McInnes v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0114

LUKE McINNES	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2022
DATE OF JUDGMENT:	30 August 2022
DATE OF REASONS:	2 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 188
JUDGMENT APPEALED FROM:	DPP v McInnes (Ruling No 2) [2022] VCC 1357 (Judge Riddell)

---

CRIMINAL LAW – Appeal – Indictment containing multiple charges of rape and other offences – Two complainants – Appellant sought trial by judge alone – Prosecution did not oppose application – Appeal against refusal of application – Whether judge erred in the exercise of discretion – Leave to appeal granted – Appeal allowed – Trial by judge alone ordered.

---

Counsel
Appellant:		Dr M Fitzgerald
Respondent:		Mr B Kissane QC with Mr N Batten
Solicitors
Appellant:	Doogue + George Defence Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

An indictment filed in the County Court charges the appellant with sexual and other offences against two adult female complainants, ‘LV’ and ‘CM’, with both of whom, at different times, he was in a domestic, sexual relationship.
The charges involving LV include a charge of common assault,[1] a charge of false imprisonment[2] and 10 charges of rape,[3] in a period between 1 November 2011 and 8 January 2014; and those involving CM include one charge of false imprisonment,[4] two charges of making a threat to kill,[5] three charges of indecent assault[6] and nine charges of rape,[7] in a period between 1 April 2014 and 30 June 2017.
[1]Charge 1.
[2]Charge 3.
[3]Charges 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12.
[4]Charge 16.
[5]Charges 23 and 25.
[6]Charges 18, 19 and 20.
[7]Charges 13, 14, 15, 17, 21, 22, 24, 26 and 27.
Much of the sexual offending alleged against both complainants is said to have occurred in a ‘bondage’ setting, accompanied by the use of sex devices and restraints. The charges of rape include penile-vaginal, penile-anal and penile-oral penetration, together with vaginal ‘fisting’ and penetration of the vagina and anus with objects.
The appellant’s ‘defence’ may be gleaned from the first paragraph of the Defence Response to Summary of Prosecution Opening:
The accused denies the charges against him. He was in a relationship with each of the complainants in this matter and engaged in consensual sexual activity with them during the period covered by the indictment.
On 22 August 2022, the day that the matter was listed for a jury trial, counsel for the appellant sought an order under s 420E(1) of the Criminal Procedure Act 2009 (‘CPA’) that the charges in the indictment ‘be tried by the trial judge alone, without a jury’. The prosecution did not oppose the making of the order.
Notwithstanding that the prosecution did not oppose the making of the order, the judge refused it (‘the ruling’ or ‘the decision’).[8]
[8]DPP v McInnes (Ruling No 2) [2022] VCC 1357 (‘Reasons’).
Pursuant to s 420I of the CPA, the appellant sought leave to appeal against the decision on five grounds:[9]
[9]The applicant also sought leave under s 420M(1)(b) to make further submissions. We gave that leave during the hearing of the application.
1    It is in the interests of justice that the indictment be tried by judge alone, having regard to the accused’s preference for trial by judge alone, the nature of the evidence and the prosecution case, and the danger of the jury becoming aware of inadmissible prejudicial material.
2    The learned trial judge erred in approaching the question as whether the interests of justice ‘required’ the trial to be heard by judge alone, in that a trial with a jury would be unacceptably unfair.
3    The learned trial judge erred in:
(a) approaching the question in terms of whether the issues in the trial were ‘routinely’ considered by juries;
(b) finding that the issues in the trial were likely to be within the ordinary experience of members of the jury.
4 The learned trial judge erred in treating the avoidance or reduction of delays in the court system as the legislative purpose applicable to the ‘interests of justice’ test.
5    The learned trial judge erred in giving no weight or insufficient weight to the accused’s preference that the charges on the indictment be tried by judge alone.
Following oral argument on 30 August 2022, we made orders granting leave to appeal; allowing the appeal; setting aside the decision; remitting the matter to the County Court; and ordering that the appellant’s trial be conducted by a judge alone without a jury. These are our reasons for those orders.

