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DPP v Lawlor (a pseudonym) (Ruling) [2022] VCC 2381 (27 April 2022)

Last Updated: 5 July 2023

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Revised
Not Restricted
Suitable for Publication


Case No. CR-19-01405

DIRECTOR OF PUBLIC PROSECUTIONS
Plaintiff


v


ANGUS LAWLOR (a pseudonym)
Defendant

---

JUDGE:
HIS HONOUR JUDGE MULLALY
WHERE HELD:
Melbourne
DATE OF HEARING:
By written submissions
DATE OF RULING:
27 April 2022
CASE MAY BE CITED AS:
DPP v Lawlor (a pseudonym) (Ruling)
MEDIUM NEUTRAL CITATION:
[2022] VCC 2381

REASONS FOR RULING
---

Subject: Criminal Law–Application for trial by judge alone.

Catchwords: Application for trial by judge alone while pandemic declaration is in force – Application not consented to by the prosecution – Interests of justice.

Legislation Cited: Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 (Vic); Criminal Procedure Act 2009 (Vic); Crimes Act 1958 (Vic).

Cases Cited: DPP v Combo [2020] VCC 726; Hooper and Oxymed Australia Pty Ltd v DPP 2021 VSCA 68; DPP v Ritchie (a pseudonym) [2020] VCC 1111; DPP (NSW) v Farrugia [2017] NSWCCA 197.
Ruling: Application for trial by judge alone granted.





APPEARANCES:




Counsel




Solicitors

For the Applicant

Ms R. Shann

Galbally & O’Bryan



For the Respondent
Dr J. Harkess
Office of Public Prosecutions

Legislative Provisions governing Applications for Judge Alone Trial

  1. This is an application made on behalf of Angus Lawlor[1] for a judge alone trial. The application together with written submissions in support were filed on 26 April 2022.
  2. The application is opposed by the prosecution. Written submissions were filed on 27 April 2022.
  3. The parties consented to the application being dealt with on the papers.
  4. The application is now able to be made because the recently passed Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 (Vic) (‘the Act’) which inserted the new Chapter 9 into the Criminal Procedure Act 2009 (Vic) (‘CPA’).[2] These provisions set out in Chapter 9 allow for a judge alone trial (‘JAT’) while a ‘pandemic declaration is in force’.[3]
  5. Currently a pandemic declaration is in force.[4]
  6. The new provisions reintroduce judge alone trials which were previously available for a prescribed period of 12 months up to 24 April 2021.[5] The overall purpose of the reinstated capacity to hold a JAT is generally the same, and that is, to enable the Courts to efficiently and fairly deal with the backlog of pending criminal trials that have arisen due to the impact of the pandemic.
  7. The key criteria for determining an application remain the same as they were under the previous legislation. They are now set out in s 420E of the CPA which reads as follows:

(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 application 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.

  1. A number of applications for a judge alone trial were decided in the County Court and in the Supreme Court pursuant to the predecessor to the current legislation. An early decision of Chief Judge Kidd in DPP v Combo (‘Combo’),[6] set out the guiding principles. In Hooper and Oxymed Australia Pty Ltd v DPP (‘Oxymed’),[7] the Court of Appeal endorsed the approach taken by Chief Judge Kidd in Combo.[8]
  2. In those decisions, the Court of Appeal and the Chief Judge thoroughly analysed the legislation and the jurisprudence governing judge alone trials from those states where judge alone trials have been an option for many years.[9]
  3. I have reread those decisions. Those decisions govern applications made under the latest iteration of the judge alone trial provisions in the CPA. No party contended otherwise. Thus, in this application, I respectfully follow what was so comprehensively and helpfully set out in those judgments. It means I am relieved of much background analysis and can confidently decide this application by reference to what I see as the now accepted approach to applications for an order for a JAT.
  4. As with most cases, including Combo[10] and Oxymed,[11] the important consideration in this application made by Mr Lawlor is the ‘interests of justice’ criteria set out in s 420E(1)(d) of the CPA. The other provisions, ss 420E(a)-(c) of the CPA, are not at all controversial and can be dealt with quickly.
  5. Firstly, by indictment K10297971, the Director of Public Prosecutions has charged the accused man, Angus Lawlor, with two offences of rape pursuant to section 38(1) of the Crimes Act 1958 (Vic) as amended. Accordingly, ‘each charge is for an offence under the law of Victoria’ thus satisfying s 420E(1)(a) of the CPA.[12]
  6. Next, notwithstanding the short time frames involved since the issue of a JAT was first raised in this case, it is made clear in the application that the accused consents to the making of the order for a judge alone trial. Thus I am of the view that s 420E(1)(b) of the CPA is satisfied.
  7. Thirdly, and again notwithstanding the short time frames and again by reference to the application, I am well satisfied that the accused has obtained thorough legal advice on whether to give that consent, including advice on the effect of the order, that is, his trial will be decided by a judge alone and not by jury, thus s 420E(1)(c) of the CPA is also satisfied.

