Hooper & Oxymed Australia Pty Ltd v Director of Public Prosecutions

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0013

MALCOLM HOOPER	First Applicant
and
OXYMED AUSTRALIA PTY LTD (ACN 606 641 954)	Second Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGES:	KYROU, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 March 2021
DATE OF ORDERS:	15 March 2021
DATE OF REASONS:	23 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 68
JUDGMENT APPEALED FROM:	DPP v Hooper (Unreported, County Court of Victoria, Judge Lauritsen, 27 January 2021)

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CRIMINAL LAW – Appeal – Applicants charged with offences under the Occupational Health and Safety Act 2004 – Applicants applied for charges to be tried by judge alone – Prosecution not consenting to application – Appeal against refusal of application – Whether judge failed to give sufficient weight to purposes of judge alone trial legislation – Whether judge placed excessive weight on role of community standards in determination of application – Whether judge gave insufficient weight to issue of delay – Whether judge gave insufficient weight to ensuring efficiency given complexity of evidence – Leave to appeal granted – Appeal allowed – Trial by judge alone ordered – DPP v Combo [2020] VCC 726 applied, R v Belghar (2012) 217 A Crim R 1, DPP (NSW) v Farrugia [2017] NSWCCA 197, Western Australia v Edwards [2018] WASC 419, R v UD [No 2] [2020] ACTSC 90 discussed – Occupational Health and Safety Act 2004 ss 26, 32, Criminal Procedure Act 2009 ss 420A, 420D, 420H, 420I, 420L, 420R, 420ZN, COVID-19 Omnibus (Emergency Measures) Act 2020.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr C Mandy SC with Mr J Tito	Furstenberg Law
For the Respondent	Mr J Rapke QC with Ms D Karamicov	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA

KAYE JA
EMERTON JA:

The first applicant (‘Hooper’) and the second applicant (‘Oxymed’) are each charged with four offences under s 26 of the Occupational Health and Safety Act 2004 (‘OHS Act’), and with two offences under s 32 of that Act.

On 16 November 2020, the applicants filed an application for trial by a judge alone pursuant to s 420D of the Criminal Procedure Act 2009 (‘the Act’). That application was opposed by the prosecution. Following the filing of written submissions and oral argument, the judge delivered a ruling refusing the application.[1] The applicants seek leave to appeal that decision pursuant to s 420H of the Act, on the following grounds:
[1]DPP v Hooper (Unreported, County Court of Victoria, Judge Lauritsen, 27 January 2021) (‘Ruling’).

(1)The Learned Judge erred in failing to give sufficient weight to the purposes for which the legislation permitting judge alone trials was enacted.
(2)The Learned Judge erred in placing excessive weight on the concept of ‘objective’ or ‘contemporary’ community standards in the circumstances of this case.
(3)The Learned Judge erred in failing to give proper weight to the issue of delay generally, and specifically in:
(a)Failing to give sufficient weight to the impact of delay on the availability of witnesses;
(b)Finding that the potential serious ill-health of the Crown’s expert witnesses was ‘immaterial’ to the interests of justice;
(c)Finding that any such delays rendering Crown witnesses unavailable would only be to the detriment of the Crown;
(d)Finding that scenario 2 of the ‘Revised Listing Schedule for Melbourne Criminal Trials’ (published by the County Court on 4 September 2020) is more likely to apply in this case — that is, making a positive finding that the County Court is likely to resume normal operations and capacity from July of 2021, and accordingly that this trial before a jury would be listed in the last term of 2021;
(e)Failing to consider at all, or give sufficient weight to the applicant’s submission as to the length of this trial and the impact of that duration on the empanelment of jurors;
(f)Failing to consider at all, or give sufficient weight to the submission that accuseds in custody, and those facing sexual allegations have a claim to priority over these accuseds;
(g)Failing to weigh the uncertainties surrounding the timing of a potential jury trial in the applicants’ favour;
(h)Failing to give sufficient weight to the significant delay that has already occurred in the disposition of this trial, the breaches being alleged as having occurred on the 6^th of April 2016, in circumstances where 2 of the charges carry terms of imprisonment.

(4)The Learned Judge gave no, or insufficient weight to the complexity of the evidence, the efficiency of the trial, and the giving of reasons as enhancing the reasons for a judge alone trial in this case.

At the conclusion of oral argument, we decided that the application for leave to appeal should be granted, and that the appeal should be allowed. Accordingly, we pronounced orders setting aside the orders made by the primary judge on 27 January last, and that, in lieu of those orders, it be directed that all charges against the applicants be tried by a judge alone without a jury. We now provide our reasons for that decision.

Background circumstances

Oxymed and Hooper operated a hyperbaric oxygen therapy facility at premises in Chapel Street, South Yarra, which offered treatment in monoplace hyperbaric chambers to members of the public. Hooper was described as the founder and clinical director of the facility, and the prosecution alleges that he shared management and control of the workplace with Oxymed.

Hyperbaric oxygen therapy is a method by which high concentrations of oxygen, which are administered at high pressure, are inhaled by a person who is enclosed in a pressurised chamber. The therapy is based on the principle that oxygen breathed at pressure may deliver therapeutic benefits to a patient. There are two kinds of hyperbaric chambers, namely, monoplace chambers and multiplace chambers. In the latter form of chamber, the patient is commonly accompanied by a medical attendant during the administration of the treatment. On the other hand, in monoplace chambers, which were used at the premises in this case, the patient is usually treated alone in the chamber, although there can be a provision for a medical attendant to also accompany that person. If an emergency arises during the course of treatment, it is necessary for there to be a rapid decompression of the chamber. The manufacturer of the chamber, used by the applicants, recommended that in such an event, emergency decompression should take place within thirty seconds.

The charges against the applicants arose out of the treatment of Mr Craig Dawson (‘Dawson’), who was a client of the applicants and had received treatment at the premises for a number of years. Dawson suffered multiple sclerosis, having been diagnosed with that disease when he was 22 years of age. He also suffered multiple sclerosis-induced epilepsy which caused him to have frequent seizures, some of which were so severe as to require him to be admitted to hospital. During a seizure Dawson would lose consciousness. The seizures would last between five and twenty minutes. It is alleged that the applicants were aware of Dawson’s history of seizures and their frequency and severity.

By April 2016, Dawson’s condition had deteriorated to the extent that he was no longer able to walk, and he had lost the ability to use his right arm and most of his left arm. His eyesight was poor and his speech was also restricted. In addition, he had a number of other complicating disabilities.

