R v BD

[2020] NSWDC 150

District Court

New South Wales

Medium Neutral Citation:	Regina v BD (No. 1) (Judge alone application) [2020] NSWDC 150
Hearing dates:	24 April 2020; written submissions by the Crown
Date of orders:	29 April 2020
Decision date:	29 April 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Direct trial be by Judge alone
Catchwords:	Trial by judge alone – Crown opposes application – COVID 19 pandemic – business of the court to continue
Legislation Cited:	Covid-19 Legislation (Emergency Measures) Act, 2020 Criminal Procedure Act, 1986 Crimes Act, 1900 Supreme Court Act, 1933 (ACT)
Cases Cited:	R v Belghar [2012] NSWCCA 86 R v Coleman [2020] ACTSC 97 DPP v Farrugia [2017] NSWCCA 197 Mickelberg v The Queen (No 3) (1992) 8 WAR 236 Mulquiney v Reynolds and Anor (Ruling No. 1) [2020] VSC 119 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 R v Qaumi & Ors (No. 14) (Judge alone application) [2016] NSWSC 274 Rakielbakhour v DPP [2020] NSWSC 323 Redman v R [2015] NSWCCA 110 R v Spiteri-Ahern; Barber; Zraika [2017] NSWSC 1275 R v UD (No. 2) [2020] ACTSC 90
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (for the Crown) BD
Representation:	Counsel: Dr R Webb for the accused   Solicitors: Ms V Morgan, Trial Advocate for the Crown Mr R Boulos of Belgrave Lawyers for accused
File Number(s):	2019/181172
Publication restriction:	THE COURT REMINDS ALL CONCERNED THAT THE RELEVANT LEGISLATION PROVIDES THAT THERE MUST BE NO PUBLICATION OF THE NAMES OF THE COMPLAINANTS OR ANYTHING THAT MIGHT IDENTIFY THEM. THAT PUBLICATION RESTRICTION EXTENDS TO THE ACCUSED.

Judgment

Reasons for decision on application by the accused that the accused be tried by Judge alone.

1. These are extraordinary times in which we are currently living and working because of the Covid-19 pandemic.  The Government has acted swiftly to enact legislation to ensure as much as possible the courts can still function and hear and determine at least some cases.  The respective Heads of Jurisdiction have likewise acted swiftly to ensure that the courts can still function as efficiently and as safely as they can in the circumstances. The profession in general and the bar in particular have embraced the virtual court room and are co-operating to help the system of the administration of justice continue to function again, as best it can in the circumstances.  However, despite these extraordinary and unprecedented times the Crown maintain what has become an expected and almost routine opposition to trials being determined by judge alone, particularly in matters involving allegations of sexual assault.  Be that as it may, this application must be determined in accordance with principle including the applicable and recently enacted Emergency Measures legislation.

2. Despite the amendments to the Criminal Procedure Act, 1986 by virtue of the provisions of Schedule 1 of the Covid-19 Legislation (Emergency Measures) Act, 2020, in this matter the Crown objects to an application by the accused for trial by judge alone. Because of s 365(2) of the Criminal Procedure Act, which is part of the Emergency Measures legislation a determination will need to be made whether an order for a judge alone trial is in the interests of justice.

3. It occurs to me that the interests of justice will need to include a consideration of the Covid-19 pandemic and prevailing situation within the community. Authorities such as Pambula District Hospital v Herriman (1988) 14 NSWLR 387 on the issue of efficiency and pragmatism do not have the force they once did in at least in the present circumstances. A fair reading of the Emergency Measures legislations includes that the evidentiary onus on the accused in an application for a judge alone trial has been dispensed with at least while the Emergency Measures are in place.

4. The accused (D.O.B 4 February 1982) was committed from the Wagga Wagga Local Court on 18 March 2020 in respect of a total of 16 counts of child sex offences and assaults. The file indicates that the accused has been in custody since his arrest on 11 June 2019. This was confirmed by the legal representatives of the accused. It is almost certain that the accused will remain in custody until the trial.

