DPP v Truong & Bui
[2020] VCC 806
•15 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-01299
CR-19-00486
DIRECTOR OF PUBLIC PROSECUTIONS
| v |
PHUONG TRUONG & THI LANG BUI
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | ON THE PAPERS |
DATE OF JUDGMENT: | 15 June 2020 |
CASE MAY BE CITED AS: | DPP v Truong & Bui (Applications for trial by judge alone) |
MEDIUM NEUTRAL CITATION: | [2020] VCC 806 |
REASONS FOR RULING
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Subject: Criminal Law – Application for trial by judge alone.
Catchwords: Applications for trial by judge alone under COVID-19 emergency provisions – Consent by each accused and prosecution - Interests of justice – Delay – Narrow issues in dispute - Short duration of trial.
Legislation Cited: Drugs Poisions and Controlled Substances Act 1981, ss 72, 72A, Schedule 11; Criminal Procedure Act, s 420D; COVID-19 Omnibus (Emergency Measures) Act 2020.
Cases Cited: R v Simmons (No 4) (2015) 249 A Crim R 120; R v Rayney (2011) WAR 383; Western Australia v Evans [2012] WASC 87; R v Fardon [2010] QCA 317; DPP v Combo (Application for a trial by judge alone) [2020] VCC 726; R v IB (No 3) [2020] ACTSC 103; Landsman v The Queen (2014) 88 NSWLR 534; Western Australia v Edwards [2018] WASC 419; R v UD [2020] ACTSC 90; Coates v Western Australia [2009] WASCA 142; Arthurs v Western Australia [2007] WASC 182; R v BD [2020] NSWDC 150; R v Johnson [2020] NSWDC 153; R v Quami (No 14) (2016) 265 A Crim R 575; R v Homann [2018] NSWSC 198; R v Gittany [2013] NSWSC 1503; R v Stanley [2013] NSWCCA 124; Dupas v The Queen (2010) 241 CLR 237.
Ruling: Applications for trial by judge alone granted.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z Menon | Ms Abbey Hogan, Solicitor for Public Prosecutions |
| For the accused Truong For the accused Bui | Mr L Barker Mr R Lawrence | Valos Black & Associates Pica Criminal Lawyers |
HIS HONOUR:
Preliminary
1 Applications for a trial by judge alone have been made by two co-accused, Mr Phuong Troung and Ms Thi Lang Bui, pursuant to s 420D of the Criminal Procedure Act 2009 (‘the CPA’), to have indictable charges alleged against them concerning cultivation of cannabis tried by a judge alone.
2 These matters were originally listed for trial on 1 June 2020. As a result of the COVID-19 pandemic, jury trials were suspended in March 2020. Consequently, that trial date was vacated by administrative orders. Instead, a mention has now been listed on 27 July 2020 for both accused.
3 Both the accused filed applications confirming they consented to the making of the order and had received legal advice. All parties filed written submissions.
4 The parties were content for me to determine this application on the papers, and to deliver my ruling electronically.
5 The parties agreed that the trial estimate for this matter, should it proceed by trial by judge alone, was between 3 and 5 days.
6 Notwithstanding that each of the accused and prosecution agree that an order for a trial by judge alone ought to be made, it still remains for the Court to determine for itself whether it is the interests of justice to do so.
Facts and trial issues
7 Both accused have been charged on the same Indictment[1], with one charge each of cultivation of cannabis, in a quantity not less than a large commercial quantity[2].
[1]Indictment C1812182.
[2]Pursuant to s 72 of the Drugs, Poisons and Controlled Substances Act 1981.
8 On 10 October 2018 police executed a search warrant at a commercial factory located in Truganina.
9 Upon entry into the factory, three individuals were allegedly observed running away. Two of those individuals were allegedly identified as the accused Truong and the accused Bui.[3]
[3]The third individual was identified as Bradley Lee, a co-accused, has been arraigned and entered a plea of guilty to one charge of cultivate not less than a large commercial quantity of cannabis. Lee’s plea hearing will be conducted on 14 July 2020.
