R v Coleman
[2020] ACTSC 97
•22 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Coleman |
Citation: | [2020] ACTSC 97 |
Hearing Date: | 20 April 2020 |
DecisionDate: | 22 April 2020 |
Before: | Elkaim J |
Decision: | The proceedings are to be tried by judge alone. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury and Judge Alone Trials – Emergency legislation – court ordered judge alone trial – absence of consent by the accused – orderly and expeditious discharge of court business – interests of justice – fair trial – accused on bail |
Legislation Cited: | COVID-19 Emergency Response Act 2020 (ACT) |
Cases Cited: | Mickelberg v The Queen (No 3) (1992) 8 WAR 236 |
Parties: | The Queen (Crown) Mathew Coleman (Accused) |
Representation: | Counsel A Williamson (Crown) J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused) | |
File Numbers: | SCC 226 of 2019 |
ELKAIM J:
On 9 April 2020 the Registrar of the Supreme Court issued the parties with a notice made under s 68BA(4) of the Supreme Court Act 1933 (ACT) informing them that the Court proposed to make an order (the ‘proposed order’) that the accused be tried by judge alone.
The accused does not want to be tried in this way. Accordingly he notified the Court that he would like to make submissions to avert the proposed order. The Crown filed written submissions which helpfully set out a number of considerations that the Court should take into account. The Crown concluded:
The Crown respectfully submits the balance of the above considerations would suggest that, in this particular matter, at this particular time, it is not in the interests of justice to order a judge alone trial against the will of the accused.
The wording of the Crown’s conclusion is appropriately drawn from the terms of the relevant section, namely s 68BA(3), and in particular subsection (b).
Concise written submissions received from the accused adopted the Crown’s written submissions.
The relevant legislation is as follows:
68BTrial by judge alone in certain criminal proceedings
(1)A criminal proceeding against an accused person for an offence other than an excluded offence must be tried by a judge alone if—
(a) the person elects in writing to be tried by a judge alone; and
(b) the person produces a certificate signed by a legal practitioner stating that—
(i)the legal practitioner has advised the person in relation to the election; and
(ii)the person has made the election freely; and
(c) the election and certificate are filed in the court before—
(i)the person, or the person’s legal representative, knows the identity of the judge for the person’s trial; and
(ii)any time limit prescribed under the rules; and
(d) if there is more than 1 accused person in the proceeding—
(i)each other accused person also elects to be tried by a judge alone; and
(ii)each other accused person’s election is made in relation to all offences for which that person is to be tried in the proceeding; and
(iii)none of the offences for which any other accused person is to be tried is an excluded offence.
(2)An accused person who elects to be tried by a judge alone may, at any time before the person is arraigned, elect to be tried by a jury.
(3)If an accused person makes and then withdraws an election, the person may not make another election.
(3A)During the COVID-19 emergency period, this section also applies to a criminal proceeding—
(a) that begins before, on or after the commencement day; and
(b) for an excluded offence.
(4)In this section:
COVID-19 emergency period means the period beginning on 16 March 2020 and ending on—
(a) 31 December 2020; or
(b) if another day is prescribed by regulation—the prescribed day.
excluded offence means an offence against a provision mentioned in an item in schedule 2 (Trial by judge alone—excluded offences), part 2.2, column 3 of an Act mentioned in the item, column 2.
(5)This subsection, subsection (3A) and subsection (4), definition of COVID-19 emergency period expire 12 months after the day this subsection commences.
68BATrial by judge alone in criminal proceedings—COVID-19 emergency period
(1)This section applies to a criminal proceeding against an accused person for an offence against a territory law if the trial is to be conducted, in whole or in part, during the COVID‑19 emergency period.
(2)To remove any doubt, this section applies—
(a) to a criminal proceeding—
(i)that begins before, on or after the commencement day; and
(ii)for an excluded offence within the meaning of section 68B (4); and
(b) whether or not an election has been made by the accused person under section 68B, including before the commencement day.
(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.
(4)Before making an order under subsection (3), the court must—
(a) give the parties to the proceeding written notice of the proposed order; and
(b) in the notice, invite the parties to make submissions about the proposed order within 7 days after receiving the notice.
(5) In this section:
commencement day means the day the COVID-19 Emergency Response Act 2020, section 4 commences.
COVID-19 emergency period means the period beginning on 16 March 2020 and ending on—
(a) 31 December 2020; or
(b) if another day is prescribed by regulation—the prescribed day.
(6)This section expires 12 months after the commencement day.
The new regime commenced on 8 April 2020.