5. An indictment was presented at the arraignment hearing at the Wagga Wagga District Court on 24 April 2020, conducted by audio visual link (virtual court room). The accused pleaded not guilty to a total of 16 counts namely:

• One count of Expose a Child of Under 16 years to Indecent Material, contrary to section 66EB(3) of the Crimes Act, 1900;

• Three counts of Sexual Intercourse with a Child Under 10 years of age, contrary to s 66A(1) of the Crimes Act;

• Two counts of Aggravated Indecent Assault contrary to s 61M(2) of the Crimes Act, one of which is pleaded as an alternative to one of the counts of Sexual Intercourse with a Child Under 10;

• Six counts of Common Assault contrary to s 61 of the Crimes Act;

• Three counts of Commit Act of Indecency towards a Child Under 10, contrary to s 61O(2) of the Crimes Act;

• One count of Use Child Under 14 years for the Production of Child Abuse Material, contrary to s 91G(1)(a) of the Crimes Act.

6. The offending conduct is alleged to have occurred between October 2015 and February 2018 and involves 3 separate complainants. Ten counts relate to the complainant ShOC. Four counts of common assault relate to the complainant HD (a male child) and one count of Act of Indecency Towards a Child Under 10 and one count of Common Assault relate to the (female) complainant SoOC. The accused was at all relevant times in a domestic relationship with the children’s mother.

7. I will briefly outline or summarise the allegations as contained in the Crown Case Statement. The following does not constitute any finding of fact; rather it is merely a brief outline of what is alleged against the accused. Counts 1 to 4 inclusive appear to arise out of the one ongoing incident. It is alleged that the accused showed the complainant who was in Year 2 or Year 3 a pornographic movie. The accused pulled down the pants of the complainant and inserted his penis into her vagina. The complainant did not give an account of the penetration on the first occasion she was interviewed. In a second interview she gave an account of penetration occurring three times. It is not clear to what act count 4, i.e. the second count of Aggravated Indecent Assault, relates.

8. Count 5 is a charge of Common Assault and relates to a slap across the face. Count 6 (Act of Indecency) relates to an allegation that the accused gave the complainant a sex toy that “looked like a boy’s penis” and told her to put it in her vagina. He later asked her whether she had used the object.

9. Count 7 is an allegation of Sexual Intercourse with a child under 10 and relates to an occasion when the complainant was staying home from school. It is alleged the accused engaged in an act of penile/vaginal intercourse in a vehicle in a shed in the yard. Count 8 is also an allegation of sexual intercourse with a child under 10. It is alleged the accused took the complainant into his bedroom where the child’s mother also was and engaged in an act of penile/vaginal intercourse with the complainant while the child’s mother was asleep. According to the Crown case statement the complainant told police that her mother saw this but her mother “was not really awake”.

10. Count 9 relates to an allegation that the complainant was obliged to remove her clothing and vacuum the accused’s room naked while the accused watched pornographic movies.

11. Count 10, i.e. Use Child Under 14 to Make Child Abuse Material, relates to an allegation that the accused recorded on his mobile phone or iPad himself having sexual intercourse with the complainant. The complainant can recall seeing the images.

12. The counts of Common Assault relating to HD relate to allegations of physical abuse towards the complainant by the accused including being “ziptied” to a pole, being duct-taped to a toilet, rubbing his face in urine on the floor and being hit over the head with a shovel.

13. The second female complainant to whom counts 15 and 16 relate is the younger sister of the complainants in counts 1 to 10 inclusive. The Act of Indecency relates to an allegation that the accused held a tube at his groin and said, “this is how big it is”. The child believed this was a reference to the accused’s penis. The Common Assault is an allegation that the accused banged the child’s head to the ground causing her to become dizzy.

