DPP v Verduci
[2020] VCC 1166
•5 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-02189
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANK VERDUCI |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2020 | |
DATE OF RULING: | 5 August 2020 | |
CASE MAY BE CITED AS: | DPP v Verduci (Application for trial by judge alone) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1166 | |
REASONS FOR RULING
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Subject: Criminal Law–Application for trial by judge alone.
Catchwords: Application for trial by judge alone under COVID-19 emergency provisions – Application consented to by the prosecution – Interests of justice – Need for administration of justice to continue – Delay – No application of objective community standards – Length of trial.
Legislation Cited: Crimes Act 1958 ss.197(3) and 197(6) and ss.81(1) and 321M; 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 (Ruling No 1) [2020] VSC 438; DPP v Ritchie (a pseudonym) [2020] VCC 1111; R v Qaumi (No 14) (2016) 265 A Crim R 575; R v Stanley [2013] NSWCCA 124; R v Homann [2018] NSWSC 198; Western Australia v Rayney [2011] WASC 326; R v Belghar (2012) 217 A Crim R 1; R v Gittany [2013] NSWSC 1503.
Ruling: Application for trial by judge alone granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M. Gumbleton | Galbally Parker Lawyers |
| For the Respondent | Mr M. Regan | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1 The accused, Frank Verduci (the applicant’), is charged on Indictment G12301423 with having, on 4 April 2016, committed the offences of arson for gain and attempting to obtain property by deception.[1] The offending is alleged to have involved the applicant deliberately setting fire to his vacant residential property in Cobram and then making an insurance claim for the damage caused to the building and contents.
[1] Those offences are alleged in charges 1 and 2, respectively. Both are laid pursuant the Crimes Act 1958; for charge 1 under ss. 197(3) and 197(6) and for charge 2 under ss.81(1) and 321M.
2 For those two indictable charges, the applicant now applies for a trial by judge alone pursuant to s.420D of the Criminal Procedure Act 2009 (‘the CPA’). His written application and supporting submissions were filed on 6 July. The application is consented to by the prosecution whose written submissions were filed on 13 July. At the hearing of this application, counsel for each of the parties made very brief supplementary oral submissions.[2]
[2] The Web-ex hearing was conducted on 28 July 2020.
3 I note that there have now been four previous decisions in this state regarding applications made under the newly inserted s.420D of the CPA. The prosecution consented to the making of the order in three of those applications,[3] and opposed the making of the order in the other.[4] All four applications were granted.
[3] DPP v Combo [2020] VCC 726 (2 June); DPP v Truong & Bui [2020] VCC 806 (15 June); DPP v Wang (Ruling No 1) [2020] VSC 438 (20 July).
[4] DPP v Ritchie (a pseudonym) [2020] VCC 1111 (28 July).
4 Whilst the applicant’s counsel also foreshadowed making a change of venue application because he initially thought a trial by judge alone could only be conducted in Melbourne, after further discussion and reflection he agreed that until an assessment was made closer to the date of any such trial, it was premature to make the application at this stage and so, he withdrew it.
Procedural history and delay
5 The relevant procedural history and delay in this case is worth mentioning at the outset and is not disputed.
6 The alleged offending occurred on 4 April 2016.
7 On 19 August 2016, the applicant was interviewed, charged and bailed
8 A number of committal mention hearings were held while transcripts for the telephone intercept and listening device recordings were prepared.
9 Ultimately, the committal hearing commenced on 23 August 2017. The evidence could not be concluded until 2 November 2017, however, due to the unavailability of some witnesses. The hearing was then adjourned to enable counsel to prepare written submissions for the foreshadowed discharge application. The application was made and granted on 11 December 2017, resulting in the applicant being discharged on both charges.
10 Just over a year later, on 18 November 2018, the prosecution advised the applicant’s solicitors that they intended to directly indict the applicant.
11 Once directly indicted, the applicant was bailed to appear for trial at the Shepparton Circuit sittings commencing on 26 August 2019.
12 However, for various reasons, the trial could not ultimately be heard in those sittings and so was adjourned to the next available sittings which commenced on 27 July 2020.
13 However, in March 2020, the intervening COVID-19 pandemic led to all County Court trials, including Circuit trials, that were listed to commence on or after 16 March 2020 being suspended.
14 The anticipated delay before Melbourne trials could proceed with a jury was estimated to be at least 9 months according to the County Court Circuit Criminal and Appeal Listings: COVID-19 Protocol published on 6 May 2020.