10 Located within the factory were 1,047 cannabis plants, at various stages of maturity. The large commercial quantity applicable to cannabis is 1,000 plants.[4]
[4]Pursuant to Schedule 11, Part 2 of the Drugs, Poisons and Controlled Substances Act 1981.
11 The prosecution case is that Truong and Bui are each ‘principal offenders’ and that the form of cultivation engaged in by Truong and Bui includes growing, tending or nurturing.
12 By his defence response, Truong has indicated that he will plead guilty to the statutory alternative offence of cultivating cannabis in a quantity not less than a commercial quantity.[5] Truong admits that he undertook acts constituting cultivation, but that he did so as a ‘crop sitter.’ Truong disputes that he had an intention to cultivate in a large commercial quantity of cannabis.
[5]Pursuant to s 72A of the Drugs, Poisons and Controlled Substances Act 1981. The commercial quantity applicable to cannabis is 100 plants.
13 By her defence response, Bui denies knowing that cannabis was being grown, and disputes that her actions constitute acts of cultivation or that she intended to cultivate cannabis in an amount not less than a large commercial quantity.
14 Truong has remained on remand for this matter. Bui was granted bail and has been on trial bail since 12 March 2019.
Arguments of each accused
15 Both Truong and Bui submit that the making of a trial by judge alone order is in the interests of justice[6] and that the Court should exercise its discretion to make that order.
[6]Pursuant to s 420D(1)(d) of the Criminal Procedure Act 2009.
16 In written submissions, counsel for Truong relied on a combination of reasons:
· First, a person charged with a serious criminal offence is entitled to expeditious justice and the timely finalisation of pending charges. Reliance was placed upon ss 21(5) and 25(2)(c) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).
· Second, the accused has made an application for a trial by judge alone and is prepared to forego his right to trial by jury, after having received legal advice.
· Third, the issues for Truong at trial are very narrow.
· Fourth, and related to the third, the trial will be of a very short duration, about 3 days.
17 In written submissions, counsel for Bui relied on a combination of reasons:
· First, the timely determination of serious criminal charges, without undue delay, is in both the public interest and the interests of the accused.
· Second, that it is the clear intention of Parliament in legislating for trial by judge alone that Courts continue to do their trial work, where possible.
· Third, that ‘unless a trial by judge alone is likely to be unfair to an accused or the Crown, it is in the interests of justice that courts continue to hear trials’.
· Fourth, that there is a prejudicial assumption that exists generally within public discourse, regarding people of Vietnamese background and the cultivation of cannabis.
· Fifth, in this case a judge alone trial would provide an important advantage over a jury trial, in that transparent and detailed reasons would be provided regarding the questions of knowledge and intention.
Position of the Prosecution
18 The prosecution consents to the making of an order for trial by judge alone for each of the trials of Truong and Bui, and broadly agrees with submissions made on behalf of each accused.
19 The prosecution also emphasised that this case did not involve the application of objective community standards.
Previous consideration of legislation and legal principles
20 I have already considered in some detail the relevant legal principles regarding trial by judge alone in DPP v Combo (Application for trial by judge alone).[7] This case was the first time an application for a trial by judge alone was determined in Victoria under the relevant legislation.
[7][2020] VCC 726 (‘Combo’).
21 For the purposes of this ruling, I adopt what I have said previously regarding the legislation and legal principles concerning judge alone trials in Combo.
Legislative framework
22 The purpose of the COVID-19 Omnibus (Emergency Measures) Act 2020 is to ‘temporarily change the operation of [the] Act in response to the COVID-19 pandemic’ to allow for trial by judge alone.[8]
[8]Section 420A of the Criminal Procedure Act 2009.
23 The operative provision is section 420D of the CPA which is in the following 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.
Some preliminary observations about s 420D
24 Section 420D empowers these Courts to make an order that an indictable charge (or charges) be tried without a jury, before a judge alone, where the Court is positively satisfied that the following essential pre-conditions are met:
· First, the charges are offences are under Victorian law and that these offences are being tried on indictment.[9] No Commonwealth offences tried on indictment can be tried by judge alone[10]; and
[9]See also s 420B of the CPA, which provides that an order can be made where the accused has been committed for trial under Part 4 of the CPA regarding the charge, or where the Director of Public Prosecutions has directly indicted the accused to stand trial for the charge.
