District Court New South Wales Medium Neutral Citation: R v MPW [2020] NSWDC 170 Hearing dates: 4 May 2020 Date of orders: 04 May 2020 Decision date: 04 May 2020 Jurisdiction: Criminal Before: Priestley SC, DCJ Decision: See [21] Catchwords: Trial by Judge Alone – Crown Opposes Application – COVID 19 Pandemic – Business of the court to continue Legislation Cited: COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: R v BD [2020] NSWDC 150 R v Johnson [2020] NSWDC 153 Redman v R [2015] NSWCCA 110 Category: Procedural and other rulings Parties: Regina: Crown Accused: MPW Representation: Counsel: Crown: Oliver Counsel: Cochrane Solicitors: DPP Solicitor: Endacott Defence Solicitor: Ritchie File Number(s): 2018/00234957 Judgment 1. By an application by the accused dated 25 March 2020, an order is sought under s 365 of the Criminal Procedure Act for his trial on five charges to be tried by a judge alone. By that section, such an order may be made only if the accused consents to be tried by judge alone and the Court is satisfied the accused has sought and received advice from an Australian legal practitioner in relation to the effect of an order that be tried by a judge alone. This requirement is satisfied by the terms of the application signed by the accused and which formed part of exhibit 1. 2. Section 365 also provides that, where the prosecutor does not agree, then the order may only be made if the Court considers it is in the interests of justice for the accused to be tried by judge alone. In this case, the prosecution does not agree, so that it is necessary for me to consider whether it is in the interests of justice for the accused to be tried by judge alone. THE ALLEGATIONS 1. The accused is charged with five offences. Four of them relate to events occurring on a specified date, namely, 24 June 2018. It is alleged that the accused had sexual intercourse without the consent of the complainant on two occasions that night, once digitally and once by having penile-vaginal intercourse with her. In respect of both of those charges, there is a back‑up charge of indecent assault. The fifth charge is a charge of intending to pervert the course of justice by seeking to obtain an item of evidence. This is said to have occurred on 11 July 2018. THE LEGISLATIVE PROVISIONS 1. Prior to 24 March 2020, an application of this type would have been brought necessarily pursuant to s 132 of the Criminal Procedure Act ("the Act") That this application is being brought under s 365 is because of amendments made to the Act pursuant to the passing of the "COVID-19 Legislation Amendment (Emergency Measures) Bill 2020". In the submissions made before me, the point was made by the Crown that the "test" for determining whether the order sought should be made remains the same. That test is whether the Court "considers it is in the interests of justice for the accused person to be tried by a judge alone". That is undoubtedly true. 2. In applying that test, the current legislation needs to be borne in mind, in particular, s 353 states that the purpose of the Part in which s 365 is found is "to enable criminal trials in the state to be conducted in a way that is appropriate given the public health emergency caused by the COVID-19 pandemic". Presently, due to the pandemic, jury trials are suspended. There presently is no other way to conduct a criminal trial in this state other than by way of a judge alone trial. A second notable feature of the new Part 5 is that, in s 365, it provides that the Court may of its own motion order that an accused person be tried by a judge alone. This was not before the amendments and is not now a provision found in s 132. In my view, the purpose of this provision is to make clear that the Court has such a power, which it may arguably have had in the first place, so as to ensure there is a means of oversight in the administration of justice to ensure that justice is continued to be administered. 3. Thus if neither the accused nor the Crown seek a judge alone trial, the legislation makes it plain that the Court should make the application should it consider it appropriate whereupon the same considerations as previously applied would apply. 4. The Crown's submissions opposing the application essentially resolve down to three matters. The first is to say that this is a matter ordinarily dealt with by a jury, and that there is nothing complex about it. Secondly, and consistent with the first point, the Crown relies on the well recognised importance of retaining the involvement of the community in the administration of justice. Thirdly, the Crown argues there is not likely to be any significant delay in the hearing of the matter if the order is not made. 5. The defendant argues that the matter has already been delayed and that there is a risk of further significant delay if the application fails. The chronology is the offences founding charges 1 to 4 inclusive are alleged to have occurred on 24 June 2018 and count 5 on 11 July 2018. The accused was arrested on 31 July 2018 and he has been on bail ever since. Trial dates of 12 August 2019 and 30 September 2019 were vacated. The first date was vacated on the Crown's application due to the unavailability of a Crown witness, and the second occasion on the accused's application due to the late service of Crown material. The trial of the accused will be further delayed through no fault of anybody should this application fail. DELIBERATION 1. In applying the test of whether it is in the interests of justice to order a judge alone trial, it is relevant to take into account the fact of the pandemic. Whilst the test is the same, the factors needing to be considered in applying that test are enlarged. What needs to be considered on this application, which would not needed to have been considered before the pandemic are at least the following factors: 1. that as at the date this trial is listed for hearing, jury trials cannot occur; 2. that there is additional legislative provisions to consider, in particular the two matters referred to above of s 353 and s 365. 1. That is not to say the importance of the community involvement is to be disregarded. The question is whether that factor and any others relied on by the Crown on the facts of this case are such that it is in the interests of justice to deny the application so as to permit the later hearing before a jury. This requires some consideration of what the delay will be. The Crown at para 25 of its submissions set out a number of dates in which it was asserted there were no trials currently listed at Coffs Harbour. 