15 The anticipated delay in respect of Circuit trials was less clear and, if anything, likely to be greater than for Melbourne trials. I note, for example, that the County Court Circuit Criminal and Appeal Listings: COVID-19 Protocol, also published on 6 May 2020, relevantly states:
It is uncertain as to when criminal trials or conventional circuits will be able to recommence. The Court is planning upon an assumption that they will recommence at the beginning of 2021. Should circumstances allow, the Court will consult the profession with a view to commencing circuits this year, if practicable.
…
There are currently 285 pending trials across the Court’s 11 circuit locations.
All trials…have been comprehensively reviewed…[and]…each matter has been assigned a very high, high, medium or low priority status within the court location at which the trial will proceed. Within each of these priority statuses, matters gave been further prioritised…
In early May, Judge Mullaly…will commence allocating these matters to 2021 circuit blocks. This task will be undertaken with close reference to the priority status, but also with a view to ensuring a balance of sexual offences and other matters…
…
Crucial to the relisting of these trials is the formation and finalisation of the 2021 roster in conjunction with the Court of Appeal, Supreme Court and Magistrates’ Court.[5]
[5] Ibid, at [2.1]-[2.3], [2.6] and [2.8].
16 As I noted very recently in DPP v Ritchie (a pseudonym)[6]:
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. When the Government announced that development, this Court postponed the limited resumption of jury trials which was scheduled to commence on 20 July 2020. To date, no new resumption date has been announced.[7]
[6] [2020] VCC 1111.
[7] Ibid, [4].
17 Although I made those observations as recently as 28 July 2020, things have changed quite dramatically in this state since. On 2 August, the Victorian Government declared a state of disaster for a six-week period. As a result, from 6.00 pm, residents of the metropolitan Melbourne region became subject to Stage 4 restrictions that were more severe than the Stage 3 restrictions to which they had been subject since 8 July 2020. For example, they now face a 5km radius of movement restriction and a nightly curfew. As for residents living in regional areas, from 11.59pm on 5 August, they will be subject to Stage 3 restrictions, including the requirement to wear masks. Further details of the restrictions, including those relating to the workplace, were still being worked out by the Government in the days immediately following the 2 August announcement.
18 Against that background, it has to be said that the period of delay from this trial’s previous listing date of 27 July 2020 until this matter could proceed as a circuit jury trial in Shepparton, is by no means certain. What can be said with some confidence, however, is that it is very unlikely to be heard until the second half of 2021. So, on the likely best-case scenario, the delay would be in the vicinity of 12 months or so, and possibly even longer. Whilst this trial has some priority status given its general antiquity and the fact that it was ‘not reached’ in the Shepparton circuit sittings commencing on 26 August 2019, there will no doubt be a number of other trials which will have a greater prioritisation. Many, but not all of those will have recently had an even earlier listed trial date vacated for the same reason. Many, but not all, will involve sex offence trials with a ‘built-in’ statutory requirement for an expeditious hearing. Some will involve accused persons who are in custody. There may also be other trials which will, for some other reason, have a higher prioritisation ranking. And, it must be remembered that there is a more restricted capacity to list Shepparton circuit trials as, unlike the Melbourne Court, Circuit Courts don’t sit year-round.
19 The difference in the delay if one compares the two modes of trial is somewhat less but still very significant, particularly when one has regard to the substantial delay that has already occurred since the applicant was originally charged by police in August 2016. If this application is granted, a trial by judge alone could be heard in late September this year, whereas a trial by jury could not be heard at Shepparton until the second half of 2021. So, the difference in delay is likely to be at least 10 months and quite possibly more, depending on the future course of the pandemic and the final prioritisation that this trial can be given in the group of Shepparton circuit trials that are awaiting a re-listing date in 2021.
Prosecution case at trial
20 The prosecution case against the applicant is set out in some detail in the summary of prosecution opening.[8] To the extent that it is necessary to refer to it now, I note the following.
[8] That opening is undated and extends to 12 pages.
21 At the relevant time, the applicant lived at an address in Cobram and worked in the family business. In mid-2011, he purchased a small residential property elsewhere in Cobram which he treated as an investment rental property. The property was uninsured for two years until 13 August 2015, the date that the applicant took out building and contents insurance totalling $230,000.[9]
[9] The policy included $220,000 cover for building and $10,000 for contents.