[10]See Explanatory Memorandum, COVID-19 Omnibus (Emergency Measures) Act 2020 [57], which confirms that ‘These new provisions will not apply to charges for Commonwealth offences.’ Section 80 of the Commonwealth Constitution requires that Commonwealth offences when tried on indictment must be tried by jury.
· Second, that each accused has given their consent to the making of an order for trial by judge alone; and
· Third, that each accused has received legal advice on whether to give that consent, including advice as to the effect of the Court making an order under s 420D; and
· Fourth, that it is in the interests of justice to make the order.
25 Once the essential pre-conditions in s 420D(1) are met, the Court’s discretion to make an order for trial by judge alone is enlivened.[11]
[11]Parliament has chosen to use the word ‘may’, as distinct from the word ‘must’. See s 45 of the Interpretation of Legislation Act 1984. Section 45(1) deems that where the word ‘may’ is used to confer power in an Act, the word may ‘is to be construed as meaning that the power so conferred may be exercised, or not, at discretion.’
The question of presumption in favour of jury trial and legal onus
26 As I concluded in Combo, I do not construe s 420D of the CPA as creating any presumption in favour of jury trials or a corresponding legal onus on either party to rebut any such presumption.[12] I adopt in full my reasoning in Combo.[13]
[12]This construction is also consistent with the authority in other Australian jurisdictions. See, for example, R v Belghar (2012) 217 A Crim R 1, 25 [96]; R v Stanley [2013] NSWCCA 124 [42]; R v Simmons (No 4) (2015) 249 A Crim R 120, 132 [57]; R v Rayney (2011) WAR 383, 387-388 [17]; Western Australia v Evans [2012] WASC 87 [4]. Compare: R v Fardon [2010] QCA 317 [81] in which it was stated (in respect of Queensland legislation) that an onus did exist on the applicant to prove that their case was ‘exceptional’ such as to justify a trial by judge alone, not by trial by jury.
[13]Combo [2020] VCC 726 [45]-[47].
Interests of justice
27 Much of what I am about to say about the expression ‘the interests of justice’, I said in Combo,[14] however, some of it bears repeating.
[14]Combo [2020] VCC 726 [48]-[66]. Further, as I outlined in Combo [2020] VCC 726 [42]-[44], the authorities from other Australian jurisdictions, which have extensively considered the expression ‘interests of justice’ within the context of judge alone trials, provide a source of guidance as to how the Court might approach this new legislation
28 The expression ‘the interests of justice’ is ‘broad and derives substance from the context in which it is used.’[15] 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.’[16] 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.[17] Just where the interests of justice lie will be ascertained by reference to the facts and circumstances of the particular case.[18] No single factor will be determinative.[19]
Mode of trial
[15]R v IB (No 3) [2020] ACTSC 103 [94].
[16] Landsman v The Queen (2014) 88 NSWLR 534, 550 [69].
[17]See Western Australia v Edwards [2018] WASC 419 [9](c); R v UD [2020] ACTSC 90 [12].
[18]R v Stanley [2013] NSWCCA 124 [42]
[19] Landsman v The Queen (2014) 88 NSWLR 534, 550 [69]-[70].
29 For the reasons I gave in Combo,[20] there is nothing in the Victorian legislation which would suggest that one mode of trial per se is to be preferred over the other. It is a neutral consideration.[21] However, one cannot consider the mode of trial in isolation from the issue of timing.
The need for administration of justice to continue
[20]Combo [2020] VCC 726 [50]-[54].
[21]R v Belghar (2012) 217 A Crim R 1, 6-15 [24]-[38]; R v Simmons (No 4) (2015) 249 A Crim R 120, 132, 138-139 [82]; Coates v Western Australia [2009] WASCA 142 [9]-[12] .