A trial by judge alone may be ordered if it is in the interests of justice

Section 420E(1) of the CPA permits a court to make an order for trial by judge alone (while a pandemic declaration is in force)[10] if four criteria are met: first, each charge is for an offence against the law of Victoria; secondly, each accused consents to the making of the order; thirdly, the court is satisfied that the accused has received legal advice on whether to consent; and, fourthly, the court considers that it is in the interests of justice to make the order. It provides:
[10]Section 420E is part of a suite of provisions introduced by s 3 of the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022, with effect from 30 March 2022. Section 1 provided that one of the purposes of the Act was to amend the CPA ‘to provide temporary arrangements for trial by judge alone on an order made or applied for while a pandemic declaration is in force’.
420E Court may order trial by judge alone if pandemic order is in force
(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 while a pandemic declaration is in force; or
(b) at any time on an application made by the prosecution or an accused while a pandemic declaration is in force.
(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.
In the present case, it was not disputed before the trial judge that the first three criteria in s 420E(1) were met. The principal issue was whether it was in the interests of justice to make the order.

Appellant’s submissions to the trial judge

In summary, counsel for the appellant submitted to the trial judge that it was in the interests of justice to make an order for trial by judge alone for the following reasons:
·    First, the appellant consented to trial by judge alone, his subjective wishes carrying ‘substantial weight’.[11]
·    Secondly, the primary issue in the trial will be whether the incidents the subject of the charges occurred as alleged, so that the complainants’ credibility with respect to disputed facts, and their characterisation of their sexual relationship with the appellant, will be in issue. But the application of objective community standards – which may point in favour of a jury trial – is of no real significance.[12]
·    Thirdly, the circumstances of the sexual relationships in which the facts in issue – including as to consent and belief in consent – are unusual. There are issues concerning consent to the use of restraints and sexual instruments. Photographic evidence of at least one complainant being vaginally penetrated by an object and a fist, with some photographs in the sequence showing bleeding, is a feature of the prosecution case. The likelihood of a strong emotional response by a jury – which will likely colour and influence their consideration of the evidence and issues – points in favour of a trial by judge alone. It is likely to be too burdensome for a jury to rationally determine issues of consent and belief in consent in that context.
·    Fourthly, although delay in the commencement of the trial is not in this case a factor in determining whether the interests of justice favour a trial by judge alone, recent experience shows that the current operating environment for jury trials remains a difficult one. The flexibility of a trial by judge alone would be consonant with the interests of justice, given that the trial is estimated to be of at least moderate duration (possibly 12 to 15 days).
[11]Counsel cited Hooper [and Oxymed Australia Pty Ltd] v DPP (2021) 288 A Crim 211, 221-2 [37], 222–3 [44] (Kyrou, Kaye and Emerton JJA) (‘Oxymed’).
[12]Ibid [47].

Prosecution submissions to the trial judge

As we have mentioned, the prosecution did not oppose the defence application for trial by judge alone. The prosecutor did, however, submit that s 420E ‘is intended to enable the court to deal with, efficiently, the backlog of cases’ caused by the pandemic. And ‘[w]hilst delay is not an issue in the sense that the matter is presently listed for trial, nonetheless there’s still enormous pressure on the trial system, and the pandemic is continuing to impact’. He also observed that Oxymed is an ‘authority which indicates that the wishes of the accused are a matter [sic] to be given substantial weight’. Moreover, based on his recent experience, the prosecutor submitted ‘that in a judge alone trial, there is more flexibility in continuing a trial in the face of any disruptions or difficulties’ flowing from the pandemic.
Additionally, the prosecutor suggested to the judge that, if she refused the application, she should give consideration to empanelling extra jurors to mitigate the ongoing risk of jury discharge associated with the pandemic. He also informed the judge that he would not seek to lead some of the ‘flagrantly prejudicial material’.