22 The property was unoccupied when it was destroyed by fire in the early hours of 4 April 2016. After neighbours alerted the emergency services, fire and police personnel attended the scene, as did an arson chemist who examined the scene and concluded that the fire had been deliberately lit using the accelerant methylated spirits at multiple sites. The burnt remains of three plastic containers of that accelerant had been located on site.
23 Shortly after 9.00am on that day, the applicant, through his insurance broker, lodged an insurance claim with his insurer.
24 The prosecution case for the arson for gain charge is that it was the applicant himself who deliberately lit the fire, and that he did so intending to gain by means of a future insurance claim.
25 Their case in relation to the related but separate charge of attempting to obtain property by deception is put on the basis that the applicant made the insurance claim while knowing that he had no lawful basis to do so since, as he well knew, he had caused the damage himself.
26 Essentially, the prosecution case is a circumstantial one and dependent upon the fact finder being able to draw the necessary inferences to convict.
27 The evidence to be relied on includes, but is not limited to, the following. CCTV footage of a vehicle that is very similar in appearance to that owned by the applicant’s mother, travelling in the vicinity of the scene within a short time of the fire. The unusual circumstances in which the applicant gave notice to the previous tenant to permanently vacate the subject property on 22 January 2016.[10] A number of intercepted telephone calls involving the applicant and his father. Other conversations recorded by means of installed listening devices. In that context, the police deliberately created situations that were likely to entice the applicant to speak about the case to others. In one such conversation, the applicant’s partner raised the issue of fingerprints, asking the applicant why his fingerprints may have been on a methylated spirits drum, to which he replied, “because I took it there”. A distinctive floral design sheet matching one found at the fire scene was also located at the home of the applicant’s parents.
[10] The six-month lease was not due to expire until 30 March 2016. The reason given in the notice was that the applicant wished to renovate, reconstruct or repair the premises. No such works were in fact undertaken by the applicant in the six-month period between when the tenant vacated the premises on 23 February and when the fire occurred on 4 April 2016.
28 When the police first spoke to the applicant on 6 April 2016, they did not reveal the existence of the CCTV footage or the discrepancy between his account and that of other witnesses regarding the circumstances in which he had given the tenant a notice to vacate. When police formally interviewed the applicant on 19 August 2016, he denied any wrongdoing. He did, however, maintain his earlier claim that it had been the tenant’s idea to move out and he also told police that he had not done any renovations at the property.
29 Whilst being held in the police cells, the applicant allegedly spoke to an undercover police operative about insurance related fires and said, “we didn’t do it for financial gain”. He is also alleged to have told that person what he stood to gain from an insurance claim. The prosecution seeks to rely on those conversations as an admission by the applicant of having lit the fire.
Defence response and issues in dispute
30 The recently filed defence response clearly defines the issues in this case.[11] While there is no dispute about the fire being deliberately lit, the applicant denies being the person responsible. Equally, while the applicant admits instructing his insurance broker to lodge a claim on his behalf, he denies doing so dishonestly and in order to obtain property by deception.
Legislative framework and relevant legal principles
[11] That response is dated 29 June 2020.
31 In DPP v Combo[12] (‘Combo’), Chief Judge Kidd carefully set out the relevant legislative framework and legal principles relating to trial by judge alone, in what was the first application of its type brought under the new Victorian provisions. I respectfully agree with and adopt that analysis for the purposes of this ruling.
[12] [2020] VCC 726.
32 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.
33 By its terms, s.420D(1) sets out four pre-conditions which must be met before the Court’s discretion to make an order is enlivened.
34 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).[13] 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.
Interests of Justice
[13] As noted by Chief Judge Kidd in Combo at [47] and footnote 16, this construction is also consistent with authority in other Australian jurisdictions.
35 Many, if not all applications of this type will turn on whether the fourth requirement has been satisfied; that is, whether the court is satisfied that it is ‘in the interests of justice’ to make the order. That is certainly the case for this application.
36 In relation to the ‘interests of justice’ requirement in s.420D(1)(d), the following may be noted.
37 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.
38 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 intention was that justice would 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.
39 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.
40 In particular, I wish to endorse what Chief Judge Kidd said about delay at [61]-[62] of his judgement in Combo, which was expressed in the following terms:
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.
41 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 seeking 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.
42 Where a fact in issue involves the application of objective community standards, this tends in favour of a jury trial.[14] That is so because any assessment of objective community standards is best undertaken by a group of members of the community.[15]
[14] R v Qaumi (No 14) (2016) 265 A Crim R 575, 584 [32].