30 As I stated in Combo,[22] it was the intention of Parliament, in enacting the trial by judge alone provisions, that justice must continue to be administered by the courts, even during the current public health emergency of COVID-19.[23]
Delay
[22]Combo [2020] VCC 726 [54].
[23]R v BD [2020] NSWDC 150 [3]; R v UD (No 2) [2020] ACTSC 90 [29]-[30]; [54]; R v Johnson [2020] NSWDC 153 [19]-[21]; R v Coleman [2020] ACTSC 97 [41].
31 As a result of the COVID-19 pandemic, jury trials have been suspended in Victoria and that has been the case since March 2020. Jury trials which were listed between March and the beginning of October this year have been or will be vacated[24] and will be delayed in the order of 9 months or more.[25] Accepting that there will be a resumption of a limited number of jury trials this year, the fact remains that the vast majority of trials set down prior to October 2020 will still be significantly delayed.[26]
[24]See the County Court’s COVID-19 Emergency Protocol Re-Listing of Melbourne Criminal Trials.
[25]See the County Court’s COVID-19 Emergency Protocol Re-Listing of Melbourne Criminal Trials.
[26]See the County Court’s COVID-19 Emergency Protocol Re-Listing of Melbourne Criminal Trials.
32 In determining where the interests of justice lie, delay may have relevance in a number of respects, which I outlined in Combo.[27] Amongst other things, it is not in the interests of justice that accused persons, particularly those in custody, must wait for excessively long periods before coming to trial.[28]
[27]Combo [2020] VCC 726 [56]-[62].
[28]R v UD (No 2) [2020] ACTSC 90 [23].
33 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). This is a powerful factor in favour of ordering a trial by judge alone.
Community standards
34 Where a fact in issue involves an application of a community standard, this tends in favour of a jury trial.[29] That is because an ‘assessment of objective community standards is best undertaken by a group of members of the community.’[30] In some jurisdictions, this preference is legislated.[31]
Subjective views of the accused
[29]R v Quami (No 14) (2016) 265 A Crim R 575, 584 [32].
[30]R v Homann [2018] NSWSC 198 [36]-[37]; R v Stanley [2013] NSWCCA 124 [43].
[31]See for example, s 132(5) of the Criminal Procedure Act 1986 (NSW) R v Quami (No 14) (2016) 265 A Crim R 575, 584 [32]
35 As I stated in Combo,[32] the fact that an accused person has acted on legal advice to forego their right to a later trial by jury and seek an order for an earlier trial by judge alone is a relevant matter.[33]
Prejudicial material in the public
[32]Combo [2020] VCC 726 [65]-[66].
[33]Arthurs v Western Australia [2007] WASC 182, [79]-[80]; Western Australia v Raney (2011) WAR 383, 389 [26] 391 [35]; R v Belghar (2012) 217 A Crim R 1, 26-27 [99]-[102]; R v Stanley [2013] NSWCCA 124 [42]; R v Quami (No 14) (2016) A Crim R 575, 582 [22]; R v Gittany [2013] NSWSC1503 [7].
36 The law accepts that, even in the face of prejudicial material, with appropriate safeguards, juries can be fair and impartial judges of the facts.[34] This follows from the general, but not absolute, assumption that juries will be true to their oaths or affirmations, follow directions given to them, and therefore not be affected by prejudice.[35]
[34]Dupas v The Queen (2010) 241 CLR 237, 248 [28].
[35]Dupas v The Queen (2010) 241 CLR 237, 247 [22]; R v Quami (No 14) (2016) 265 A Crim R 575, 587 [48].
37 There might be a case where prejudicial material in the public space may compromise the ability of a jury to bring a fair and impartial mind to determination of guilt.[36] This will be rare and exceptional case.[37]
[36]Dupas v The Queen (2010) 241 CLR 237, 248-9 [29].
[37]Dupas v The Queen (2010) 241 CLR 237, 250 [33].
38 That type of case may tend in favour of a trial by judge alone given that judges, by virtue of their training and experience, can more readily put prejudice to one side.[38]
[38] R v Quami (No 14) (2016) 265 A Crim R 575, 587 [46]. R v Simmons (No 4) (2015) 249 A Crim R 120, 131 [53].
