach at least some qualification to their respective conclusions; for example, the former used the word “may” rather than “must” while the latter allowed for a different approach in an appropriate case and concluded that “for the most part” credibility is a neutral factor.
93 The approach taken by Hammill J in [82] of his judgement in Simmons (No 4) was quoted with approval by Adams J in the NSW Court of Criminal Appeal case of Redman v R (‘Redman’).[36] That decision was handed down on 27 May 2015, so a short time after the decision of Johnson J in McNeil. In the very same paragraph in which he quoted from what had been said in Simmons (No 4), Adams J made the following observation of his own:
The supposition that a jury is a better arbiter of relative credibility than a judge is reflective of assumptions rather than experience and lacks sufficient substance to be placed in the scales.[37]
[36] [2015] NSWCCA 110.
[37] Ibid, at [14].
94 For the sake of completeness, I note that the other two members of the Court in Redman, while concurring with Adams J in the ultimate result, declined to express any view on the credibility issue.
95 Hammill J returned to this topic in the later case of R v Quami (No 14).[38] That case was expected to involve a sustained and significant attack on the credibility of the informant witness when the matter came on for trial. In the application for trial by judge alone ruling, his Honour had this to say:
[38] (2016) 265 A Crim R 575.
[39] As I indicated in Simmons (No 4), I am of the view that an assessment of credibility is not a matter in relation to which either a judge sitting alone or a jury of twelve enjoys a clear advantage. It is, in my opinion, a neutral consideration in an application such as the present.
After expanding upon the relative perceived advantages of each mode of trial, his Honour continued as follows:
[40] I remain of the view that I expressed in Simmons (No 4). That view found favour with Adams J in Redman v The Queen at [14]-[15]:
…
[41] However, the other judges who sat on that appeal (Hoeben CJ at CL and RA Hulme J) did not need to consider the issue and the matter remains controversial. For example, Johnson J expressed the contrary view in R v McNeil at [102]-[105].
[42] I approach the present application on the basis that the fact that the trial will be determined largely on an assessment of the credibility of the Crown witness is not a matter that militates either in favour or against the making of the order sought by the accused. I do not proceed on the basis that there is some special advantage enjoyed by a jury in making assessments of credibility.
96 To my mind at least, the view expressed by Hammill J in Quami (No 14) appears to be more emphatic and less qualified than the view he had expressed earlier in Simmons (No 4).
97 In any event, even in a case that required very significant witness credibility assessments to be undertaken at trial, his Honour was prepared, in determining the application for trial by judge alone, to treat that factor as a neutral consideration rather than as one favouring a jury trial.
98 In my view, the fact that the current trial will require the ultimate fact finder to assess the credibility of a crucial witness is a factor that ought to be treated as a neutral consideration. In that regard, and respectfully, I prefer the approach and views of Hammill J and Adams J over those of Johnson J. Even if it be the case that, as a matter of principle, the approach should allow for some exceptions, I do not consider this case to be one of those. In my view, there is no warrant to treat the credibility factor as one favouring a trial by jury in this case.
99 The question posed by the prosecution’s final factor is whether, in a multiple trial case involving the same charges, there is a public interest in adopting the same mode of trial throughout the entire course of the proceedings. As prosecuting counsel framed the argument, a consistent approach to the mode of trial was not only preferable but also warranted in the interests of justice because it would engender public confidence in the criminal justice system.
100 At the very outset, I should note that the recently enacted Victorian provisions that created the option of trial by judge alone do not, either expressly or impliedly, exclude or limit an accused who has previously been tried by a jury and is facing a re-trial, from making an application for trial by judge alone under s.420D. That conclusion accords with logic and common sense, as well as with fairness and justice. To deny certain re-trials from being held as judge alone trials may well hamper rather than facilitate the administration of criminal justice. A pending re-trial for which there had been an extreme level of very highly prejudicial publicity following conviction at an earlier jury trial is a good example.
101 As the prosecutor acknowledged during the course of her submissions, the fact that this is a re-trial does not prevent this court from ordering a trial by judge alone providing it is satisfied that it is in the interests of justice to do so.