[15] R v Stanley [2013] NSWCCA 124 [43]; R v Homann [2018] NSWSC 198 [36]-[37].
43 The potential relevance and significance of the need to assess the credibility of witnesses at trial did not arise for consideration in this type of application in Victoria until the decision in DPP v Ritchie (a pseudonym).[16] In that case, I found that where the credibility of a witness is in issue, the preferred but by no means universal view is that such a factor should be treated as a neutral factor rather than as one favouring trial by jury.
[16] [2020] VCC 111, [45], [87]-[98].
44 One matter that has arisen for consideration in this application, which has not previously been considered in an application made under s.420D of the CPA, relates to the length of the trial and, more particularly, the argument that a trial by judge alone would be shorter in duration than a trial by jury. This issue has not received widespread attention in other Australian jurisdictions, but the limited jurisprudence from Western Australia and New South Wales seems to suggest that the issue will usually arise for consideration in lengthy trials[17] or trials in which the length of the trial differential between the two modes of trial is clearly established along with some other significant ramification, such as the ability of the accused to obtain legal representation for the trial.[18] I will return to consider this issue in more detail shortly.
Requirements of s.420D(1)(a)-(c) established
[17] See for example, the observations made by Commissioner Sleight in Western Australia v Rayney [2011] WASC 326, [37] and those made by McLellan CJ at CL in R v Belghar (2012) 217 A Crim R 1, [110].
[18] See R v Gittany [2013] NSWSC 1503.
45 As was acknowledged by the prosecution, the requirements of s.420D(1)(a)-(c) of the CPA have clearly been established in this case.
46 Both charges on the indictment have been laid pursuant to the Victorian Crimes Act and are, therefore, offences under the law of Victoria. The requirement in s.420D(1)(a) is therefore satisfied.
47 The twin related requirements in s.420D(1)(b) and (c) are clearly established in circumstances where, as here, the applicant has provided the necessary instructions to his legal representatives and confirmed them in the written application and submissions filed with the court. I therefore find that the applicant consents to the making of an order granting trial by judge alone and has done so after having obtained legal advice on whether to give that consent, including legal advice on the effect of such an order.
Applicant’s submissions on the interests of justice requirement
48 Distilled to their essence, the submissions made by the applicant’s counsel sought to rely on the following matters, in combination, so as to persuade this court that it is in the interests of justice to make an order for trial by judge alone in this case:
(i) The applicant consents to an order for a judge alone trial;
(ii) The significant delay; and
(iii) The absence of any requirement for the application of objective community standards;
(iv) The time taken at trial would be shorter in a judge alone trial as compared to a judge sitting with a jury;
(v) The pressure relieving effect that the timely hearing of this matter would have on the re-listing of jury trials.
49 The applicant’s counsel commenced by highlighting the fact of his client’s election and consequent waiver of his right to be tried by jury.
50 Counsel then submitted that the issue of delay was a significant factor in this case. By reference to the relevant chronology, he pointed out that any future date for a jury trial would mean that the applicant would have had these charges hanging over his head for more than five years. He correctly pointed out that none of the delay is attributable to the applicant. In his written submissions, he submitted that the delay in this case arguably contravenes s.25(2) of the Charter of Human Rights and Responsibilities Act (2006) (Vic).
51 With regards to the length of trial argument, the applicant’s counsel submitted that there would be greater efficiencies and a consequent reduced length of the trial if it were run as a judge alone trial as compared to a jury trial. He based that claim on the following. The time taken to empanel a jury would be saved. As there was a thorough committal hearing, it is likely that the evidence of many witnesses could, in the main, be led by reference to the evidence they gave at that hearing. A judge sitting alone is likely to be able to listen to the telephone intercept and other recordings in a shorter timeframe, requiring fewer breaks than would a jury. The submissions on the required legal directions and the closing addresses of counsel would be briefer in a judge alone trial.
52 Whilst the professed saving in time in the applicant’s written submissions was 5 days; so, a 10 day trial as compared to a 15 day trial, that reasoning was flawed because it assumed that a trial by judge alone could only be conducted in Melbourne rather in Shepparton.[19] The professed shortening of the trial if judge alone would therefore need to be adjusted by at least a couple of days.
Prosecution stance and submissions
[19] The applicant’s counsel referred to the shorter circuit sitting hours for a Monday and Friday.