The judge’s ruling

The judge commenced her ruling on the application by setting out the terms of s 420E, and noting the precedential value of Combo[13] by reason of its endorsement in Oxymed.[14]
[13]DPP v Combo [2020] VCC 726 (Chief Judge Kidd) (‘Combo’).
[14] Reasons, [3]–[5].
Next, the judge noted that the charges ‘arise from intimate partner relationships’ with the complainants, and that the ‘sexual relationships are said to have included consensual sado-masochistic activity, including the use of restraints and other instruments’. The appellant (aged 45), the judge noted, had a child with LV (aged 39), and two with CM (aged 41). The charges, she said, all satisfy s 420E(1)(a).[15]
[15]Reasons, [6]–[10].
The judge observed that the issues in any trial will be whether the prosecution ‘can prove beyond reasonable doubt that the sexual activity as alleged occurred in the manner described by each complainant’. A number of incidents of sexual activity ‘start consensually’, the judge said, the issue being ‘whether the complainant consented to various acts and the accused was aware that the complainant was not consenting or might not be consenting or gave no thought to consent, and on occasion whether consent was withdrawn and the accused was aware the complainant was not consenting or might not be consenting or gave no thought to consent’. The appellant, the judge noted, ‘denies any violence during the relationships and says any sexual activity between him and each complainant was consensual’.[16]
[16]Reasons, [11]–[14].
Both criteria in ss 420E(1)(b) and (c), the judge said, were ‘satisfied’. And, citing Oxymed,[17] she said that she took ‘the [appellant’s] election into account’.[18]
[17]Oxymed, 222–3 [44].
[18]Reasons, [15]–[18].
The judge said the ‘real issue’ in the application was whether she concluded that it was in the ‘interests of justice to make the order’ for trial by judge alone. Referring to Oxymed (and Combo), she said that ‘there is no presumption in this court of a preference for jury trials’, the appellant bearing ‘the persuasive onus of establishing that the discretion is enlivened and should be exercised’. The expression ‘the interests of justice’, the judge said, ‘is a broad one and includes not only the interests of the parties but the interest of the community in ensuring the proper functioning of the criminal justice system with integrity and efficiency’.[19]
[19]Reasons, [19]–[21].
Having set out a chronology; noted the estimate for the trial is 12 to 15 days; and said that the prosecution had ‘taken a neutral position’;[20] the judge turned to the submissions made by the appellant’s counsel in support of an order for trial by judge alone, observing that there were ‘a number of matters raised in the outline of submissions which in my view are neutral as far as this application is concerned’.[21]
[20]Reasons, [22]–[27].
[21]Reasons, [28].
The judge then observed that delay was not an issue, and whether the trial proceeds before a jury or judge alone ‘does not impact when it would be heard’. Although the COVID-19 pandemic ‘is still causing disruptions to trials by way of jury discharges … that seems to be less so’. Should the matter proceed as a jury trial ‘it would be prudent to empanel extra jurors to ensure that if any juror succumbs to COVID … that will not interrupt the trial proceeding’.[22]
[22]Reasons, [29]–[32].
Further, the judge said, the ‘length of the trial will not be significantly affected by either a jury hearing the trial or a judge alone’. The estimate for a jury trial is 12 to15 days, and 10 to 12 days for a judge alone trial. Given the necessity for a written decision in a judge alone trial – which will take the trial judge time to write – ‘any time saved may be artificial’.[23]
[23]Reasons, [33]–[36].
The judge observed that the period covered by the indictment was not, in context, ‘lengthy’, and the indictment was not ‘overloaded’. There had been no challenge to a tendency ruling, and, in any event, the ‘specific sexual charges do not occur in a sea of uncharged sexual acts’. Photographic evidence – showing a complainant being vaginally penetrated by an object and a fist – ‘can be managed’. And the judge rejected the submission that directions on consent – charges 24, 26 and 27 ‘relate to a time frame after amendment to the consent laws’ – will ‘involve unnecessarily complex directions’.[24]
[24]Reasons, [37]–[52].
Ultimately, the judge noted, the ‘two aspects of the application which are ultimately relied on and are at the heart of the application are … [t]he suitability of issues for determination by judge alone; and [d]anger of prejudice to the [appellant] in the context of a jury trial’. The judge accepted that ‘the finder of fact will not be required to determine an objective community standard’, and said that ‘the credibility of each complainant will be in issue and the trial will turn on disputed facts and characterisations of the relationships’. There will be issues of consent, and the withdrawal of consent during sexual activity, those matters routinely being entrusted to juries, who bring a ‘collective assessment’ to ‘current community views and experiences’. The judge said that there ‘is nothing about those matters which suggest it is in the interests of justice for a judge alone to make that determination’.[25]
[25]Reasons, [53]–[55].
Much of the sexual activity in the case, the judge noted, involves ‘sadomasochistic sexual practice’, defence counsel contending that it will be difficult for the jury to remain ‘open minded’ in ‘considering evidence in a trial of that nature and with a current estimate of two to three weeks’.[26] The judge observed that 22 of the 27 charges on the indictment are ‘sexual offences’. She then discussed the specific allegations attaching to a number of those charges and said there is nothing ‘which makes them vastly different or uniquely different from what juries deal with daily and which would suggest it is in the interests of justice that they be determined by a judge alone’. Although the specific allegations contained in a number of charges ‘are likely to be shocking to most jurors, they are not so extreme as to require determination by judge alone in the interests of justice’.[27]
[26]Reasons, [56]–[63].
[27]Reasons, [64]–[77].
The judge next referred to a ruling that she had made on tendency evidence, and said that ‘the sexual activity involving devices and restraints occurs consensually within the relationship’. Any ‘prejudice or perhaps repugnance a juror may feel about those practices is therefore likely to run also against the complainants’. The judge was not persuaded that the evidence of those practices dictated ‘that it is in the interests of justice to require a judge alone trial’. She did ‘not accept that the accused cannot receive a fair trial before a jury’. Juries, the judge said, ‘understand the need to put aside emotional reactions’, and ‘to put aside any bias or prejudice they may feel for or against one or other party’. They ‘abide by directions’ and ‘ would be capable here of determining the discrete allegations even against the broader background alleged by each woman individually and in the context of tendency’.[28]
[28]Reasons, [78]–[87].
Finally, the judge said that she should interpret the ‘broad’ expression ‘interests of justice’ with the purpose of the legislation in mind: ‘namely to enable the courts to efficiently and fairly deal with the backlog of pending criminal trials which have arisen due to the impact of the pandemic’. The judge stated that she gave ‘some consideration’ to the applicable Second Reading Speech, and noted the purpose of the provisions permitting judge alone trials was to help clear backlogs of cases, in a situation where delays in criminal proceedings can have an adverse impact on complainants, victims and accused persons (particularly those being held on remand while awaiting trial).[29] She concluded her reasons as follows:[30]
I note finally the comments of Elkaim J in R v UD (No 2)[31] in the ACT in the context of the current pandemic:
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 ... (emphasis added)
While I accept there is no preference for jury trial, in my view there must be unique factors in a given case which persuade the court that it is in the interests of justice that the matters be determined by judge alone. Here, most of the charges are of the kind routinely dealt with by juries. The fact that there is a backdrop of sexual activity and several charges concerning the use of sexual devices and restraints does not persuade me that this matter should be a judge alone trial in the interests of justice. That is particularly so when most of those incidents start with consensual activity involving those implements.
In my view a jury properly directed will be able to determine those issues without being overwhelmed or succumbing to an emotional response. Juries do so each day in this court in relation to a range of difficult, confronting material which is often alien to most people’s life experience.
For these reasons I reject the application.
And I so rule.
[29]Reasons, [88]–[92].
[30]Reasons, [93]–[96] (emphasis as in original).
[31]R v UD (No 2) (2020) 282 A Crim R 436 [‘UD’].