On 20 April 2020 I delivered a decision arising from the same legislation (R v UD(No 2) [2020] ACTSC 90).
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.
The Crown’s submissions, other than to the extent directed at the particular facts surrounding this trial, mirror its submissions made in UD. They were dealt with by me in that decision.
At the oral hearing on 20 April 2020 the Crown made two further submissions following its reading of my decision in UD. The accused adopted the first of the submissions only. The accused also explained his reason for wishing to have a jury trial.
The two further submissions made by the Crown were:
(a)The test I had posed in the last sentence of [71] in UD was incorrect in that it appeared to confine the interests of justice to whether there could be a fair trial for a particular accused. The interests of justice has a much wider scope, also encompassing the confidence of the public in the administration of justice. This submission had a second element arising from the Crown’s limited rights of appeal following an acquittal.
(b)My approach in UD was flawed to the extent that it assumed jury trials could not commence until the completion of the “emergency period”, stated by s 68BA(5) to end, subject to further amendment, on 31 December 2020. The more important period, said the Crown, was the period of emergency declared under the Public Health Act 1997 (ACT). This commenced on 8 April 2020 and will last for 90 days.
I will deal with these two further submissions in turn.
The observations of the Crown, about what I said in [71], are correct to the extent that it is suggested that the interests of justice go further than whether or not there can be a fair trial for the relevant accused person. However, the breadth of the interests of justice, as advanced by the Crown, was specifically adopted by me, in UD, as my “starting point”. At [12], I referred to this definition from 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.
(Emphasis added)
In addition, my comments in the final sentence of [71] must be read in the context of the whole paragraph and my answer to the submission of the Crown being addressed.
I mentioned above that the Crown’s first supplementary submission had a second aspect to it. The Crown said that following an acquittal it was restricted to a ‘reference’ appeal. It could not overturn an acquittal. The Crown continued:
The one comfort the Crown has in the absence of having any appellate rights is that it knows that the decision-making tribunal is representative of the community as a whole and will not be subject to the idiosyncratic views of one person acting alone. That’s one very small [comfort] the Crown can have. (Transcript 3.27)
My difficulty with this submission is that it ignores the fact that judge alone trials have existed since 1993, albeit with some restrictions since 2011. This is not a debate on the introduction of judge alone trials for the first time.
The Crown’s appellate rights since the new legislation, in respect of judge alone trials, are the same as they were before. I cannot see how the Crown’s comfort has been affected. It was the accused’s election before s 68BA came into effect as to whether or not to have a judge alone trial. It was not up to the Crown. The only difference that now exists is that the accused’s consent has been reduced from being determinative to a relevant factor.
Turning now to the second of the supplementary points: The initial emergency period commenced on 16 March 2020 for 5 days. There was then a series of 9 extensions, each of 2 days duration, until the extension referred to by the Crown, which was for 90 days (Public Health (Emergency) Declaration Further Extension 2020 (No 9) (ACT) [NI2020-218]).
The Crown said that Australia, and more particularly the ACT, was doing “well” in confining the spread of COVID-19. It was pointed out, for example, that there were no persons presently in an ACT hospital, suffering from the virus. Therefore, submitted the Crown, the task of deciding whether a proposed order should be made should take account of current circumstances rather than assume that jury trials could not commence before the end of the emergency period on 31 December 2020.
I disagree with this submission, for these reasons:
(a)The Crown conceded its optimistic assessment was made from the bar table and derived from media reports. No expert evidence was tendered.
(b)The fact that the ACT, even the whole of Australia, is doing very well on a particular day is not necessarily indicative of the future. There will no doubt be fluctuations over time. Is a judge to tailor his or her decision according to the latest news report? To do so would truly be outside the interests of justice. Imagine the unfairness in ruling that a proposed order in respect of a particular accused should not be made because ‘things are going well’, but ruling differently for another accused a week later because a spike in cases had occurred.
(c)The legislature has chosen the period up to 31 December 2020 (unless amended) as the applicable period for the application of ss 68B and 68BA. It would be extraordinary for a court, within this period, to vary its decisions according to daily news reports. If, as is hoped, progress in defeating the virus continues, then it will be for the legislature to shorten the emergency period. That is the action that will dictate the application of the new laws.
Returning to the matter generally, in UD an attack was made on the validity of the new legislation suggesting that it was unconstitutional and contrary to the Human Rights Act 2004 (ACT). These validity arguments have not yet been the subject of a hearing. This accused did not attack the validity of the legislation. However, if the legislation is found to be invalid then these reasons, like those already given in UD, will be of no effect.