‘Interests of Justice’

  1. The real issue is whether the court considers that it is in the ‘interests of justice to make the order’ pursuant to s 420E(1)(d) of the CPA. In that regard, as I have said, I adopt the analysis and reasoning of the Court of Appeal in Hooper and Oxymed Australia Pty Ltd v DPP [2021] VSCA 68 (‘Oxymed’) and of Chief Judge Kidd in DPP v Combo [2020] VCC 726 (‘Combo’). However, while this case gives rise to considerations of past and potential future delay, it is not quite the same as those earlier JAT applications that involved an unknown period of delay until jury trials resumed. Jury trials have resumed state-wide. In that sense, the circumstances are more akin to those states and territories where JATs have been operating parallel to jury trials for some time. That said, it is well appreciated that, for particular reasons that are referred to below, potential future delay remains a significant issue in this matter.
  2. In Oxymed, the Court of Appeal endorsed six relevant principles identified by Chief Judge Kidd in Combo and summarised them as follows:[13]

  1. The Court of Appeal went on to emphasise the importance of the proper functioning, the integrity and efficiency of the criminal justice system:

Section 420D does not define the phrase ‘the interests of justice’. It is of wide connotation. It necessarily encompasses the interests of each of the parties in the litigation. In addition, the community has a legitimate interest in the efficient and just resolution of criminal trials. The interests of justice include the public interest in the fair and efficient conduct and adjudication of criminal trials.[15]

  1. In Combo, Chief Judge Kidd, considered that it was very much in the interests of justice that the criminal justice system did and was seen to continue to operate as best it could in all the circumstances of the necessary restrictions imposed because of the risks the pandemic created for public health.[16] In the current circumstances where jury trials have resumed what must nonetheless be recognised is Parliament’s intent to once again facilitate the court’s capacity to continue to efficiently dispense justice to parties and thereby the community. The facilitative nature of the current JAT provisions now in the CPA are plainly meant to operate in conjunction with, but at times in place of, a jury trial. Thus, while jury trials have resumed, the ongoing consequences of the pandemic has meant the smooth and efficient operation of jury trials is difficult to maintain. The JAT provisions allow for the continued ‘proper functioning of the criminal justice system within the courts’.[17]
  2. The circumstances of this case itself are illustrative of just how fragile the resumption of jury trials has proven to be given that COVID-19 is still well and truly amongst us. There are a number of interconnected aspects arising from this fragility that become clearer with a short analysis of the procedural history and circumstances of this case.

The procedural history, delays and circumstances of this case

  1. The allegations in this matter are that the accused man raped the complainant by digital penetration of her vagina on two separate occasions in 1995 and 1996 during the course of a massage which followed martial arts lessons at the accused’s home. The accused denies the penetrations. The central fact in issue is whether the prosecution can establish beyond reasonable doubt that the penetrations occurred. Based on the defence submissions, it is alleged that there are significant related issues that go to the reliability of the memory of the complainant.[18]
  2. The allegations were raised with the police in 2017. The accused was arrested and interviewed on 4 July 2018. He was not charged until 1 February 2019. He was committed to this Court on 12 July 2019. His trial was listed to commence in September 2020, but that listing date was adjourned due to the COVID caused suspension of jury trials. The trial was re-listed to commence on 18 March 2022. Unfortunately, at or around that date in March, the complainant’s father was terminally ill. An application was made by the prosecution to adjourn the trial. It was opposed. The application was granted by the trial judge. The trial was relisted to commence on 26 April 2022. The trial judge said in her reasons for granting the adjournment that, but for being able to secure a new trial date relatively proximate to the earlier date, the adjournment would not have been granted.[19]
  3. On 26 April 2022, the prosecution again applied for the trial to be adjourned as the complainant had tested positive for COVID and had to be in isolation for at least the next 7 days. The various alternatives put forward by the defence to have the complainant give evidence from where she was isolating were opposed as the complainant had expressed a desire to give evidence in Court.
  4. The prosecution’s application to adjourn the trial has itself been adjourned as a consequence of this application for a JAT being raised in response to the risk that the proposed jury trial would have to be adjourned and likely for some time into the future.
  5. As can be seen, the application, submissions and consequential timetables for the trial to continue, whether by judge alone or before a jury, have been put together rapidly by the parties. So too has this ruling. I have, however, been much assisted by the submissions of counsel on both sides.
  6. Rather than set out in detail the submissions of the parties, given that time is of the essence, I will endeavour to deal with what are the key factors and what is in dispute in my analysis of whether or not it is in the interests of justice to order a JAT.