53 At the hearing of this application, the prosecutor confirmed that the prosecution consented to the making of an order for a judge alone trial in the particular circumstances of this case.
54 After confirming that the first three of the requirements under s.420D(1) have been made out, the prosecutor acknowledged that as a result of the combination of three factors, it was in the interests of justice for there to be an order permitting a judge alone trial. They were the delay, the fact that there was no requirement for the fact finder to apply objective community standards in determining whether to convict, and the savings in time that would be achieved in a judge alone trial.
Analysis and conclusions
55 I am satisfied that the essential pre-conditions set out in s.420D(1)(a)-(c) of the CPA have been made out.
56 I am also satisfied that the remaining pre-condition contained in s.420D(1)(d) is established as it is clearly in the interests of justice that an order be made under s.420D of the CPA, that the applicant be tried by judge alone.
57 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.
58 The power and influential nature of these two factors were made clear by Chief Judge Kidd in Combo[20] and by me in Ritchie (a pseudonym).[21]
[20] See for example, at [69]-[71] of the judgement.
[21] See at [76]-[80] and [110].
59 Self-evidently, each case will involve its own unique set of circumstances and it will always be a matter of fact and degree as to the level of importance which is to be attached to each of those factors in any given case. One issue that arises here, unlike in those cases, is the fact that the Shepparton Circuit sittings are intermittently held rather than conducted year-round.
60 In the particular circumstances of this case, I consider those two factors to be important and deserving of significant weight in the balancing exercise required to be undertaken by this court.
61 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.
62 The delay factor in this case militates 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.
63 That relative comparison must be undertaken mindful of the broader delay in this case. Here, the applicant is facing the prospect of a significantly delayed jury trial having already been denied the opportunity of having that trial proceed as originally listed in August 2019. I accept that such a further delay would only add to the burden already experienced by the applicant as a result of having these serious charges hanging over his head for such a long time. To have to wait more than five years from being charged until those charges can be finally determined by a jury is, by any measure, quite out of the ordinary. Even more so, in my view, when none of that delay is attributable to the applicant and in circumstances where he has faced the additional anxiety of being directly indicted for trial many months after being discharged at committal.
64 Before leaving the issue of delay, I should say something briefly in relation to the Charter argument that the applicant’s counsel made brief reference to in his written submissions. In my view that argument can be dealt with in the same way that the Chief Judge Kidd dealt with a similar argument made by one of the applicants in DPP v Truong & Bui.[22] What his Honour there said, is apt to this case. He said:
Accepting the general principle that it is in the public interest that people charged with serious offences access expeditious justice, and its application to this case, I do not need to engage with the Charter argument raised by Truong.[23]
[22] [2020] VCC 806.
[23] Ibid, at [44].
65 I have had regard to and given appropriate weight 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.
66 The fact that the final resolution of these charges does not require the ultimate fact finder to apply objective community standards is a relevant consideration since it removes one potential factor from the equation that has broadly been considered in other Australian jurisdictions to favour a jury trial. So, one potential hurdle to a judge alone trial is removed from the mix of considerations that are relevant to the exercise of the judicial discretion.
67 I return now to the applicant’s argument regarding the length of the trial. Put shortly, it was submitted that a trial by judge alone would be shorter in duration than a jury trial and that is a factor which ought to be treated as one pointing in favour of a trial by judge alone.
68 I need to emphasise that the argument as put was based on the relative saving in time as opposed to it being suggested that this will be a lengthy trial and that therefore the problems that would arise if a jury were involved necessitated a different mode of trial. The potential for problems arising in lengthy jury trials was referred to by Commissioner Sleight in Western Australia v Rayney[24] and by McLellan CJ at CL in R v Belghar (‘Belghar’).[25]
[24] [2011] WASC 326, [37].
[25] (2012) 217 A Crim R 1, [110].
69 As best I can understand what was said by McLellan CJ at CL in Belghar, it is that although the prospective length of the trial is a relevant consideration, practical efficiencies of a trial by judge alone over a trial by jury are not relevant. It is worth setting out the relevant passages of that judgement in full:
The present case is the first occasion on which s 132 has been considered by this Court. The issues which have been raised in this appeal extended beyond matters considered by the primary judge. Two matters of particular significance should be discussed.