14. The court is not informed whether there has been a Tendency Notice filed.

15. Dr R Webb of counsel who appears for the accused instructed by Mr Boulos of Belgrave Lawyers of Parramatta had communicated with the court via my Associate earlier in the week of the arraignment hearing and indicated that the accused would be seeking trial by judge alone. Immediately following the arraignment on 24 April 2020 the representative of the Crown indicated that the Solicitor Advocate who had carriage of the matter for the Crown opposed any application for a trial by judge alone and sought to make written submissions. The Crown was aware prior to the date of the arraignment that the accused would be seeking a trial by judge alone. It would have been helpful had those submissions been available at the arraignment hearing in order that the matter could be determined then rather than having to be adjourned with the requirement for a reserve judgment.

16. Schedule 1 to the Covid-19 Legislation (Emergency Measures) Act, 2020 amends the Criminal Procedure Act, 1986 by inserting a number of additional sections to that Act, one of which is section 365 which relevantly provides:

365   Judge alone trials

(1)    A court may, on its own motion, order that an accused person be tried by a Judge alone.

(2)    A court may make an order under subsection (1) only if—

(a)  the accused person consents to be tried by a Judge alone or, for a joint trial, all the accused persons consent to be tried by a Judge alone, and

(b)  if the prosecutor does not agree to the accused person being tried by a Judge alone, the court considers it is in the interests of justice for the accused person to be tried by a Judge alone, and

(c)  the court is satisfied the accused person has sought and received advice from an Australian legal practitioner in relation to the effect of an order that the person be tried by a Judge alone.

(3) This section applies despite any other provision of this Act, including sections 132 and 132A.

17. It is tolerably plain from subsection (3) that the intent of Parliament was that at least while the emergency measures provided for within the legislation are in force sections 132 and 132A of the Criminal Procedure Act are subordinate to section 365 in the amended Act. Further, it is also tolerably plain that the amendments passed by the Emergency Measures legislation enables the court to more easily make an order for a trial to be conducted by judge alone.

18. I am fortified in this given what was said by the Honourable Mark Speakman SC, the Honourable the Attorney General in the second reading speech to the emergency measures legislation, namely:

“…Some of the amendments in the bill are extraordinary, which is why they generally have sunset clauses of between six months to 12 months. The Leader of the House has asked me to be brief, so I will not go into detail with many of the substantive amendments in the bill.

The bill amends the Criminal Procedure Act 1986 to enable a judge to order that a relevant witness can give evidence by having their evidence recorded in advance of the trial, to enable a record of evidence given in the trial proceedings to be admissible in a subsequent trial, to facilitate more judge only trials, and to introduce a general regulation-making power for exceptional circumstances. This empowers regulations that will provide for altered arrangements for criminal proceedings, apprehended violence order proceedings, bail sentencing and the administration of sentences. The regulations made under this provision can override the provisions of any Act or other law and are not limited by regulation-making power in a relevant Act…”

19. The emphasis on the words “to facilitate more judge alone trials” is mine. In the matter presently under consideration I am satisfied that the accused not only consents to trial by judge alone and actively seeks that his trial be by judge alone. Further I am satisfied that the accused has sought and received advice from an Australian lawyer about the trial being by judge alone. It was plain enough from a brief exchange between the bench and the solicitor appearing for the accused at the arraignment hearing that such advice had been sought and had been received by the accused. It appears, at least to me that the clear intent of the Parliament was that there be more judge alone trials during the period of time that the Emergency Measures remain in place.

20. The Crown opposes the application for trial by judge alone noting that s 365 preserves the right of the Crown to object. The Crown repeats the point at p 2 of the submissions that the emergency legislation did not abrogate the Crown’s right to oppose the making of a judge alone order. The Crown relies on the authorities of DPP v Farrugia [2017] NSWCCA 197 and Brown v DPP [2018] NSWCCA 94.

21. Those authorities deal with considerations when dealing with an application pursuant to s 132 of the Criminal Procedure Act. The Crown submits that the “interests of justice” were set out succinctly by Basten JA in DPP v Farrugia at [11]. His Honour said (at [11]):

“Without seeking to be restrictive of the circumstances in which such orders are appropriate, it is helpful to note that the decided cases reveal judge alone trials may be preferable in relation to lengthy complex trials involving significant disputes between experts and in cases where the judge is not satisfied that a fair trial can be achieved with a jury, perhaps because a particularly horrendous crime has inflamed public sentiment in a small community. On the other hand, it is clear that an order is not to be made because the judge has a preference for trials without a jury because, for example, a reasoned judgment is more transparent than a jury verdict, the trial is likely to be shorter and less expensive to run, or a “correct” result is more likely.”