It will be noted from the passage extracted immediately above that, while the judge accepted that ‘there is no preference for jury trial’, she was of the view that ‘there must be unique factors in a given case which persuade the court that it is in the interests of justice that the matters be determined by judge alone’.

Principles that guide the grant of an order for trial by judge alone

The immediate forerunner of s 420E of the CPA was s 420D, enacted during an earlier stage of the COVID-19 pandemic.[32] Significantly, the approach to s 420D – which was in the same terms as the present s 420E – was the subject of authoritative guidance in Oxymed.
[32]See COVID-19 Omnibus (Emergency Measures) Act 2020.
Oxymed was a case in which an individual and a company were charged with four offences under s 26, and two under s 32, of the Occupational Health and Safety Act 2004. In the face of opposition from the prosecution the two accused sought, but were refused, a trial by judge alone. An appeal to this Court by the accused succeeded, and an order was made that all the charges against them be tried by judge alone.
The applicants in Oxymed offered hyperbaric oxygen therapy to the public through a facility at premises in South Yarra. Each charge arose out of their provision of oxygen therapy to an individual who lost consciousness in the course of the treatment, and died less than a week later. Unsurprisingly, there was a deal of scientific evidence to be led at trial.
In allowing the appeal, the Court said that it was ‘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’, and that ‘the combined weight of those factors’ meant ‘that it was [not] 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’.[33] In summary, those factors were: first, the applicants each gave informed consent to the trial proceeding before a judge alone; secondly, 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; thirdly, in the circumstances that subsisted at that time, a trial by judge alone would permit a court to operate with substantially more flexibility than a trial before a jury; and, fourthly, there was a substantial public interest in the courts being able to continue their business in hearing criminal cases that are awaiting trial.[34]
[33]Oxymed, 251 [90].
[34]Ibid 231–2 [91]–[96].
The Court endorsed six principles identified in Combo. Suitably adapted, those principles are:[35]
(1)Section [420E] 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 420E(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.
(2)The expression ‘the interests of justice’ in [s 420E(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.
(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. 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.
(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.
(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.
(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.
[35]Ibid 251–2 [37] (footnotes omitted; emphasis added).
The Court made it clear that the power to grant an application for a trial by judge alone is, of its nature, discretionary,[36] and that the party seeking an order for trial by judge alone bears an onus of persuading the court that the discretion to make such an order should be exercised.[37]
[36]Ibid 219 [28].
[37]Ibid 222 [39].
The Court also made it clear that, since the right to trial by jury is a fundamental right of any person charged with an indictable offence, the subjective wishes of an accused person making an informed decision (after legal advice) to consent to trial by a judge alone ‘must carry substantial weight in the court’s determination whether it is in the interests of justice to make such an order’.[38]
[38]Ibid 222–3 [44].