In some cases the decision of a judge to order trial by judge alone has been influenced by consideration of the efficiencies available from a judge-alone trial and the advantages available to an accused person and the community if reasons for the verdict are available from the trial judge: Markou at [6]-[8]; Arthurs at [76], [92]; see also Rayney at [29], [37]. For my part, I would accept that as part of the mix of issues which must be considered the likely length of the trial in a particular case, if conducted with a jury, compared with the likely length of trial by judge alone, is relevant. The likely length of a trial may have to do with the complexity of the issues involved, the number of accused to be tried, or the number of witnesses to be called. The obligations on prospective jurors to spend many months away from their normal activities, including their employment with extremely modest recompense, may be a significant matter in a particular case when determining where the interests of justice lie. Trial judges are familiar with the problems which can arise with jurors who become frustrated at their continuing involvement in a trial weeks or months after the original estimate has passed with the obvious diminishing contribution they make to understanding the evidence and the issues which require resolution.
However, I would not accept that the interests of justice in s 132 can be informed by considerations of the overall efficiencies in the operation of a court which may be available from a judge-alone trial. No doubt they are important issues for the administration of justice and may ultimately lead to legislative intervention but, as the majority determined in Pambula Hospital, they are not relevant to the interests of justice in the particular case.[26]
[26] Ibid, at [109]-[111].
70 The other two members of that Court, while agreeing with the ultimate result in the appeal and the narrow basis on which it turned, were not prepared to express a concluded view on the relevance of the length of trial or any relative efficiencies as between modes of trial. For example, Hidden J, said:
The perceived desirability of reasons for a verdict and the efficiency of the conduct of a criminal trial may well be matters of policy which the Legislature would consider if it were examining whether jury trials should be abolished or modified. However, as the law stands, I can see little or no place for either consideration in determining the appropriate mode of trial, but I would prefer to express no concluded view about the matter.[27]
[27] Ibid, at [120].
71 Hislop J’s brief reference to the matter was in these terms:
I also appreciate the Chief Judge’s examination of the wider issues raised by the question whether a trial should be by jury or by judge alone, and his examination of authority bearing on those issues. However, I would prefer to express no concluded view about those matters as it is unnecessary to do so to resolve the present case.[28]
[28] Ibid, at [122].
72 I should note for completeness sake, that of the cases referred to by McLellan CJ at CL when referring to both trial efficiency and the provision of reasons by a judge, Arthurs dealt only with the giving of reasons point, while Rayney as I have already noted, appears to focus on the problems that can arise with trials of an extreme length. Only in R v Markou,[29] was the professed greater efficiency of judge alone trials compared to jury trials accepted without question, in somewhat controversial terms.[30] That generalised view and its relevance to an individual application seems to have ultimately not found favour with McLellan CJ at CL in Belghar.[31]
[29] [2011] NSWDC 25.
[30] See at [7]-[8].
[31] See at [111].
73 The remaining case I wish to refer to is that of R v Gittany.[32] In that application for a judge alone trial, McCallum J had to deal with a very unusual and rather compelling set of circumstances for which there was a clear evidentiary basis. Although the question of legal representation was the primary basis for the application, that issue could not be uncoupled from the related issue of the length of the trial. Her Honour was prepared to accept that a trial with a jury would go considerably longer than the four-week period it would take if it proceeded as a trial by judge alone. That finding had significant ramifications and was very influential in her ultimate decision.
[32] [2013] NSWSC 1503.
74 The applicant was able to afford to privately fund his trial but only for the more limited period it would take if conducted as a trial by judge alone. His belated application for legal aid funding had only been determined and refused a short time before the application for a trial by judge alone was made. That created a difficult situation. If her Honour refused the application for trial by judge alone, the applicant would be unrepresented for the trial which was due to commence in a week’s time, and he would be forced to seek an adjournment so as to attempt to raise further funds to retain lawyers privately or he would need to review Legal Aid’s refusal. In her Honour’s view, there was a compelling basis for a relatively lengthy adjournment in such circumstances. That would put in jeopardy the availability of an eyewitness. In the end result, faced with only a formal opposition by the prosecution, her Honour concluded that it was in the interests of justice to grant the application for a trial by judge alone.
75 In her reasons, McCallum J referred with approval to what McClellan CJ had said in [110] and [111] of his judgement in Belghar about the relevance of the comparative likely length of trial by each mode as opposed to merely the overall efficiencies in a trial by a judge alone.[33] As her Honour put it, the basis for the application before her was not simply a question of invoking considerations of the overall efficiencies in a trial by a judge alone, but rather involved broader issues.