On 6 April 2016, while Dawson was being provided with oxygen therapy in a monoplace hyperbaric chamber at the premises, he became unconscious. He was removed from the chamber, and taken by ambulance to the Alfred Hospital. Upon arrival, he was admitted as an inpatient in the hospital’s intensive care unit and placed on life support. On 11 April, his life support was withdrawn, and he died that evening, having never regained consciousness.

The charges

Charges 1 to 8 allege offences by each accused contrary to s 26 of the OHS Act. Each such charge alleges that the applicant, being a person who had management or control of the workplace, failed, so far as was reasonably practicable, to ensure that the workplace was safe and without risks to health. The four failures alleged in those charges are:

(1)The failure to ensure that a comprehensive risk assessment was conducted for each person receiving hyperbaric oxygen therapy at the workplace (charges 1, 2).
(2)The failure to ensure that there was appropriate supervision of the occupants of hyperbaric chambers at all times at the premises (charges 3, 4).
(3)The failure to ensure that the communication system between attendants and the occupants of the chambers permitted a clear and uninterrupted communication at all times (charges 5, 6).
(4)The failure to ensure that those working at the workplace had undergone adequate instruction and training in the safe operation of the chambers and in administering effective first aid (charges 7, 8).

Charges 9 to 12 allege that, contrary to s 32 of the OHS Act, each applicant recklessly engaged in conduct that may have placed those in the workplace in danger of serious injury. Charges 9 and 10 allege that the applicants placed Dawson in danger of serious injury because the oxygen supply equipment used at the workplace for hyperbaric oxygen therapy was unsuitable for the supply of oxygen at high pressure. Charges 11 and 12 allege that the applicants placed Dawson in danger of serious injury in circumstances in which Dawson, due to his disabilities, was unable without assistance to: activate the emergency button; remove or adjust the oxygen mask; communicate using the communication system inside the chamber; assist himself in the event of a medical emergency or equipment failure; or attract the attention of someone outside the chamber in the event of a medical emergency or equipment failure.

Relevant provisions of Criminal Procedure Act 2009

Section 420D was included in the Act by the enactment of the COVID-19 Omnibus (Emergency Measures) Act 2020. Section 1 of that legislation provides:

The purpose of this Act is to temporarily amend certain Acts, and to temporarily empower the making of regulations, to modify the application of the law of Victoria in certain respects for the purpose of responding to the COVID-19 pandemic.

Section 420D provides:

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.

Sections 420H and 420I of the Act provide for a right of appeal against a decision regarding trial by judge alone as follows:

420H Right of appeal against decision regarding trial by judge alone
A party to a proceeding in which the court makes a decision regarding trial by judge alone may appeal to the Court of Appeal against that decision if the Court of Appeal gives the party leave to appeal.
420I When leave to appeal may be given
(1)Subject to subsection (2), the Court of Appeal may give leave to appeal against a decision regarding trial by judge alone only if the court is satisfied that it is in the interests of justice to do so.
(2)The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.

The application for trial by judge alone

The prerequisites, prescribed by s 420D(1)(a) to (c) of the Act, were each satisfied. In the application before the primary judge the legal issue was whether the court considered that it was ‘in the interests of justice’ to make an order for trial by judge alone.

In support of the application, counsel for the applicants submitted that it was in the interests of justice for the applicants to be tried by judge alone for a number of reasons. In particular, counsel relied on the delay of four years since the events of 6 April 2016, and the probable further delay in the hearing of the trial as a result of the current COVID-19 pandemic. The applicants also submitted that as some of the evidence in the case would be scientific in its nature, a jury would be in no better position to adjudicate on the issues than a judge. Further, although there might be some issue as to the reliability of witnesses, it was submitted that this is not a case where the credibility of any particular witness would be fundamental to the determination of the issues. Finally, counsel relied on the proposition that Parliament had enacted provisions, allowing for trial by judge alone, to enable the business of the courts to continue, as much as possible, in the extraordinary emergency situation arising from the pandemic.

The prosecution opposed the application. In particular, it submitted that all of the delay in the commencement of the trial, apart from that caused by the COVID-19 pandemic, had been due to applications for adjournments made on behalf of the applicants. It was submitted that the applicants had not pointed to any prejudice, apart from that which normally flows from the effluxion of time, which would be occasioned to the accuseds by any delay arising from the trial being by a jury rather than a judge alone. It was also submitted, on behalf of the prosecution, that the expert and scientific evidence in the case was not so complex that a jury would not be able to understand it. In particular, it was contended, this is not a case in which there is significant dispute amongst expert witnesses. Further, counsel for the prosecution noted that there are a number of witnesses whose evidence would be of considerable significance in the trial and whose credibility might be put in issue. It was submitted that that factor militated substantially against a trial by a judge alone. Finally, counsel contended that the determination of the charges against the applicants would involve the application of objective community standards. In such a case, it was submitted, the participation of the community in the trial process, by trial by jury, would enhance confidence in the outcome of the trial.

The ruling

In his ruling, the judge gave consideration to each of the individual factors relied on by the parties in their submissions.

The judge noted that a substantial amount of the evidence in the trial would be scientific. However, the expert evidence would not be complicated by the existence of conflicting opinions, as the applicants did not intend to call any expert evidence contesting the opinions that are to be adduced on behalf of the prosecution. In those circumstances, the judge considered that the task of the tribunal of fact, in assessing that evidence, would be ‘relatively straight forward’. Accordingly, the complexity of the evidence was not a factor that favoured an order for trial by judge alone.[2]
[2]Ibid [30].

The judge was unable to determine whether the credibility of any of the non-expert witnesses would be a significant issue in the trial.[3] Accordingly, he regarded issues of the reliability and dishonesty of witnesses to be a ‘neutral’ factor.[4] His Honour did consider that a judge alone trial would be more efficient than a trial by a jury. In a judge alone trial, it is possible to accommodate the needs of witnesses with greater flexibility than in the context of a jury trial.[5] The judge also noted that Dawson’s death was irrelevant in respect of the proof of the first eight charges, so that the admissibility and relevance of the fact of his death would be more simple in a trial by judge alone.[6]
[3]Ibid [31].
[4]Ibid [33].
[5]Ibid [34].
[6]Ibid [35].

The judge considered that the assessment of the degree of risk and dangerousness, that is involved in the determination of each of the charges, does involve the application of objective community standards, which is a factor militating in favour of trial by jury.[7] On the other hand, his Honour did not accept the submission by the prosecution that in a case such as this it is appropriate and necessary for the public, in the form of a jury, to pass judgment on the conduct of the applicants.[8]
[7]Ibid [36]–[45].
[8]Ibid [47].