Analysis

  1. Although it has only been a relatively short period of time since jury trials have resumed, what has occurred with this trial mirrors, or is another example of, what the Court has experienced since jury trials resumed. The experience of the Court has been that a number of jury trials have had to be adjourned at the last moment because a key participant tests positive and thus has to go into isolation until there is a negative RAT result. This involves a delay of at least 7 days and possibly more. What then arises is a logistical logjam.
  2. Firstly, the Court has heavily listed trials so as to tackle the backlog. That means moving this case, or adjusting its expected empanelment date even slightly in order to accommodate an isolation period, is far from straightforward. In short, it is far from guaranteed that a judge, a jury or a courtroom would easily be found if a jury trial such as this does not start on its allocated date and time. Further, it is not to be forgotten that, in this case, even after the complainant has returned a negative result, her health must be such that she is able to give of her best in her evidence and endure cross-examination. A resumption date is always uncertain.
  3. However, the availability of the judge, jury and courtroom are not the most difficult of the logistical problems.
  4. The resumption of jury trials has exposed a real concern for solicitors in being able to brief counsel with the experience and capabilities to appear in serious criminal trials. All the reasons for this conundrum need not be discussed or debated here. It is a real problem, and again this case itself is a genuine example of the problem. It is without a doubt that very experienced and competent counsel have been briefed on both sides for this trial. All have other proximate commitments that make the running of a jury trial, from the earliest time the complainant could be able to attend court, either extremely risky or more likely impossible. Estimating the time a committal will take, including jury deliberation time, is fraught.
  5. I have read closely the parties submissions and estimation of how long this case as a jury trial may take at best without any more interruption. The very best estimate with the most optimistic view of the unknown period of jury deliberation still creates unfair pressures on counsel with regard to other commitments. The more realistic scenario is that a jury trial cannot be completed within the time that would be available to counsel.
  6. By contrast, a JAT could be completed though the timeframes remain tight. The point here that goes to the issue of the interests of justice is that, by completing the evidence and address in a JAT within the time now available to counsel, means the trial would be resolved with a certain verdict one way or other in the very near future. This outcome can be more confidently predicted because a JAT could with more agility deal with any other interruptions caused by COVID or otherwise. Jury trials are less able to operate with the same flexibility and thereby often have to respond to interruptions by discharge and adjournments.[20]
  7. The initial problem of the limitations on counsel availability means that, if the trial is not done within a shorter timeframe from when the complainant is available to give evidence in court, then the next time counsel are available, in particular defence counsel, is a long time away. In truth, with the courts lists and counsels commitment, a mutually convenient time is realistically predicted to be late 2022, if not into 2023. Given the delays thus far with this case, those sort of timeframes are intolerable. It is in the interests of justice to have this trial resolved without it simply being adjourned off to these sorts of distant dates.
  8. As was emphasised by the Court of Appeal in Oxymed and Chief Judge Kidd in Combo, delay has an adverse impact on the accused, the prosecution and the complainant. Further, a potentially lengthy delay is a powerful factor weighing in favour of ordering a judge alone trial. The reasoning in Oxymed and Combo relating to the impact of delay still has great relevance to applications for a JAT, notwithstanding that jury trials have resumed which was not the case at the time of those decisions.
  9. I have, in my reasoning thus far, given weight to the accused, in particular, retaining his counsel of choice. That is inherently an important matter. However, there are circumstances where choice of counsel must yield to the other factors so as a trial can proceed. That scenario, in general terms, had a greater precedence in pre-pandemic times when securing replacement counsel was a common feature of the way the criminal justice system operated. That is simply the reality of the criminal justice system at the present time. Finding replacement counsel with anywhere near equivalence is a real difficulty that the courts must, for the time being, at least recognise and work with.
  10. This means recognising the cascading problems for counsel’s other trials that would be caused by insisting a trial proceed at a point when the complainant is able to come to court.
  11. In my view, in this case, the financial cost and psychological stress already endured by the accused would be unjustifiably exacerbated if he was faced with finding and building trust in new counsel at effectively short notice.
  12. To a lesser extent, but still of real importance, is the impact on the prosecution, especially the over worked Office of Public Prosecutions instructors, if new prosecution counsel have to be engaged.
  13. In my view, at this particular time, the consequences of the pandemic on the availability of counsel enhances the weight to be given to an accused’s preference for his counsel of choice, and also to the value to the prosecution of continuity of control.
  14. In the end, those factors are, in terms of the efficiency and integrity of the system, matters weighing in the assessment of the interests of justice in favour of a JAT. The Court of Appeal in Oxymed recognised authorities that real weight should be given to an accused’s wish to have a JAT. The Court said:

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.[21]