2. Without any criticism being made of the Crown, those dates are not as available as the Crown may have been led to believe. In submissions, the difficulties with those dates were canvassed and it is not necessary to set out in these reasons the particulars as to why the dates asserted that the trial could occur before a jury may not be available. Suffice to say that the only clear week in which a jury trial might occur, free of any other work of the Court, was 14 December 2020. That is the last week of the Court term. 3. This matter has an estimate of ten days, although that was met with some scepticism by counsel this morning, albeit that it was in fact previous counsel who gave the estimate. Be that as it may, even if this was a five day estimated hearing, one would be slow to embark upon it on the last week of term. The short point is that the extent of the delay is a matter of speculation and in short there is no certainty as to when this trial would be heard. 4. The Crown's submission was based on an assumption that jury trials would commence earlier than the previously anticipated in the September / beginning of October period. Whilst that may well be correct, the fact is that no date is yet set for the recommencement of jury trials. Furthermore, there will be a backlog of work to be dealt with when matters can be again heard by juries. There is also in this regard a principled difficulty with that submission of the Crown. Before submissions, I referred the parties to two decisions. One was R v BD, a decision of his Honour Judge Lerve of this Court given on 29 April 2020 and the second was a matter of R v Johnson [2020] NSWDC 153, a decision of his Honour Judge Grant. I am indebted to their Honours for the assistance of these judgments. In the matter of BD at para 31, reference is made to a decision of Elkaim J of the ACT Supreme Court where his Honour made reference to an earlier decision of his and stated: 5. "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'". 6. That reasoning, albeit in respect of legislation which has some differences to the New South Wales legislation, was adopted by Lerve DCJ in dealing with the legislation I am presently considering. That view, on my assessment, is consistent with the comments of the Attorney-General made in introducing this legislation to parliament on 24 March where it was said: 7. "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". 8. So the purpose of the legislation was to facilitate more judge alone trials. My interpretation of that is that the legislators in introducing this legislation anticipated that trials that prior to the legislation may not have been ordered to proceed by way of judge alone may well now proceed as judge alone trials. 9. The other aspect relied upon by the Crown is in terms of the authority of Redman v R per Adams J, although this tends against the Crown's position, but it was referred to in submissions, and where his Honour said on appeal: 10. In that case 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 supposition about the relative abilities of judge or jury to determine facts. Though in some cases, such as those enumerated in s 132(5), a jury may be the more appropriate tribunal, other things being equal. 11. The amended legislation specifically provides that s 132 is to continue to have effect. The reference by Adams J of subs (5) was a reference to the discretion of a Court to refuse a judge alone application, if it considers that the trial would involve a factual issue that requires the application of objective community standards, including but not limited to an issue of reasonableness, negligence, indecency, obscenity or dangerousness. The application of community standards is a matter which would tend in favour of a jury trial of a matter such as this one, dealing with sexual intercourse without consent or indecent assault. 12. I have had the Crown case statement provided to me and this forms part of exhibit A. The issues in this case, which have not been specifically outlined by the parties before me, but based on the Crown case statement, whilst the involve issues of community standards, it is hardly likely to be hotly in dispute that if, as alleged, the accused had sexual intercourse with an intoxicated and asleep female, there could be any suggestion that a judge may have some view of the community different from the 12 good members of the community forming the jury in that regard. That issue, on my view of it does not weigh heavily in this case. 13. In my view, this is a case of a type in line with what the Attorney-General said in the speech introducing the legislation, where it was anticipated there would be more judge alone trials. That is, this is a case where there will be a judge alone trial in my view, albeit that absent the pandemic it would be likely not to have occurred. I consider it is in the interests of justice to accede to the application because: 1. there has already been significant delay; 2. the extent of a further delay cannot be stated with any certainty; 3. the legislation is designed to keep the Courts operating presently; 4. a judge alone is not to be supposed to not be as able a fact finder, all other things being equal, than a jury; and 5. to reject the application would mean no trial to proceed and the administration of justice would be slowed. 1. I acknowledge that other matters could be attended to, such as the taking of evidence, but that will then need to be replayed at a time when some other trial could be occurring. The legislation specifically allows for this and I have taken it into consideration in my determinations and take the view that for the reasons set out above, other matters outweigh taking the route of taking evidence and then dealing with the matter before a jury later on. The aftermath, once social distancing restrictions are lessened will be significant, in terms of the Court's work and it is in the interests of justice to minimise the difficulties that will be faced, provided for, on balance, it is in the interests of justice to do so. 2. Here, the thrust of the Crown argument is the desirability of the jury to be the fact finder and the assertion of minimal delay. The first factor is a given. That is the very matter impacted by the amendments and the Crown has not taken me to any other aspect of this in particular that persuades me it is not, in all the circumstances, in the interests of justice to proceed by way of a judge alone trial. The second factor is speculative, if not demonstrably wrong. In light of the foregoing reasons and discussions, I conclude that it is in the interests of justice to proceed by way of a judge alone trial and I so order. ********** Amendments 07 July 2020 - 07/07/2020 - Changed appearance names DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2020