The judge considered the issue of delay in some detail.[9] His Honour noted that a trial by judge alone could take place earlier than a trial by jury.[10] The judge also noted that it was almost five years since the events which gave rise to the charges. On the other hand, the prosecution had pointed to the repeated failure of the applicants to obey directions of judges in the filing of various documents.[11] His Honour noted that delay can affect the quality of evidence of witnesses, and also can affect the first applicant, Hooper, by leaving him uncertain as to his future.[12]
[9]Ibid [48]–[60].
[10]Ibid [49].
[11]Ibid [57].
[12]Ibid [58]–[59].

The judge concluded by stating:

The decision in this case is finely balanced. In my opinion, there are two significant factors: delay to trial and determination; and the objective community standards. The other issues are marginal or neutral.
A trial by judge alone will occur quicker than trial by jury. The former may occur as early as March, the latter as late as the final term of 2021. There could be a difference of nine months. The trials will be much the same length, whatever mode is adopted. Trial by jury should result in a verdict within days of the judge's charge. For trial by judge alone, a verdict, accompanied by adequate reasons, should take between one and three months of counsels' closing addresses. In those circumstances, the overall difference in delivering a verdict is shorter than if one considers the delay to trial and the estimated length of the trial.
Both sets of charges raise objective community standards as part of the elements of each offence under ss 26 and 32 of the Act. For each offence, those standards represent an important element of the charge. They are not tangential.
Overall, I do not consider it is in the interests of justice that the charges be tried by a judge alone and reject the applications.[13]
[13]Ibid [61]–[64].

Application for leave to appeal — preliminary issue

Before considering the proposed grounds of appeal, it is necessary first to give consideration to the principles that apply to the determination of the present application for leave to appeal.

Counsel for the respondent submitted that an appeal, against a decision made under s 420D of the Act, is in the nature of an appeal from an interlocutory decision. As already noted, the essential question in the present application was whether the judge was satisfied that it was in the interests of justice to make an order that the charges against the applicants be tried by a judge alone. Counsel for the respondent submitted that, in such a case, the Court should only grant the application if the order made by the judge would occasion a substantial wrong which would bring the administration of justice into disrepute. Counsel further contended that the decision by the judge, under s 420D, involved the exercise of a discretion, to which the principles enunciated in House v The King[14] apply. Accordingly, he submitted, it is not open to this Court to grant leave to appeal to the applicants unless it is satisfied that it is reasonably arguable that it was not open to the trial judge to make the decision rejecting the application that the charges be tried by a judge alone.
[14](1936) 55 CLR 499; [1936] HCA 40.

Section 420R of the Act specifically provides that the decision by a trial judge to make, or not to make, an order under s 420D is not an interlocutory decision for the purposes of the Act. Section 420H provides that a party to a proceeding, in which the court makes a decision regarding trial by judge alone, may appeal to the Court of Appeal against that decision if this Court gives the party leave to appeal. Thus, while the right of appeal is not subject to the constraints that would apply to an appeal against an interlocutory decision under s 295 of the Act, nevertheless, in order to grant leave to appeal, the applicants must demonstrate that it is reasonably arguable that the judge erred in declining to determine that the trial should proceed by a judge alone.

Section 420L of the Act makes provision for the determination of an appeal from such a decision by a judge. Sub-sections (1) and (2) of that section provide as follows:

(1)An appeal against a decision regarding trial by judge alone is to be determined on the basis of—
(a)submissions made by the accused and the prosecution to the trial judge in relation to the decision; and
(b)if the Court of Appeal gives either party leave to make further submissions, those submissions.

(2) On an appeal under section 420H, the Court of Appeal—
(a)may affirm or set aside the decision regarding trial by judge alone (the original decision); and
(b)if it sets aside a decision not to make an order under section 420D, may make that order; and
(c)must remit the matter to the court that made the original decision for trial.

Thus, in the determination of the application for leave to appeal, and of any appeal, the Court is confined to the issues agitated by the parties before the primary judge, unless the Court gives either party leave to make additional submissions.

In considering the competing submissions advanced by the parties in respect of the four proposed grounds of appeal, it is important to bear in mind the nature of the decision made by the judge in declining to direct that the trial proceed by a judge alone. Section 420D(1) provides that a court ‘may’ make an order for a trial by judge alone if it is satisfied as to each of the four prerequisites specified in sub-paras (a) to (d). As such, the power of a court to grant an application for a trial by judge alone is, of its nature, discretionary.[15] The first three prerequisites are essentially factual. The discretionary nature of the power of the court to order a trial by judge alone arises from the fourth prerequisite, namely, that the court ‘considers that it is in the interests of justice to make the order’.
[15]Cf R v Belghar (2012) 217 A Crim R 1, 24 [85]–[88]; [2012] NSWCCA 86 (McClellan CJ at CL) (‘Belghar’).

The determination of that issue necessarily involves an evaluation by the court of the relevance of, and weight to be accorded to, a number of important considerations. While the nature of the conclusion by the court is, ultimately, discretionary, nevertheless, as Basten JA pointed out in Director of Public Prosecutions (NSW) v Farrugia,[16] it is materially different to that which is involved in the exercise of the sentencing discretion. As his Honour stated:

An order under s 132 is also identified as the exercise of a discretionary power. That is true, although it is not a discretionary power of the kind engaged in House v R, namely the choice of a particular point within a range of available sentences. Rather, it involves a binary choice, albeit that the criteria will engage an evaluative judgment. There is a strong public interest in ensuring that such judgments are made according to appropriate criteria and that relevant considerations are given proper weight.[17]

[16][2017] NSWCCA 197 (‘Farrugia’).

[17]Ibid [8] (citations omitted). See also Brown v DPP (NSW) [2018] NSWCCA 94, [13] (Basten JA).

In that way, the question of the correctness of a decision, as to whether it is in the interests of justice that a judge alone trial be ordered, may depend not only on a consideration of the factors taken into account by the judge in determining that question, but also on the manner in which the judge did or did not rely on those matters. In such a case, where it becomes evident that the judge may have accorded a particular consideration inappropriate weight, or may have failed to accord it appropriate weight, such a consideration may inform a determination whether it was open to the judge, in the particular case, to reach the conclusion whether or not it was in the interests of justice to order a trial by a judge alone.

It follows that a determination whether it was reasonably open to the judge to conclude that it was not in the interests of justice that the charges be tried by a judge sitting alone will, in part, be assisted by a consideration of the factors taken into account by his Honour, and the relevance and weight attributed by his Honour to each of those factors.