The appellant’s submissions in this Court

Counsel for the appellant submitted that the only issue raised by the application for trial by judge alone was whether it was in ‘the interests of justice’ to make an order that the indictment be tried by judge alone.
Under cover of the first ground, pursuant to s 420M(2)(b) of the CPA counsel sought to rely on matters additional to those agitated before the trial judge. Hence, counsel submitted that, given the ‘emotionally charged’ atmosphere permeating the case, there is a real risk in a jury trial that the complainants will, in the course of their evidence, through non-responsive or discursive answers, introduce prejudicial material before the jury – excluded by agreement – causing the trial to miscarry. The prejudicial material referred to includes: alleged disclosures by the appellant’s first wife that he anally raped and physically abused her; a belief by CM that the appellant’s subsequent partner also suffered physical abuse; the complainants’ assertion that the appellant has an interest in ‘sexual homicide’; a suggestion by CM that the appellant had an interest in, and possessed, child pornography; an allegation by CM that the appellant demanded sex from her when her father was dying in the next room; and other matters.
Counsel for the appellant bundled grounds 2 and 3 together, submitting that each of these grounds complain that the trial judge failed to give effect to the ‘principle’ that s 420E does not provide for a presumption in favour of trial by jury. There is nothing in the legislation to suggest that ‘the interests of justice’ must require trial by judge alone. If there were such a requirement, it would be difficult to see why the subjective preference of the accused would be a consideration entitled to ‘substantial weight’.
Moreover, the judge’s decision crucially is infected by discrete error, in that she reversed the meaning of the statement of principle by Elkaim J in R v UD (No 2).[39] Thus, the proposition permeating the judge’s reasons – that ‘there must be unique factors in a given case which persuade the court that it is in the interests of justice that the matters be determined by judge alone’ – materially mis-states the applicable principle. The effect of that mis-statement of principle was that the judge gave effect to an implied presumption in favour of jury trial, which resulted in the judge’s exercise of discretion ‘being fettered and exercised with more stringency than principle and authority require’. Thus, the judge misapplied ‘the interests of justice’ test, and her exercise of discretion thereby miscarried.
[39]See [26] above.
For the purposes of ground 4, counsel submitted that, although it must be accepted that a legislative concern with delays in the criminal justice system resulting from the COVID-19 pandemic was a motivating factor in the enactment of the provisions under consideration, the expression ‘the interests of justice’ is not concerned with delay. Indeed, it is an expression used in similar legislative provisions interstate which were not enacted during pandemic times. Hence, the judge erred by treating the avoidance or reduction of delays in the court system as the legislative purpose applicable to the ‘interests of justice’ test.
As to ground 5, counsel submitted that, although the judge took the appellant’s wish to be tried by judge alone ‘into account’,[40] she cannot have given that aspect sufficient weight. As was made clear in Oxymed,[41] the subjective wishes of the appellant making an informed decision (after legal advice) to consent to trial by a judge alone should have been afforded ‘substantial weight’. Notwithstanding that the appellant’s subjective preference for trial by judge alone was one of the central planks of his application, the judge’s reasons do not expose what weight was given to that factor. In the proper exercise of discretion, no countervailing considerations outweighed the importance of this aspect.
[40]See [17] above.
[41]Oxymed, 222–3 [44].