For the purposes of this accused, on the assumption that I have taken the correct approach in UD, the issues that need to be canvassed arise from matters related to this particular trial.
The Crown’s written submissions refer to the facts of this matter as a “typical kind of armed robbery”. Details are included in the Case Statement.
The accused is now 20 years of age. He has been charged with aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) and dishonestly riding in a motor vehicle belonging to another person contrary to s 318 of the same code.
According to the allegations made in the Case Statement, on 13 October 2018 a Honda motor vehicle was stolen from an address in Yarralumla. In the evening of 19 October 2018 a co-offender drove the Honda to a McDonald’s restaurant in Fyshwick. The accused was a passenger.
After conducting a short inspection of the restaurant the co-offender drove off but returned a short time later, with the accused still as a passenger. The accused entered the restaurant and went behind the service counter. He threatened an employee with a large knife. He demanded money. The employee gave him money from the safe. The accused then required money from the till. The employee obliged. The accused threatened the employee as well as other employees present in the restaurant.
The accused, now in possession of almost $2,000, returned to the Honda which drove off under the control of the co-offender. Again according to the Case Statement, CCTV at the restaurant depicted someone of similar appearance to the accused.
The accused was arrested on 25 October 2018. The co-offender was also arrested. In a recorded interview on 20 November 2018 he told police that he had been the driver of the Honda and the accused was the person who committed the robbery with him. The co-offender pleaded guilty to his part in the offences on 7 May 2019. He was sentenced on 9 August 2019. It is anticipated that he will give evidence at the trial.
The accused has also participated in a record of interview. He accepted that he had been, at a certain other time, a passenger in the Honda but he denied any involvement in the robbery. He said that the co-offender told him that he (the co-offender) and another person had “done the job at the Macca’s in Fyshwick”.
The Crown anticipates that the main issue in the trial will be the identification of the accused.
The accused was granted bail on 26 October 2018.
The accused has always had the option of electing a judge alone trial. His preference to have a jury must be respected, but as I said in UD, the legislation is specifically intended to permit judge alone trials notwithstanding a lack of consent by an accused.
The accused tendered no evidence in support of his resistance to the proposed order, but his counsel did enumerate the reasons the accused wished to have a jury trial. He pointed out that the trial would involve an accomplice giving evidence against the accused, that there was identification evidence and also evidence of an alibi. It was submitted that these three components raised matters of credit which are more suited to a trial by jury. In addition, decisions of credibility, if decided by a jury, would better reflect community standards.
I disagree that credibility issues are necessarily better suited to a jury. Almost every case involves the tribunal of fact making a decision on one or more issues of credit. Judges in civil cases frequently decide questions of credit. As to identification, as I said in UD, it might be thought that the necessary strict application of the law relating to identification, could be better suited to adjudication by a judge alone.
As to community standards, the same might be said about every criminal trial, including all of those that have been heard by judges alone. Sentences imposed by a judge are required to reflect community standards. It cannot be said that judges are capable of reflecting these standards in sentences but not trials.
I note that besides the CCTV footage, which presumably can be preserved, the Crown case relies on the evidence of a number of witnesses, including the co-offender, whose recollections may deteriorate with time. It is not always a ready answer to the passage of time to show a witness a previously made statement in the hope that their memory will be refreshed.
In addition, there are victims (the McDonald’s employees) who are no doubt anxious to see the trial completed and, if appropriate, justice being done. I said in UD that even corporate victims have an interest in speedy justice. I suspect that in the current climate of increasing unemployment, an organisation like McDonald’s would be keen to see courts dealing with cases of this type so as to discourage further robberies.
The two most relevant factors against the making of the proposed order are that the accused does not consent to it and that he is on bail. I have already noted the diminished importance of the former factor in light of the new legislation. As to him being on bail, the argument is that there is no prejudice to him by having to wait a longer period before coming to trial.
I agree that there is no prejudice to the accused, but there is prejudice to the administration of justice which requires accused persons to be brought to trial as soon as is reasonably possible and there is no factor in this matter that indicates that a judge alone trial will not be in the interests of justice.
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)).
I cannot see any distinguishing feature about this trial, or this accused, that would suggest that he cannot receive a fair trial from a judge sitting without a jury. Nor can I see any other consideration falling within the interests of justice, as defined in Mickelberg, that suggests the proposed order should not be made.
In other words, there is no reason why it would not be in the interests of justice for there to be a judge alone trial.
Accordingly I make the proposed order, namely that the proceedings will be tried by judge alone.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 22 April 2020 |
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