In the course of oral argument, counsel for the applicants clarified the nature of the four proposed grounds of appeal contained in the notice of application for leave to appeal. In particular, he explained that grounds 2 and 3(a), (b) and (c) each alleged specific error by the judge in the exercise of his discretion. In addition, counsel explained, grounds 1, 3(a) and 4 are directed to the proposition that it was not open to the judge to reach a conclusion that it was not in the interests of justice to order a trial of the charges against the applicants by a judge alone.

Principles applicable to s 420D of the Criminal Procedure Act

In resolving the issues raised on this application, the critical question is, ultimately, whether the judge erred in determining that it is not in the interests of justice that the charges against the applicants be tried by a judge alone. In order to resolve that question, it is necessary to consider the content of the phrase ‘in the interests of justice’ in s 420D(1) of the Act.

As earlier mentioned, the provisions of the Act, that allow for a trial by a judge alone, were introduced by the COVID-19 Omnibus (Emergency Measures) Act 2020. Section 420A provides that the purpose of the provisions is to ‘temporarily change’ the operation of the Act in response to the COVID-19 pandemic. When the provisions were first enacted in April 2020, s 420ZN provided that they were to be repealed on the day that is six months after the commencement of the Act, namely, on 24 October 2020. Subsequently, the operation of the provisions was extended until 26 April 2021.

Section 420D is the first legislative provision in Victoria that has enabled charges for an indictable offence to be tried by a judge sitting alone in the County Court and Supreme Court of this State. A number of other jurisdictions in Australia have enacted legislation enabling the trial of such charges by a judge alone. While some of the interstate legislation has been passed, or modified, to allow for the current difficulties in holding criminal trials due to the pandemic, the legislation in other jurisdictions, and in particular New South Wales and the Australian Capital Territory, was passed before the onset of the pandemic.

The legislative provisions in other jurisdictions are generally similar to those of Victoria. Each of them, in different forms, requires, inter alia, that the court be satisfied that it is in the ‘interests of justice’ for a trial of indictable offences to be heard before a judge alone. There are some differences in the manner in which that requirement is stipulated. For example, in New South Wales, s 132(5) of the Criminal Procedure Act 1986 (NSW) specifically provides that a court may refuse to make an order for a judge alone trial if it considers that the trial will involve factual issues that require the application of ‘objective community standards’. Nevertheless, the principles that have been developed in decisions in other jurisdictions are of some assistance in determining the issues that have arisen in the present case.

In Director of Public Prosecutions v Combo,[18] Chief Judge Kidd of the County Court examined a number of those decisions in an application for trial by judge alone, that was before him, pursuant to s 420D of the Act. In determining that application, his Honour identified six relevant principles, which we endorse, and which are relevant to the determination of the current application. Those principles may be summarised as follows:

(1)Section 420D does not create any presumption in favour of jury trials, nor does it impose a corresponding legal onus on either party to rebut any such presumption. The default position is that the trial will proceed before a jury unless and until the court’s discretion is enlivened, under s 420D(1), to make an order for a trial by judge alone. In such an event, the party making the application effectively bears an onus to persuade the Court that the discretion to order trial by judge alone is enlivened and should be exercised.[19]
(2)The expression ‘the interests of justice’ in s 420D(1)(d) is broad. It includes not only the interests of the parties, but also the public interest in ensuring the integrity and proper functioning of the criminal justice system within the courts.[20]
(3)In that respect, it was the intention of Parliament that justice must continue to be administered by the courts during the current public health emergency arising out of the COVID-19 pandemic.[21] The advantage of continuing with the business of the court is a significant factor in favour of ordering a trial by judge alone in an appropriate case.[22]
(4)In determining whether a judge alone trial would be in the interests of justice, the subjective views of the accused are a relevant consideration, and weight should be given to the subjective preference of the accused to be tried expeditiously by judge alone, rather than enduring a substantial delay for a trial by jury.[23]
(5)The question of delay is relevant. It is not in the interests of justice that accused persons must wait excessively long periods to come to trial. Delay may affect and prejudice the fair trial of the accused. The advantage of obviating delay is a significant factor in favour of ordering a trial by judge alone.[24]
(6)Where a fact in issue involves the application of an objective community standard, that consideration tends in favour of a jury trial, because an assessment of such a standard is best undertaken by a group of members of the community.[25]

[18][2020] VCC 726 (‘Combo’).

[19]Ibid [46]–[47].

[20]Ibid [48].

[21]Ibid [54].

[22]Ibid [62].

[23]Ibid [65]–[66].

[24]Ibid [56]–[62].

[25]Ibid [63].

An examination of the terms of the legislation, and of decisions of interstate courts, bears out each of those six propositions.

Section 420D of the Act, by its terms, does not provide for a presumption in favour of trial by a jury or in favour of trial by judge alone. In the absence of an application by a party, or the court making an order on its own motion, the ‘default position’ is that the trial would proceed by a jury. In those circumstances, the party which makes the application for trial by judge alone bears an onus of persuading the court that the discretion, to make such an order, should be exercised.

In Belghar, McClennan CJ at CL stated in respect of the relevant provisions of the Criminal Procedure Act 1986 (NSW):

Although s 131 provides for trial by jury ‘except as otherwise provided’, I do not think that the section has the effect of creating a ‘presumption’ that the trial should be with a jury, thereby casting a burden of proof on an accused person. Although the accused person carries an evidentiary onus the Court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which a ‘presumption’ of trial by jury is displaced.[26]

[26]Belghar (2012) 217 A Crim R 1, 25 [96]; [2012] NSWCCA 86. See also Arthurs v Western Australia [2007] WASC 182, [82] (Martin CJ) (‘Arthurs’); R v Stanley [2013] NSWCCA 124, [42] (Barr AJ) (‘Stanley’).

Section 420D does not define the phrase ‘the interests of justice’. It is of wide connotation. It necessarily encompasses the interests of each of the parties in the litigation. In addition, the community has a legitimate interest in the efficient and just resolution of criminal trials. The interests of justice include the public interest in the fair and efficient conduct and adjudication of criminal trials.

In Western Australia v Edwards,[27] Corboy J expressed the principle in the following terms:

The expression ‘in the interests of justice’ includes not only the interests of the parties but also the public interest. There is a public interest in maintaining the proper functioning and integrity of the criminal justice system as administered by the courts.[28]

[27][2018] WASC 419.

[28]Ibid [9(c)].

In the context of the current pandemic, in R v UD [No 2],[29] Elkaim J stated:

If it is in the interests of justice that criminal trials should continue then they must continue within the constraints imposed by the public health emergency. If the only means of achieving this end is through judge alone trials, then, subject to unique factors in individual cases, judge alone trials should be ordered. The only caveat to this should be that a judge alone trial that would not enable an accused person to have a fair trial should not be ordered.[30]

[29][2020] ACTSC 90.