The respondent’s submissions in this Court

As we have mentioned, the respondent did not oppose the application for a judge alone trial. Counsel for the respondent submitted that the respondent’s position was – and remains – ‘neutral on the outcome of the application’.
Having adopted that position, the respondent’s counsel submitted that the judge’s decision was one that was reasonably open. Whilst the legislation does not provide for any presumption as to the mode of trial, the ‘default position’ is trial by jury, and the appellant had an onus of persuading the court that the discretion to order trial by judge alone should be exercised.
With respect to the first ground, counsel submitted that whilst the danger of the jury becoming aware of inadmissible material existed, that danger exists in many cases. There are no circumstances that give it particular significance in this case.
Counsel for the respondent submitted that the judge took into account the appellant’s preference for trial by judge alone and that it was to be given substantial weight. But an accused person does not have a right to demand trial by judge alone, and, in this case, since the trial was about to proceed, the appellant’s subjective preference did not fall to be assessed against a substantial delay.
It was also reasonably open to the judge to find, counsel submitted, that the nature of the evidence was not such that the appellant could not receive a fair trial before a jury, and that any prejudice was not of such moment as to persuade the court that a judge alone trial was in the interests of justice.
Under grounds 2 and 3, counsel for the respondent submitted that the judge’s reliance on UD was apt. The statement that there must be ‘unique factors in a given case’ which persuade the court that a judge alone trial is in the interests of justice did no more than give effect to the default position and the need to demonstrate the existence of factors in this particular case which warranted the order sought being made. The judge was correct to find that there was nothing about the issues in the trial that suggested it was in the interests of justice for a judge alone to determine them.
With respect to ground 4, the respondent’s counsel submitted that it was not an error for the judge to have regard to the fact that the legislation existed to enable the courts to efficiently and fairly deal with the backlog of pending cases caused by the pandemic. Hence, the judge correctly concluded that delay and the backlog of criminal trials were neutral factors in applying ‘the interests of justice’ test.
Finally, as to ground 5, the respondent’s counsel submitted that the weight to be given in a particular case to the accused’s preference for judge alone trial may depend on the circumstances and reasons for that preference. It was open to the judge to conclude that the appellant’s wishes should not have decisive weight in the absence of other considerations favouring trial by judge alone (such as a significant delay in accommodating a jury trial).

The legislative regime governing appellate intervention

Section 420H of the CPA defines a ‘decision regarding trial by judge alone’ as including a decision to refuse an order under s 420E; and s 420I permits a party to a proceeding in which a court makes a decision regarding trial by judge alone to appeal to this Court if given leave to do so. By virtue of s 420J(1) the Court may grant leave ‘only if the court is satisfied that it is in the interests of justice to do so’.
If leave is granted, s 420M(1)(a) provides that the appeal is to be determined on the basis of submissions made by the accused and the prosecution to the trial judge in relation to the decision (unless, under sub-s (1)(b) the Court gives either party leave to make further submissions). Sub-section (2) permits the Court on appeal to affirm or set aside the decision. If it sets aside a decision not to order trial by judge alone, the Court may then order that the trial proceed by way of judge alone, and remit the matter to the trial court. And sub-section (3) provides that, upon remittal, the Court may give directions as to the manner of trial.
In Oxymed, the Court was concerned to apply the immediate forerunner of s 420M – s 420L – which was identically worded. The Court considered the principles that apply to the determination of an application for leave to appeal such as the present, and made it clear that the appellants must demonstrate that it is reasonably arguable that the judge erred in declining to determine that the trial should proceed by a judge alone.[42]
[42]Oxymed, [25].
The Court observed that 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. Hence, s 420E(1) provides that a court ‘may’ make an order for a trial by judge alone if satisfied as to each of the four criteria in sub-paras (a) to (d), so that the power of a court to grant an application for a trial by judge alone is discretionary. As the Court said, the first three criteria are ‘essentially factual’. The discretionary nature of the power of the court to order a trial by judge alone arises from the provisions of sub-para (d); that is, the court ‘considers that it is in the interests of justice to make the order’.[43]
[43]Ibid 219 [28].
Determination of the fourth criterion, the Court said, ‘necessarily involves an evaluation by the court of the relevance of, and weight to be accorded to, a number of important considerations’.[44] The Court continued:[45]
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,[46] 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.[47]
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.
[44]Ibid 219 [29].
[45]Ibid 219–20 [29]–[30] (emphasis added to the passage cited from Farrugia).
[46][2017] NSWCCA 197 (‘Farrugia’).
[47]Ibid [8] (citations omitted). See also Brown v DPP (NSW) [2018] NSWCCA 94, [13] (Basten JA).
In the resolution of the present application, we will, of course, adopt the approach spelled out in Oxymed.