[33] Ibid, at [43]-[44].
76 In my view, the argument presented by the applicant’s counsel is unpersuasive because it seeks to rely on the length of trial by merely invoking the professed greater efficiencies of a judge alone trial rather than on some broader and permissible basis. That would seem to infringe the caveat expressed in Belghar and accepted in Gittany.
77 But, even if I am wrong in the interpretation or application of those principles to this case, I consider that the applicant’s argument to the effect that a trial by a judge alone would be shorter than a trial with a jury lacks a sufficient basis as it relies heavily on speculation and on somewhat vague and non-binding indications about how the evidence could be led if such a mode of trial were adopted. For example, that many of the witnesses evidence could be given by reference to what they had said at the committal hearing, and that counsel would be briefer in addressing a judge sitting alone when discussing what directions are required and when delivering their final addresses.
78 I am simply not prepared to act on those bold and untested assertions, particularly when this new mode of trial is in its absolute infancy in this state and counsel, as much as judges, have yet to grapple with the challenges that it will likely present.[34] Nor am I prepared to assume that a judge would take any less time to listen to the recordings in court than would a jury. But, as counsel indicated, the time ordinarily taken up with empanelling a jury would not have to be allocated for that purpose. However, it is difficult to gauge whether that would ultimately result in any net saving without also knowing in advance whether a judge presiding in a judge alone trial would take less or more time to prepare their reasons for judgement than would a jury to deliberate and arrive at their verdicts.
[34] To date, there has only been one completed judge alone trial conducted in Victoria: see judgement in DPP v Bui & Anor [2020] VCC 1063.
79 In the end result, this is ultimately a factor that I am not inclined to consider relevant in the particular circumstances of this case. But, even accepting for the sake of the exercise, that it is a relevant consideration, I would give it only minimal weight in circumstances such as these. This is likely to be a relatively short trial whatever mode of trial is adopted as the issues in dispute are limited and well defined. Moreover, as I have noted, there is an insufficient basis on which to find that there are likely to be the type and extent of time savings and efficiencies that the applicant’s counsel asserts
80 The applicant’s fifth point, to the effect that allowing this application will relieve some of the listing pressure faced by this Court in relation to future jury trials, is a somewhat opaque concept in my view and difficult to measure. Rather than dealing with it as a discrete factor, I consider the better approach is to have regard to it when considering the factor relating to the desirability of continuing with the court’s business while jury trials are suspended. And, that is what I have done in this case.
81 In conclusion, I note that there is nothing about this case to suggest that this trial cannot be conducted practically and fairly as a trial by judge alone in the near future. As the parties indicated at the hearing of this application, other than the informant and possibly the arson chemist, all of the witnesses can likely give their evidence by remote means.[35]
[35] I say ‘possibly’ in respect of the chemist because to date, the prosecution has not consulted that witness and are yet to form a concluded view about the matter.
82 Having carefully considered and weighed all of the relevant considerations in this application, I am 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 and the need to continue with the business of the court, it is appropriate to exercise my discretion by granting the application and making the order sought.
Orders
83 Accordingly, I make the following orders.
84 Pursuant to s.420D(1) of the CPA, I order that the charges of arson for gain and attempting to obtain property by deception contained in Indictment G12301423, be heard and determined by a judge alone, without a jury.
85 In light of the earlier indications from counsel regarding any suitable dates for trial, I order that this trial is listed to commence in the County Court sitting at Shepparton on 28 September 2020, at 2.00pm.
86 In addition, the trial will be listed for a mention hearing at 10.00am on Monday 14 September 2020. The applicant will be excused from attendance on that date providing his counsel appears with all of the necessary instructions. At that mention hearing, I will indicate to the parties whether this trial can proceed as a trial by judge alone in Shepparton, after having made suitable enquiries in the meantime and after a consideration of the prevailing circumstances of the COVID-19 pandemic, including any Government restrictions that are in place at that time.
87 In the event that the Court’s indication to the parties is that a trial by judge alone cannot be held in Shepparton on 28 September, the mention hearing will also involve the hearing and determination of what I understand may be a contested change of venue application by the applicant which will be aimed at ensuring that the trial by judge proceeds in Melbourne on its currently listed date of 28 September 2020.
88 Whatever be the case, the trial will also be listed for a mention hearing on Friday 18 September 2020 at 10.00 am. The applicant’s bail will be extended on the same terms until then. 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.
89 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, providing that is possible. 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.
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