[30]Ibid [30].

Sections 420D(1)(b) and (c) contain an express requirement that before an order for a trial by judge alone be made, the court must be satisfied that the accused, having obtained legal advice, consents to the making of such an order. In the absence of an order under s 420D, each party to a criminal proceeding has a right to a trial before a jury. That right is a significant right of each party. For centuries, the right to trial by jury has been understood and upheld, in this State, as a fundamental right of any person charged with an indictable criminal offence. It follows that where an accused person, having obtained appropriate legal advice, makes an informed decision to consent to having the charges heard by a judge alone, the subjective wishes of that accused person must carry substantial weight in the court’s determination whether it is in the interests of justice to make such an order.[31]
[31]Arthurs [2007] WASC 182, [79] (Martin CJ); Belghar (2012) 217 A Crim R 1, 26 [99]; [2012] NSWCCA 86 (McClellan CJ at CL); Stanley [2013] NSWCCA 124, [42] (Barr AJ); R v Qaumi[No 14] (2016) 265 A Crim R 575, 582 [22]; [2016] NSWSC 274 (Hamill J).

Plainly, in the context of the current pandemic, the issue of delay in the holding of a trial in a particular case must be a factor of significant relevance. The courts have long recognised that untoward delay in the resolution of criminal charges places a significant burden on all parties, but particularly on the accused. During that period, the accused will remain subject to serious criminal charges. Ordinarily, the terms of bail restrict the rights and liberties of the accused person. The uncertainty, and strain, affecting persons awaiting trial on serious criminal charges, is a significant consequence of the process. Unnecessary delay has the capacity to prejudice the right of an accused person to a fair trial. Further, it places a difficult burden on victims and witnesses, and may undermine public confidence in the administration of justice.

The fact that a trial may involve a factual issue, that requires the application of objective community standards, would ordinarily be a circumstance that would favour a trial by jury in the interests of justice.[32]
[32]Cf Belghar (2012) 217 A Crim R 1, 26 [97]; [2012] NSWCCA 86 (McClellan CJ at CL).

In Arthurs, Martin CJ, in considering a statutory provision in Western Australia that requires that the Court take into account whether the trial would involve a factual issue that required the application of objective community standards, said the following:

… the application of the subsection has been clearly limited by the legislature to trials in which issues are likely to arise which will involve the determination of the question of whether the particular conduct established in that case falls on one or other side of the line between acceptable and unacceptable conduct in circumstances in which there is a range or spectrum of conduct which may or may not be acceptable according to contemporary community standards.[33]

[33]Arthurs [2007] WASC 182, [63].

In many cases, the determination of an element or elements of a charge brought against an accused person might involve an assessment, by the tribunal of fact, of whether the conduct of an accused contravened objective community standards. Such an assessment may be relevant where the issues to be determined, by the tribunal of fact, include questions of the reasonableness and dangerousness of the conduct of an accused person. The extent, to which the determination of such a question might involve the application of ordinary community standards, will necessarily depend on the particular facts and circumstances of the case. For example, the question whether an accused, charged with culpable driving, drove in a manner that was grossly negligent, would ordinarily involve an understanding by the tribunal of fact of acceptable community standards in the driving and management of a motor vehicle on a public highway. Other cases, however, may be less clear. In particular, where the resolution of the issues in the trial would require an understanding of an area of specific expertise, or where the issues in the trial arise out of circumstances which are not ordinarily within the experience of members of the community, the application of objective community standards may be of lesser moment.

Ground 1 — submissions

In support of ground 1, counsel for the applicants noted that due to the effects of the COVID-19 pandemic, the County Court currently has a very substantial backlog of criminal trials that are pending. In that context, counsel relied on the observations by Chief Judge Kidd in Combo, that the interests of justice encompass, not just the interests to the parties, but also the public interest, which is concerned with the integrity and proper functioning of the criminal justice system.[34] Counsel submitted that the clear intention of Parliament was to enable more trials to be conducted by a judge alone in order to avoid the development of a significant backlog in criminal trials awaiting trial. Counsel contended that although the judge gave recognition to the legislative context of s 420D, his Honour did not give sufficient weight to it.
[34]Combo [2020] VCC 726, [48].

In response, counsel for the respondent noted that the trial judge expressly acknowledged that s 420D was introduced to enable the justice system to function in the face of the difficulties created by the COVID-19 pandemic so that the system of justice would not ‘stagnate’.[35] Counsel submitted that, contrary to the contention advanced on behalf of the applicants, the judge expressly afforded appropriate weight to the purposes of the legislation. However, it was submitted, that question was not determinative of whether it was in the interests of justice that the trial should proceed before a judge alone. Rather, it was but one of the relevant factors that the judge was required to take into account in the exercise of his discretion.
[35]Ruling [48].

Ground 1 — analysis and conclusion

In the section of the ruling, in which the judge dealt with the question of delay, his Honour commenced by noting that the purpose of s 420D was to ‘enable … the justice system to function in the face of the impediments thrown up by measures to counteract the pandemic.’[36] However, in the part of the ruling that followed, the judge confined his consideration to an assessment of the effect on the parties of the delay which would occur if the case was to proceed by a trial by jury.
[36]Ibid.

As we have discussed, the interests of justice do include, but are not confined to, the interests of the parties. Importantly, the interests of justice also encompass the public interest in the continued operation of the courts in the context of the current COVID-19 pandemic.

At the time at which his Honour delivered his ruling, at best, the capacity of the courts to undertake jury trials was, and still is, quite limited, due to the need to ensure that members of a jury be able to maintain appropriate physical distance from each other and from other persons in the court. At the time of the ruling, and at the present time, there was and still is substantial uncertainty as to when the courts will be able to resume the conduct of criminal trials without that constraint. In the meantime, the ability of the County Court, and of the Supreme Court, to conduct trials is quite limited. There is an important public interest in ensuring that during that time, the system of justice is able to work to its maximum capacity in order to address the problem of the accumulation of an excessive backlog of criminal cases awaiting trial in the courts. Section 420D provides an important process which enables, where appropriate, a case to be heard without a jury, so that that case itself does not add to the accumulation of criminal trials waiting to be heard in the courts.

That aspect of the public interest, which forms an element of the interests of justice, is of importance in the determination of an application for a trial by judge alone under s 420D. In that respect, we agree with the observation made by Chief Judge Kidd in Combo:

… 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.[37]

[37]Combo [2020] VCC 726, [62].