Discussion

As Basten JA observed in Farrugia,[48] a decision under s 420E(1) involves a ‘binary choice, albeit that the criteria will engage an evaluative judgment’.
[48]See [53] above.
When carrying out the evaluative judgment required by the ‘interests of justice’ criterion, the judge in the present case considered that delay was not an issue; the length of the trial would not be significantly affected by either a jury trial or trial by judge alone; the period covered by the indictment was not lengthy and the indictment was not overloaded; and, although the allegations contained in a number of charges are likely to be shocking to most jurors, they are not so extreme as to require determination by judge alone in the interests of justice. Significantly, whilst acknowledging that ‘there is no preference for jury trial’, the judge expressed the view that there had to be ‘unique factors’ persuading the court that it is in the interests of justice that the matters be determined by judge alone.
That last observation was apparently influenced by what Elkaim J said in UD. In our view, however, the judge’s reliance on the cited passage was misplaced.
First, as counsel for the appellant correctly submitted, the judge ‘reversed the polarity’ of the statement. Elkaim J had suggested that, if it is in ‘the interests of justice’ that criminal trials should continue during the pandemic – and the only means of achieving this end within the constraints of the public health emergency imposed by the pandemic – then judge alone trials should be ordered, ‘subject to unique factors in individual cases’. Thus, Elkaim J stated in effect that, in the conditions that then prevailed in the ACT, the default position should be that judge alone trials ought to be ordered unless ‘unique factors in individual cases’ dictated trial by jury.
The trial judge appears to have understood the statement by Elkaim J, however, as a mandate to take the opposite position. Hence, the judge evidently considered that UD justified the adoption of a stance whereby jury trials should be ordered unless there are ‘unique factors in a given case which persuade the court that it is in the interests of justice that the matters be determined by judge alone’.
Secondly, Elkaim J was concerned to apply legislation which differed from the relevant CPA provisions in important ways. UD was concerned with ss 68B and 68BA of the Supreme Court Act 1933 (ACT). Of some importance, prior to the enactment of s 68BA by the COVID-19 Emergency Response Act 2020 (ACT), s 68B allowed a person facing criminal proceedings in the Supreme Court to elect to be tried by a judge alone rather than by a judge and jury. Section 68BA, however, provided that, ‘during the COVID-19 emergency period’, the court could give notice to the parties that it intended to make an order for trial by judge alone under s 68BA(3) – that is, effectively of the court’s own motion and irrespective of the accused person’s election – and invite the parties ‘to make submissions about the proposed order’. Sub-section (3) provided:
(3) The court may order that the proceeding will be tried by judge alone if satisfied the order—
(a) will ensure the orderly and expeditious discharge of the business of the court; and
(b) is otherwise in the interests of justice.