22. The Crown submits that in the ordinary course of events this is a trial that would ordinarily proceed before a jury. The Crown indicates that there are no complex factual or legal issues. I presume from that statement that there is no Tendency Notice. The Crown accepts that if the matter is to be a jury trial it would not take place until later in 2020. Given the backlog of trials that is likely after the pandemic there is no certainty that the matter would be reached in 2020.

23. Further, the Crown submits that the matter has only recently been committed for trial and that the trial date tentatively set, i.e. 9 June 2020 is the first trial date the matter has received. The Crown also submits that there are underlying principles in relation to the benefits of community involvement in the criminal justice system.

24. In response, Dr Webb for the accused submits the present circumstances of the pandemic are sufficiently unusual for Parliament to pass the Emergency Legislation. I agree with that submission. He also submits that the Emergency legislation specifically provides for a court to order of its own motion a trial by judge alone.

25. The question of the pandemic affecting orders for judge alone trial was considered by Macauley J of the Victorian Supreme Court in Mulquiney v Reynolds and Anor (Ruling No. 1) [2020] VSC 119. A civil trial had earlier been ordered to be conducted before a Judge and jury. His Honour said at [3]:

“Over the weekend just passed it was reported in the media, accurately, that as of today no new jury trials will be commenced in Victoria until further notice in response to a worldwide pandemic known as COVID – 19 (coronavirus). Time does not permit me to explain in detail the nature of this emergency, but it is well known to all. Jury trials have been suspended due to the risk to jurors and others of the spread of the coronavirus through the close contact which jurors must have to one another throughout a trial. The purpose of containing the spread is to slow the rate of infection and thereby defer the time of peak infection to allow State medical resources to cope with those who need treatment. It is not currently known how long the suspension of jury trials will last. Doing the best I can, I think the projection is likely to be of the order of many weeks not just days. It could be a number of months.”

26. Those observations of his Honour are equally applicable to the matter presently under consideration. Jury trials have been suspended and it is uncertain as to when they will resume. If the accused in the matter presently under consideration were to be tried by a jury it is uncertain when that would occur. At Wagga Wagga it is likely but not certain given the anticipated length of the trial if conducted before a jury (10 days plus) that the trial would proceed during the 2020 calendar year.

27. On the issue of the interests of justice, Elkaim J in R v UD (No. 2) [2020] ACTSC 90 at [12] observed:

“[12] I think the starting point, in respect of subsection (b), is the following concise definition of the interests of justice by Malcolm CJ in Mickelberg v The Queen (No 3) (1992) 8 WAR 236, at 251:

‘The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest in the due administration of justice.’”

28. I note that the relevant legislation in the ACT (s 68BA Supreme Court Act, 1933 (ACT)) providing for judge alone trials during the Covid-19 pandemic period provides that a judge alone trial may be ordered without the consent of the accused. It does however provide that an accused may make submissions.

29. Elkaim J went on to say at [16-[17] in R v UD (No. 2):

“[16] I think it can be said with almost certainty that, in ‘normal times’ a judge, if legislation otherwise permitted, would rarely find that it was in the interests of justice for there to be a judge alone trial against the wishes of an accused person.

[17] These are not normal times. The new legislation is a reaction to the COVID-19 emergency. The new provisions are limited to the “emergency period” which stretches from 16 March 2020 to 31 December 2020, or such other end date as is prescribed by regulation.”

30. Since his decision in R v UD (No. 2) his Honour has given the decision in R v Coleman [2020] ACTSC 97. At [8]-[9] his Honour said in Coleman:

“In UD I discussed what I thought were the relevant matters that should form the basis of a decision about whether or not to make a proposed order. UD should be read in conjunction with these reasons in order to avoid unnecessary repetition.