While the judge did refer to the overriding purpose of s 420D, he only did so in the context of considering the effect of any delay in a trial by a jury on the parties to the proceeding. In doing so, his Honour did not take into account the consideration which we have just discussed, namely, the broader interest of justice in enabling trials, where appropriate, to proceed before a judge alone, in order to ensure that the courts are able to continue to function to the maximum extent possible in the current circumstances.

For those reasons, we were persuaded that the judge did fail to take into account a material purpose for which s 420D was enacted.

Accordingly, ground 1 of the application must be upheld.

Ground 2 — submissions

In support of ground 2, counsel for the applicants submitted that the judge erred in deciding the application on the basis that the hearing of the charges against the applicants would necessarily involve the application by the tribunal of fact of contemporary community standards. Counsel acknowledged that it was relevant for the judge to consider whether the issues in the trial would involve the application of contemporary community standards. However, it was submitted, in the present case the question of community standards would be ‘tangential’ to the issues in the case.

In that respect, counsel noted that the central issues to be determined, in respect of charges 1 to 8, would be whether the applicants had failed to take specific steps to ensure that the workplace was safe and without risks to health. Counsel contended that that question would not involve the application of community standards, but, rather, it would be essentially a question of fact. Similarly, in respect of charges 9 to 12, the question, whether the applicants recklessly endangered an occupant of a hyperbaric chamber while administering hyperbaric oxygen treatment, would involve the tribunal of fact determining whether the applicants were aware of the probability that the risk would eventuate, and whether they proceeded to act regardless of their awareness of that risk. In such a case, it was submitted, the extent to which objective community standards are relevant would be quite limited.

Accordingly, counsel for the applicants submitted that the judge erred in determining the application on the basis that issues in the trial would involve the application of objective or contemporary community standards.

In response, counsel for the respondents submitted that in considering charges 1 to 8, the tribunal of fact would be required to make a judgment about the existence and degree of the risk to health arising from the workplace, the likelihood of it eventuating, and the degree of harm that might eventuate if the risk was not addressed. In respect of charges 9 to 12, the tribunal of fact would be required to make an assessment about whether a reasonable person, placed in the circumstances of the applicants, would have realised that their actions might have placed another in danger of an appreciable risk of serious injury. Counsel submitted that the resolution of each of those questions involved an application of objective community standards. Further, it was submitted, in considering cases such as this, the judgment of the issues by a jury is important because it reflects current community values about the standards which the community expects to be maintained in the workplace. Accordingly, counsel for the respondent submitted, the judge correctly afforded substantial weight to that consideration in the exercise of his discretion. In making those submissions, counsel for the respondent acknowledged that if the judge erred in regarding that factor as determinative, the exercise of the discretion not to order a judge alone trial would be vitiated.

Ground 2 — analysis and conclusion

It is apparent, from the concluding paragraphs of the judge’s ruling, that his Honour placed substantial weight on the proposition that the determination by the tribunal of fact, of the charges against the applicants, would involve a consideration of whether the applicants’ conduct conformed with contemporary objective community standards.

On analysis, we do not consider that his Honour was correct in that assessment and understanding of the elements of the two sets of charges against the applicants.

The first eight charges against the applicants alleged the failure by them to ensure, so far as was ‘reasonably practicable’, that the conduct of the premises was safe and without risks to health. An assessment by the tribunal of fact, whether the applicants complied with that requirement, will involve a degree of judgment and evaluation as to what was, in the circumstances, ‘reasonably practicable’. However, the question whether the steps, which the prosecution submits the applicants failed to take, were ‘reasonably practicable’, would not involve an assessment according to ordinary objective community standards. It is improbable that the operation of hyperbaric oxygen therapy would be a subject about which there are relevant objective community standards. It is apparent from the summary of prosecution opening that the prosecution will rely, to a significant extent, on the applicable Australian Standard,[38] and on expert evidence, to establish the reasonable practicability of steps which the prosecution alleges the applicants ought to have, but did not, take to ensure the safety and welfare of persons using the chambers in the premises.
[38]Australian Standard AS4774.2 2002.

As counsel for the applicants have pointed out in their written case, in considering charges 1 and 2, the tribunal of fact would need to assess whether there were comprehensive risk assessments conducted by the applicants, and, if the assessments were not made, whether a relevant risk was created by their absence. If the tribunal were to reach an affirmative conclusion in that respect, it would then need to consider whether it would have been reasonably practicable for the applicants to have eliminated or reduced the risk by conducting such a risk assessment. In such an analysis, it is difficult to perceive how the concept of objective community standards would have any bearing on the ultimate adjudication of the central issues that are required to be determined in relation to those charges. Relevantly, it is not apparent that, in determining such a question, a jury would have any necessary advantage over a judge. The same analysis is equally applicable in respect of the issues which would arise in the determination, by the tribunal of fact, of charges 3 to 8.

That analysis also applies to an assessment of the extent to which objective community standards might intrude into the tribunal of fact’s determination of charges 9 to 12. The determination of those charges will require the tribunal of fact to be satisfied, beyond reasonable doubt, first, that there was a risk of endangerment of serious injury in the manner alleged, secondly, that the particular applicants were aware of that risk, and thirdly, that the applicants proceeded to act regardless of their awareness of that risk.[39] Each of those issues would essentially involve a question of fact, rather than an evaluation of the nature and quality of the conduct of the particular applicant. It is not apparent how, in such a case, a court’s understanding of ‘objective community standards,’ if any, could have a bearing on the outcome of the court’s determination of those charges.[40]
[39]Cf R v Campbell [1997] 2 VR 585; DPP Reference No 1 of 2019 [2020] VSCA 181.
[40]Cf Arthurs [2007] WASC 182, [63] (Martin CJ).

For those reasons, we concluded that the judge erred in basing his decision on the proposition that the determination of the charges would involve an assessment of ‘objective community standards’. That error by the judge was central to his Honour’s reasoning, and thus vitiated his Honour’s conclusion that it was not in the interests of justice that the charges be tried by judge alone.

Accordingly, ground 2 must succeed.

Ground 3 — submissions

Under grounds 3(b) and (c), counsel for the applicants noted that in June 2020 the prosecution sought an urgent listing of the trial of the case, because two of the prosecution expert witnesses were undergoing treatment for cancer. Counsel noted, however, that in submissions before the primary judge, the prosecution reversed its position by contending that the ill-health of the two witnesses was capable of being satisfactorily managed. Counsel for the applicants submitted, to this Court, that the issue of the ill-health of the two witnesses is relevant to the present applications. If the health of either witness deteriorated, the prosecution might seek to resort to procedures including the pre-recording of the evidence, or the introduction of the evidence of the witnesses by way of exception to hearsay evidence under the Evidence Act 2008. Counsel contended that either procedure would be unfair to the applicants, because it was important that the evidence of such witnesses be taken contemporaneously and in the context of other evidence given at the trial.