Analysis and conclusions
39 I am satisfied that the essential pre-conditions contained in s 420D(1)(a)-(c) of the CPA are made out.
40 I am also satisfied that is in the interests of justice that an order that both accused be tried by a judge alone be made, pursuant to s 420D(1)(d) of the CPA.
41 There are number of reasons which compel me to this conclusion.
42 First, as I said in Combo, importantly, the legislation clearly contemplates that there is a need for trials to continue, and be seen to continue, despite the suspension of jury trials.
43 Second, the delay arising out of the suspension of jury trials weighs strongly in favour of a judge alone trial for each of the accused. That is so because:
· I accept that generally there is a powerful and obvious public interest in people accused of serious crimes having their matters finalised expeditiously, for the reasons I have detailed above.
· The jury trials of the accused were originally set down for 1 June 2020. On the current listing approach, broadly speaking, these jury trials would now be unlikely to be heard or conducted before March or April next year.[39] This amounts to a minimum delay in the order of 9 to 11 months.
[39]See the County Court’s COVID-19 Emergency Protocol Re-Listing of Melbourne Criminal Trials.
· In Truong’s case, although any time he is currently serving will be applied to the sentence he will receive, it is nevertheless in the public interest that the matter be finalised in a timely way. Further, in Truong’s case he remains a remand prisoner until he can be sentenced. This will limit his access to services and affects the way he is managed in prison. The continued uncertainty about when he will become a sentenced prisoner will be an additional burden upon him.
· In Bui’s case, although she is on bail, these are serious charges and having regard to the likely delay, they would be outstanding over an extended period, in circumstances where she is presumed innocent.
44 Accepting the general principle that it is in the public interest that people charged with serious offences access expeditious justice, and its application this case, I do not need to engage with the Charter argument raised by Truong.
45 Third, the accused have each determined on the basis of legal advice to forego their right to a (delayed) trial by jury, and to have these matters determined by a judge alone (expeditiously).
46 Fourth, the prosecution consents to the making of an order and agrees that the interests of justice favour the making of a judge alone trial.
47 The consent of each of the accused and the prosecution tends to reveal that there would not be any unfairness to either party and tends in favour of a judge alone trial.
48 Fifth, the short duration of the trial, the minimal number of witnesses (alongside the fact that at least some of the evidence may be given remotely, for example, the expert evidence), and the limited matters in issue, mean that the trial will be manageable. As I said in Combo, these factors would not ordinarily favour a judge alone trial over a jury trial, but they do mean that, within this COVID-19 environment, the trial can be practically and fairly conducted. Of course, the manner of the conduct of the trial will be a matter for the trial judge.
49 Sixth, I accept that the issues in this case do not engage objective community standards and this tends in favour of a trial by judge alone.
50 Seventh, in this case, I accept that there is no compelling reason not to make an order for trial by judge alone. None of the parties submitted that there were any such reasons, and I can see none.
51 I am left in no doubt that an order for a trial by judge alone is justified here and I will make that order.
52 As I have determined to make the orders, it is not necessary for me to deal with every argument raised by the parties. Without necessarily determining these matters, there are some arguments which warrant some passing comment:
· I would not be prepared to accept a bald submission, unsupported by evidence, that negative public attitudes concerning a link between people of Vietnamese background and cannabis production either exists or that it rises to a level of unfairness such that a jury could not safely hear these allegations.
· As matters currently stand, I would not accept the characterisation that where there is no perceived unfairness to the accused or prosecution in conducting a trial by judge alone, I should effectively start from a default position in favour of trial by judge alone. As I have outlined above, the mode of trial is considered to be a neutral factor.
53 I also do not need to deal with the argument raised by Ms Bui that the fact that a judge would provide transparent and detailed reasons regarding the questions of knowledge and intention in this case favours a judge alone trial.
Orders
54 Pursuant to s 420D(1) of the CPA, I order that the charge of cultivation of cannabis in a quantity not less than a large commercial quantity alleged against each accused Truong and Bui by Indictment C1812182 be heard and determined by a judge alone, without a jury.
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