At [74] and [75] of UD I said this:

‘There will be cases where an accused will establish that his or her trial is only suited to a determination by a jury. I do not think this is such a case. As has been discussed above, it cannot be said, without more, that a person subjected to a judge alone trial will not receive a fair trial. There is not more in this case. That being the position  s 68BA(3)(a) requires the proposed order to be made.

It also follows that, if my reasoning is correct, future submissions to halt the making of a proposed order should concentrate on features relevant to the facts of the trial, perhaps including subjective traits of the accused, to establish that in the particular case a judge alone trial will be against the interests of justice.’”

31. Particularly apposite to the issue that I am determining, in R v Coleman his Honour went on to say at [41]:

“As I tried to convey in UD the fact that a trial can be conducted sometime in the future is not necessarily the point. The legislation intends the business of the court to continue. If that involves a judge alone trial then the proposed order should be made unless it is not “otherwise in the interests of justice” (s 68BA(3)(b)).”

32. With unfeigned respect to Elkaim J, I echo his Honour by saying it is the clear intention of the New South Wales Parliament by the Emergency Measures legislation that “the business of the court is to continue”.

33. In normal times where the Crown opposes an application for trial by judge alone there is an evidentiary onus on the accused. Decisions such as R v Belghar [2012] NSWCCA 86; Redman v R [2015] NSWCCA 110; R v Qaumi & Ors (No. 14) (Judge alone application) [2016] NSWSC 274; DPP v Farrugia [2017] NSWCCA 197 and R v Spiteri-Ahern; Barber; Zraika [2017] NSWSC 1275 would need to be considered.

34. One matter arising out of Redman v R that is at least relevant if not significant in the matter presently under consideration was what Adams J said at [17]:

“On a fair reading of the trial judge’s reasons, it seems to me (with respect) that, as distinct from merely emphasising the jury’s suitability for judging credibility in a word against word case, his Honour acted on the basis that a jury is a superior tribunal of fact for this purpose. This was a significant error: the interests of justice are not determined by suppositions about the relative abilities of judge or jury to determine facts, though in some cases – such as those enumerated in s132(5) – a jury may be the more appropriate tribunal, other things being equal.”

35. But these are not normal or ordinary times. As Hamill J observed in Rakielbakhour v DPP [2020] NSWSC 323 at [13]:

“The existence of the COVID-19 pandemic creates a challenge for the criminal justice and penal systems of a kind not experienced in recent decades, if ever, in Australian law. While New South Wales moves steadily toward a complete “lock-down” the rule of law, and the courts and lawyers who administer it, are considered to be an essential service. Mr Rakielbakhour’s release application was conducted with neither the lawyers, nor the applicant or his supporters, present in court. All participants were engaged in a “virtual court room” by means of video link.”

36. At [16]-[17] his Honour went on to say:

“The situation is not unique to New South Wales. Ms Ghabrial referred me to the bail application of Re Broes [2020] VSC 128 in which Lasry J made the following observations:

‘35   Turning to the matter of delay and the more unusual circumstances of this application. Since the filing of this application and the affidavit material, the entire community has been overtaken by the eventuality of COVID-19, which the World Health Organisation has declared a pandemic. At the time of hearing this application there were 150 confirmed cases of people infected with this virus in Victoria and 565 cases Australia-wide. At the time of revising this ruling, the nation-wide number has grown in excess of 1,300, with over 230 confirmed cases in Victoria.

36   Dramatic steps have been taken by both the state and federal governments to endeavour to, as they say, 'flatten the curve' in relation to the spread of this virus. On Sunday, 22 March 2020, federal and state governments announced further measures restricting people’s activities with a promise that additional measures will be introduced in the near future. It seems clear that there will be significant delays occasioned within the courts as a result of this virus, which may result in lengthy periods of remand.