Under ground 3(d), counsel for the applicants submitted that the judge erred, as a matter of fact, in considering that it was probable that if the charges against the applicants were heard before a jury, the case would be listed for trial in term 4 of this year, that is, between 3 October and 16 December 2021. Counsel submitted that in view of the unpredictability of the COVID-19 pandemic, and the various vicissitudes that had occurred during the four months that preceded his Honour’s decision, it was not open to the judge to determine that it was probable that, if the trial in the case proceeded before a jury, it would be heard in the last quarter of 2021.

Further, counsel for the applicants noted that although jury trials have resumed in the County Court, nevertheless, due to the requirement for appropriate social distancing, only a limited number of such trials can proceed at one time in that Court. In light of the uncertainty concerning future course of the virus, and the uncertainties that have already been experienced in relation to it, it is probable that if the case were to proceed as a jury trial it would not be listed until at least the first term of 2022. On the other hand, a judge alone trial could be commenced before 26 April 2021 and be completed by July 2021. Accordingly, it was submitted, the potential delay in the hearing of the trial, if it were to proceed before a jury, would be a significant factor which was underestimated by the judge.

In response, counsel for the respondent outlined, in some detail, the chronology of events that have affected the listing of the trial since it was first listed in February 2020. It was contended that a significant part of the delay that occurred, during that period, was due to the conduct of the applicants, and in particular due to their tardiness in addressing the issue of funding their legal fees.

Counsel for the respondent further submitted that it is incorrect for the applicants to assert that the prosecution has reversed its position. In particular, it was submitted, it was not the prosecution position in June 2020 that the case needed an early trial listing; rather, the prosecution position was that it required urgent case management. Accordingly, counsel submitted that the suggestion of prejudice due to the ill-health of two prosecution experts is speculative, and the judge was correct to consider that that consideration was immaterial.

Counsel for the respondent further noted that the judge found, as a fact, that if the trial were to take place before a jury, it was probable that it would be heard in the fourth term of this year, which would involve a delay of some twelve months from when the application for a judge alone trial came before his Honour. Counsel submitted that the applicants have not demonstrated that his Honour made any relevant error in that finding. Accordingly, it was submitted, it was not open to the applicants, on this application, to proceed on the basis that the trial may not proceed until a later date.

Ground 3 — analysis and conclusion

The submissions advanced by the applicants focused almost entirely on grounds 3(b), (c) and (d).

In respect of grounds 3(b) and (c), it is sufficiently clear that the judge took into account the ill health of the two prosecution expert witnesses only as a matter which might affect the capacity of the prosecution to present its case.[41] In that respect, his Honour did not take into account that the potential unavailability of those two witnesses to give evidence in the course of the trial might constitute a forensic disadvantage to the applicants in their defence of the charges against them.
[41]Ruling [25]–[26].

Apparently, the potential ill health and unavailability of one of the expert witnesses has been accommodated by having the evidence of that witness taken under s 198 and s 198B of the Act. The other expert witness was cross-examined at the committal proceeding. Accordingly, there is some force in the proposition advanced on behalf of the applicants that, if either of those witnesses become unavailable to give evidence at the trial, the prosecution might succeed in an application to have the evidence previously taken from those witnesses, admitted in evidence pursuant to s 65(5) of the Evidence Act. If such a course were to take place, it might involve a forensic disadvantage to the applicants, and indeed, it may to some extent, detract from the fairness of the trial. It is ordinarily preferable that evidence given by expert witnesses be adduced at the trial, in the course of evidence, so that the expert evidence can address, and the witnesses be cross-examined about, the issues as they have emerged from the evidence given in the trial itself.

To that extent, his Honour did fail to take into account a relevant disadvantage to the applicants, if the trial of the charges were not to take place in the near future. However, the weight which ought to have been given to that consideration was quite marginal. First, it has not been contended on behalf of the applicants that they did not have a sufficient opportunity to cross-examine either such expert in the preliminary hearings. Secondly, in any event, it is not apparent whether the experts will be unavailable to give evidence at trial if the case were to proceed by way of a trial by jury. Thirdly, and conversely, it is not apparent whether the witnesses would be available to give evidence even if the trial were to occur at an earlier date by way of a trial by judge alone.

In respect of ground 3(d), the judge, in his ruling, noted that he had been provided with two prospective time-lines which predicted when it was anticipated that the trial of the action, if it proceeded before a jury, would be listed. His Honour considered that the second time-line was more likely to apply, and, based on that consideration, noted that it would be likely that the trial would be listed in the fourth term of 2021.[42]
[42]Ibid [54].

By ground 3(d), the applicants take issue with the judge’s preference for the second, rather than the first, scenario. However, counsel for the applicants has not demonstrated how the judge made any factual error in selecting that scenario. It may be remarked that any prediction as to when the trial might be able to proceed before a jury must be affected by significant degree of uncertainty at the present time. However, it was common ground before the judge, and the judge accepted, that in any event a trial by judge alone would occur at an earlier date than a trial by jury. In those circumstances, we were not persuaded that the error, alleged in ground 3(d), was made out.

In summary, then, the judge did fail to give adequate weight to the effect of the potential unavailability of the two expert witnesses on the conduct of the defence of the charges. However, for the reasons which we have outlined, we consider that that consideration was of minor importance in the determination of the question whether it was in the interests of justice that the case proceed before judge alone. Apart from that consideration, the applicants have failed to make out any of the propositions advanced under ground 3.

Ground 4 — submissions

In support of ground 4, counsel for the applicants noted that the judge identified the nature of the scientific evidence that would be adduced at the trial. His Honour acknowledged the complexity of that evidence, and accepted that it would be more efficiently explored in a trial before a judge alone. Counsel submitted that the judge erred in concluding that, nevertheless, the complexity of the evidence did not favour a trial by a judge alone. Counsel further submitted that the judge failed to adequately take into account that, in a case such as this, which involved evidence of complexity and considerable length, the giving of reasons by a judge would enhance the interests of justice. Such a process would enable the reasoning to be exposed and open to scrutiny, whereas the reasoning by the jury would, of necessity, remain ‘opaque’.