Therefore, before a court could make an order under s 68BA of the ACT legislation, it had to be satisfied of two things: first, the order would ‘ensure the orderly and expeditious discharge of the business of the court’; and, secondly, it was ‘otherwise in the interests of justice’ to make the order. In other words, the court had a discretion to make an order for trial by judge alone if it would ensure the efficient and prompt performance of the court’s business, and if, in other respects, it was in the interests of justice to do so.
It will thus be appreciated that the requirements of s 68BA of the ACT legislation differed from those in s 420E(1) of the CPA in, at the least, two significant respects. First, unlike s 420E(1) of the CPA, s 68BA did not require the accused’s consent (after having received legal advice) before the court was empowered to make an order for trial by judge alone. Secondly, s 420E(1) contains no requirement that the court be satisfied that an order for trial by judge alone will ensure the orderly and expeditious discharge of the business of the court. Quite clearly, the ‘interests of justice’ criterion in s 420(1)(d) is the principal – rather than any secondary or subsidiary – consideration animating the exercise of the discretion to order trial by judge alone. UD must be viewed in that light.
Although not important to the resolution of the present application, we pause to note that, in the passage from UD upon which the judge relied, Elkaim J made clear that if the ‘only means’ of continuing criminal trials in the prevailing conditions was through judge alone trials, then judge alone trial should be ordered (‘subject to unique features in individual cases’). Given the current state of the pandemic in this State, however, it could not realistically be said that judge alone trials are the ‘only means’ by which criminal trials presently may be conducted. Several jury trials are now on foot in both the County Court and Supreme Court. Recent experience shows that jury trials can in present times be managed, albeit that flexibility is required and precautions need to be taken.
Significantly, we consider that there is force in the contention that the trial judge fettered the exercise of discretion under s 420E(1)(d) by starting from the position that trial by jury should be ordered unless the court is persuaded that ‘unique factors’ exist. Nothing in s 420E(1) suggests that unique factors – that is, factors that are special, rare, uncommon or novel – must be present before a court may order a judge alone trial in preference to a trial by jury. Clearly, once the first three criteria are satisfied, s 420E(1) of the CPA focuses attention solely on ‘the interests of justice’, without attempting further elaboration. And as was said in Oxymed,[49] the expression
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.
[49]Oxymed, 222 [41].
As was also made clear in Oxymed, s 420E does not provide for a presumption in favour of trial by jury or in favour of trial by judge alone, the default position being – in the absence of an application by a party or the court’s own motion – that a trial proceed by jury.[50] But as was also made clear, the right to trial by jury is[51]
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.
[50]Ibid 222 [39].
[51]Ibid 223 [44].
Given the foregoing, we considered that the appellant had established the gravamen of the complaints made under cover of at least parts of grounds 1, 2, 3(a) and 5, and that the judge’s decision was vitiated by error. We therefore set aside the decision and exercised the discretion under s 420E(1)(d) afresh.
In so doing, we gave substantial weight to the appellant’s subjective wish to be tried by judge alone, particularly in circumstances where his application for trial by judge alone was not opposed by the other party enjoying the fundamental right to trial by jury. Indeed, all other things being equal, we consider that it would be an unusual case in the current climate in which an application by an accused person for a judge alone trial would be refused in the face of an absence of opposition by the prosecution.
Furthermore, although jury trials are taking place, the Court cannot ignore the very large backlog of cases caused by the pandemic, which, on current predictions, will take years to clear. That is a factor that, generally speaking, will favour an order for trial by judge alone when sought by an accused person. It is a notorious fact that jury trials presently require a deal more management than in non-pandemic times, and cannot be conducted with the same flexibility as judge alone trials. And it is the Court’s – and common – experience that, in general, judge alone trials are capable of proceeding more efficiently, and of taking up less time, than trials conducted with juries. The community’s ‘legitimate interest in the efficient and just resolution of criminal trials’ is thus another important factor that informs ‘the interests of justice’ criterion.
Finally, we should say that we did not find persuasive the judge’s observation that, given the necessity for a judge to provide a written decision in a judge alone trial ‘any time saved may be artificial’. Of necessity, a judge must always prepare, and deliver, a charge in a jury trial. Depending on the nature of the trial, and the issues to be tried, that exercise might occupy as much (or greater) time as the preparation of reasons. In any event, the length of time required for the preparation of reasons will also depend on the nature of the trial, and the issues to be tried, coupled with the innate efficiency of the particular trial judge.
For the sake of completeness, we indicate that we considered that the part of ground 1 that asserted that it was in the interests of justice that trial by judge alone should have been ordered because of ‘the nature of the evidence and the prosecution case, and the danger of the jury becoming aware of inadmissible prejudicial material’, was wholly without substance. Juries are capable of dealing with the kind of subject-matter in the appellant’s trial; and trial judges (and the parties) are capable of managing jury trials in a manner that ameliorates the risk that inadmissible prejudicial material might be introduced. For similar reasons we would not uphold ground 3(b) as formulated.
As to ground 4, we need only observe that delay in the ability to conduct a jury trial in an individual case might, depending on all the circumstances, inform ‘the interests of justice’ test. Further, we consider that the universal delay that will be encountered in clearing the formidable backlog of criminal trials will be another factor that may generally inform the exercise of discretion under s 420E(1).

Conclusion

For these reason we set aside the judge’s decision and ordered that the charges on the indictment be tried by judge alone.

---

[2022] VSCA 188

30 August 2022