102 So, the question remains, is this third point relied on by the prosecution a relevant factor for a court to consider when determining an application for trial by judge alone, and, if so, what weight and significance should it be given in the particular circumstances of this case?
103 My tentative view is that it is simply not relevant.
104 But, even allowing for the fact that it is, I would not give it much weight in the circumstances of this case, and it would certainly not lead me to exercise my discretion any differently.
105 In my view, it is not as stark a proposition as the prosecutor suggested. It is not the case that public confidence in the criminal justice system could only be maintained if, like in the previous two trials, a jury is allowed to hear and determine this case. Whilst such continued community participation has its advantages, it should not be forgotten that the accused, the complainant and the community generally, will have to wait for a significant period before that community participation is even possible given the current state of the COVID-19 pandemic.
106 When considering this issue of public confidence in the criminal justice system, it seems to me that what needs to be considered is an ‘informed public’. An informed public would have knowledge of the fact that parliament has seen fit to enact emergency legislation to allow for some trials to be conducted by judge alone during a period when jury trials cannot be conducted, and of the rationale for them doing so. The public interest can be served by serious criminal charges being dealt with as expeditiously as possible. When viewed in that light, it may well be said that it is not the case that public confidence in the criminal justice system can only be maintained if the re-trial is decided by a jury just as it was in the two previous trials, particularly when the final resolution of this problematic and aged case would need to be delayed significantly in order to do so.
107 By way of some final observations, I note the following.
108 There is nothing to suggest that this re-trial cannot be conducted practically and fairly as a judge alone trial in the very near future. The prosecution has indicated that it proposes to call the complainant afresh in accordance with his clear wishes, and, with the possible exception of the informant, the other relevant evidence can be given remotely by witnesses or adduced by playing a recording of their evidence from the previous re-trial.
109 The complainant in this case has been informed of the relative timeframes in which the two modes of trial could proceed. He has indicated to the prosecution that he has no preference for either mode notwithstanding that difference. His position is a neutral one. I do not doubt that he is of that view but would only make this observation. One cannot accurately predict what will happen in relation to the applicant’s health between now and the early part of next year. If, as appears to be the case, the applicant wishes to have her re-trial proceed now, and her application for trial by judge alone is granted, that will very likely ensure that this case can be finally resolved, one way or the other, in the very near term. On the other hand, it would be a regrettable situation for many reasons, if this re-trial was delayed until next year to allow for a jury trial and then, in the intervening period, the applicant’s health deteriorated to the extent where the re-trial was further delayed or even worse, could not proceed at all.[39]
[39] As the two recent medical reports from the Victorian Liver Transplant Unit make clear, the applicant was hospitalised twice earlier this year and continues to experience ongoing and significant issues with her health (see exhibit 2 on the application).
110 Having carefully considered and weighed all of the relevant considerations in this application, I am firmly of the view that the interests of justice lie in favour of making an order for a trial by judge alone. In all of the circumstances, and in particular, by reason of the significant delay involved in this case, it is appropriate to grant the application made by the applicant and to make the order sought under s.420D of the CPA.
Orders
111 Accordingly, I make the following orders.
112 Pursuant to s.420D(1) of the CPA, I order that the charges of committing an act of gross indecency in the presence of a child under the age of 16 years and of incest contained in Indictment E11831906.2, be heard and determined by a judge alone, without a jury.
113 The trial will remain listed for mention at 10.00am on Monday 3 August 2020. Given the ruling I have just made, that mention will be presided over by the judge allocated to hear this trial. At that mention, if not before, counsel should be prepared to identify the nature and scope of any outstanding pre-trial issues and expect a timetable to be fixed for the hearing of those issues and the trial proper.
114 Subject to any contrary view of the ultimate trial judge, the mention will proceed by way of a Web-ex hearing, but the applicant will need to appear and can do so, remotely, from her counsel’s chambers. Her bail will continue on the same terms and conditions until then.
115 It is a matter for the ultimate trial judge as to whether the applicant is arraigned at that mention hearing, but counsel and the applicant should be prepared for that possibility.
9
13
2