In response, counsel for the respondent submitted that the judge correctly assessed the question of the complexity of the evidence in the case. It was submitted that it was open to the judge to consider that the nature of the evidence, and the value of a judge giving reasons, was neutral or of only marginal relevance, and that it was outweighed by the other relevant factors in the exercise of the discretion.

Ground 4 — analysis and conclusion

It might be accepted that the potential complexity of some of the issues in the case, and the estimated duration of the trial, would favour a trial by judge alone and not by a jury. In addition, it has been recognised, particularly in cases of this nature, that there is some advantage in an adjudication that involves the provision of a reasoned judgment explaining the basis of the decision of the court.[43]
[43]Cf Arthurs [2007] WASC 182, [90] (Martin CJ); Belghar (2012) 217 A Crim R 1, 29 [112]; [2012] NSWCCA 86 (McClellan CJ at CL).

On the other hand, trial by jury has important advantages and benefits which should not be underestimated. The fact that trial by jury has continued over many centuries, and that it has been the sole means of trial of indictable offences in the superior courts of this State, is due to the experience, of those involved in the justice system, of the great strength and merits of such a means of determining criminal charges. It is important that the capacity of juries to grapple with and determine issues of some complexity should not be underestimated. Over a long period of time, juries, by their verdicts, have demonstrated, time and again, the merits of that system of justice. In addition, it is recognised that trial by jury does, ordinarily, enhance the public acceptance and confidence in our system of justice.[44]
[44]Fittock v The Queen (2003) 217 CLR 508, 516 [23]; [2003] HCA 19 (McHugh J); Stanley [2013] NSWCCA 124, [43] (Barr AJ); Farrugia [2017] NSWCCA 197, [10] (Basten JA).

In ordinary circumstances, the considerations relied on by the applicants, under ground 4 would not, of themselves, prevail in an application for a trial before judge alone in the present case. However, there is one specific circumstance, recognised in the legislation, which provides a particular advantage to the hearing of the charges in the present case by judge alone.

As we have mentioned, due to the current pandemic, the courts have been required to impose particular constraints on the manner in which jury trials are being conducted, in order to protect and ensure the safety and welfare of members of the jury. Ordinarily, trial by judge alone is more flexible than trial by jury. The constraints that have been imposed, to cater for the difficulties arising from the pandemic, have reduced any flexibility which might be exercised in the course of a trial by jury to cater for factors such as the unavailability of witnesses and the like.

To that extent, it might be accepted that the judge did not appropriately take into account the consideration that, in a case such as the present, the lack of flexibility, if the trial were to proceed by a jury, is a matter relevant to an assessment of whether it was in the interests of justice that the trial proceed before a judge alone. We do not consider that his Honour erred by failing to take that circumstance into account. However, as we will shortly discuss, it is a matter that is relevant to the overall question of whether, in the present case, the judge erred in failing to conclude that it was in the interests of justice that the trial proceed before a judge alone.

Summary of conclusions

For the reasons we have discussed, we decided to grant leave to appeal, and to allow the appeal, on grounds 1 and 2. As a result of those conclusions, and our discussion in respect of matters argued under grounds 3 and 4, it follows that the judge erred in concluding that it was not in the interests of justice that the charges be heard by judge alone.

In the present case, it is apparent that there was a group of factors that pointed powerfully in favour of a conclusion that it was in the interests of justice that the charges against the applicants be heard by a judge alone. In our view, the combined weight of those factors was such that we do not consider that it was open to the judge to reach any other conclusion than that it was in the interests of justice that the charges be heard before a judge alone.

The first factor is that the applicants each gave informed consent to the trial proceeding before a judge alone. For the reasons we have discussed, such a consideration is one of some weight in a case such as this. The fact that the applicants were prepared to forego their right of trial before a jury, is, as the cases have indicated, a consideration of some weight in determining whether it was in the interests of justice that the trial proceed before a judge alone.

In that context, it is relevant that the prosecution did not suggest, either before the judge, or on this application, that if the charges were to be heard before a judge alone, there would be any unfair prejudice to the prosecution.

The second relevant factor is that, on any view, a trial of the charges against the applicants would proceed at an earlier date, if they were to be tried by a judge sitting alone. As we have discussed, any prediction as to when such a trial might proceed, if it were to be heard by a jury, would be fraught with uncertainty. While the judge considered that such a trial might proceed in the fourth term of the current year, that prediction must be hedged with a significant degree of uncertainty, so that there is a substantial prospect that the trial may not proceed until a later date. On the other hand, it is quite apparent that if the charges are to be heard before a judge alone, the trial of them may proceed at a significantly earlier date. In that respect, we note that in the hearing before the primary judge (in December 2020), the prosecution accepted that such a trial might proceed before a judge alone as early as March or April of this year.[45]
[45]Ruling [49].

The question of delay is important for a number of reasons. As we have discussed, any delay in the hearing and determination of criminal charges places a very significant strain on any accused person. Further, delay may adversely affect the memories of witnesses, and may undermine the fairness of the trial. In the present case, the ill health of two of the prosecution’s expert witnesses is also a factor of some importance.

In addition, as we have discussed, at the present time, a trial by judge alone would permit a court to operate with substantially more flexibility than a trial before a jury, particularly in view of the procedures that have been introduced in jury trials to cater for the effects of the current pandemic. In a case of this kind, it may be fairly anticipated that the degree of flexibility, provided by a judge alone trial, would facilitate the hearing of the trial, assist it to proceed more coherently, and also enable the court to cater for the requirements of particular witnesses and the parties.

Finally, for the reasons we have earlier discussed, there is, we consider, a substantial public interest in the courts being able to continue their business in hearing criminal cases that are awaiting trial. The County Court is the major trial court of the State. Due to the suspension of jury trials for a significant part of 2020, that Court has, unsurprisingly, a significant backlog of cases awaiting trial before a jury. In that context, it is in the interests of justice that, where appropriate, trials proceed to be heard before a judge alone, where, as in this case, the accused have each consented, the case is suitable for adjudication by a judge alone, and the case does not significantly involve an adjudication based on objective community standards.

As a result of the combined effect of those factors, we concluded that it was not open to the judge to determine that it was not in the interests of justice that the trial proceed before a judge alone. Rather, in our view, the factors which we have outlined compelled a conclusion that the trial of the charges against the applicants by judge alone is in the interests of justice.

For those reasons, we decided, and made orders, that the application for leave to appeal should be granted, the appeal allowed, the relevant orders of the judge be set aside, and that in lieu it be ordered that all the charges against the applicants be tried by judge alone.

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Citations

Hooper and Oxymed Australia Pty Ltd v Director of Public Prosecutions [2021] VSCA 68

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[2021] VSCA 68

23 March 2021