37   In this Court and the County Court, for example, jury trials have been postponed indefinitely; primarily for the reason to avoid the assembly of jury pools, which require large numbers of people, and which, obviously, create a significant risk of the transmission of the virus from person to person.

38   At least in this Court, other measures will be taken in order to slow the spread of COVID-19, including mechanisms that will hopefully truncate hearings — indeed, hearings such as this — so that they can all be dealt with on one day. Many hearings will be conducted, even within the criminal jurisdiction, without the requirement of the personal attendance of either the accused or counsel.

39   Further, it is unknown whether there have been any instances of COVID-19 in the prison population. As I follow it, as at the time of revising this ruling, Victorian prisons do not have any cases of the virus. However, as Mr McGrath submitted, on behalf of the applicant, in addition to issues of delay, there can be no question that once the virus is discovered in any of the Victorian prisons, there will have to be a significant lockdown for a number of reasons. The transmission between prisoners will be significant and likely to occur at a much greater rate than the transmission that is occurring in the community at present. That will result in a large number of prisoners becoming quite seriously ill, depending on their age and underlying conditions. I appreciate these are matters of speculation to a degree, but the situation is sufficiently urgent to required them to be taken into account. Further bearing in mind that the entire situation may have changed again within one or two weeks.

40   Mr McGrath outlined in his submissions the fact that the applicant is relatively young and healthy, and if the applicant were to be infected by COVID-19, she would be likely to make a recovery. However, in addition to the delay of her case, she would suffer the consequences of a significant lockdown in the prison, which would have substantial effects on her and, no doubt, her relationship with her family, which would be a dramatic development for a person who had not previously been in custody.

41   In the particular circumstances that now prevail within the criminal justice system, the likelihood that the applicant will spend more time on remand than the sentence that may be imposed should she be found guilty of the charges is overwhelmingly likely, as counsel for the respondent conceded.

42   Mr Kibel accepted that the present circumstances change the dynamics of an application such as this quite dramatically. It seemed to me that were this in an ordinary application, there was an argument to be put that the applicant did not establish exceptional circumstances. However, this is not an ordinary application in an ordinary time. Mr Kibel conceded that this was so and that exceptional circumstances were established by the applicant.’

[17] See also Re Tong [2020] VSC 141 and, in relation to sentence, Brown v The Queen [2020] VSCA 60 and Sazimanoska v The Queen [2020] VSCA 66.”

37. The Crown’s position seems to be that the legislation still provides that the Crown can object to a trial by judge alone. I understand the Crown’s submission to be that applying what was said by Basten JA in DPP vFarrugia it is not in the interests of justice for the Court to order trial by judge alone. So far as the issue of community involvement, I simply note the extraordinary conditions that presently prevail and note the observations from Adams J in Redman v R extracted above.

38. I note the Crown’s observation that “the court must seemingly make an order based upon the Crown case statement and the history of the proceedings”. It seems to me that that is the clear intention of the Parliament with the Emergency Legislaiton.

39. As Hamill J observed in Rakielbakhour v DPP, “The existence of the COVID-19 pandemic creates a challenge for the criminal justice and penal systems of a kind not experienced in recent decades”. These are not ordinary times.

40. In these extraordinary times it is incumbent that the judges of this court attend to whatever work is able to be done. That includes noting the clear intention of the Parliament as previously expressed at [19] of these reasons ordering more trials be conducted by judge alone.

41. Given the application by the accused, the very considerable delays that would be experienced if the matter were to be delayed until heard by a jury, the fact that the accused has been in custody since his arrest, will very likely remain in custody until the trial, despite the concerns of the Crown I am firmly of the opinion that the matter should proceed by judge alone.

42. I have carefully considered the submissions of the Crown. I am firmly of the opinion that it is in the interests of justice for the trial be by judge alone. As Elkaim J observed in R v Coleman “the business of the court is to continue.”

43. In accordance with s 365 of the Criminal Procedure Act I direct that the trial proceed by judge alone. The trial date is fixed as Tuesday 9 June 2020 – i.e. following the June long week end.

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Decision last updated: 05 May 2020