  1. A further factor to be considered under a rubric of potential delay, if this remains as a jury trial, is that a JAT held now does reduce the backlog and does so, in this case, immediately or in a short period of time. The reduction of the backlog is, in and of itself, in the interest of justice. If this were to remain a jury trial to be heard sometime in the future, it occupies a spot not then available for another jury trial case. Also, as a jury trial, the risk of a hung jury exists. That is far from determinative but it must be the case that Parliament, by the facilitated nature of those JAT provisions, intended to ensure certain resolution in those cases tried by a judge alone.
  2. In opposing this application, the prosecution do acknowledge that not starting the trial until the complainant is able to attend court creates risks that the trial will run into counsel’s other commitments. However, the prosecution contend the estimates of a jury trial, in particular the estimates of jury deliberation time set out in the defence submissions, are overly pessimistic.
  3. However, the real point which was pressed by the prosecution in support of a jury trial relates to the issue of the assessment of the complainant’s reliability and the related concept of her credibility.
  4. The prosecution contend that the assessment of the complainant’s reliability ought to be undertaken by a jury of 12 representing the community. The prosecution contend the issue of her reliability necessarily involves assessments of her credibility as well, and these are the quintessential tasks of a jury. The prosecution maintains that what expert evidence may be called or permitted to be addressed is not such to make a JAT more in the interest of justice. Rather, the complainant’s demeanour and evidence as to how a blocked out, but traumatic, incident can resurface at a later point are results that call for the wisdom and expert of 12 members of the community and not one judge.
  5. The defence contend that, in all the circumstances, how the complainant came to recall or have a memory of the two digital rapes gave rise to complex issues of memory and expert evidence will be legitimately adduced on this topic.
  6. It seems the defence essentially submit that an honest held but mistaken memory may well have arisen in all the circumstances of the complainant’s psychological treatment in or around 2017. The focus will be upon whether the prosecution can prove beyond reasonable doubt that the complainant’s memory is reliable and she is recalling actual incidents. In this sense, the credibility of the complainant is not, or far less, an issue.
  7. Even if it were the case that the credibility of a key witness was central to the facts in issue in a trial, that does not mean the interests of justice favour a jury trial.
  8. The issue of the credibility of a key witness has been raised and discussed in a number of applications for a JAT under the previous provisions.
  9. Judge Gamble, in DPP v Ritchie,[22] dealt with this issue of the credibility of a key witness by concluding that this question, of whether or not the assessment by the fact finder of the credibility of important witnesses, is one that favours a jury trial, ‘appears not to have been authoritatively settled in this country’.[23]
  10. His Honour’s analysis led him to the conclusion that the fact that the case involves an assessment of the credibility of important witnesses is ‘to be treated as a neutral consideration’ in determining whether it is in the interests of justice to order a judge alone trial.[24]
  11. I respectfully agree with Judge Gamble’s conclusion.
  12. Further, on this topic of reliability of the complainant’s memory and the role of expert evidence, the defendant in the written submissions points to authority in New South Wales that, where there is a case involving complex expert evidence, that can weigh in favour of a JAT.[25] Indeed Oxymed was a case that involved very complex medical and engineering evidence. The point in Oxymed was that the expert evidence did not go to the issue of a community standard but to the finding of facts.

Conclusion and Order

  1. As was the case in Combo and Oxymed, I consider that the factors identified above, in combination, lead to the conclusion that it is in the interests of justice that this case be determined in a JAT.
  2. The delay, stress and costs so far ought not be exacerbated. The delay could well be to the end of 2022 to ensure current counsel of choice is available to run the trial. The difficulties in finding equivalent counsel are very considerable. A JAT would be able to more flexibly deal with further contingencies and arrive at a certain outcome, which in turn lowers the backlog. The fact in issue and the related reliability of the complainant’s memory, while often central for jury trials, are not factors that go to a community standard invoking the need for the combined wisdom of jurors representing the community. The issues are well within the capacity of a judge to objectively assess and then explain the reasons.
  3. As noted at the outset, the uncontested aspects of s 420E(1) being s 420E(1)(a)-(c) of the CPA are plainly satisfied. I am of the firm view that a 420E(1)(d) of the CPA is also satisfied. Thus, my conclusion and consequential order is that this application is granted and a trial by judge alone without a jury is to be held.
  4. When all factors are considered, I am of the view that it is in the interests of justice in this case at this time to order a JAT.
  5. I am of the view that all the criteria, being s 420E(1)(a)-(d) of the CPA, are satisfied and thus my conclusion is that a trial by judge alone without a jury will be held. The application is granted.



[1] A pseudonym.

[2] Criminal Procedure Act 2009 (Vic) s 420E(3).

[3] Criminal Procedure Act 2009 (Vic) s 420A(1), s 420B.

[4] Public Health and Wellbeing Act 2008 (Vic), s 165AE – the current declaration applies to the state of Victoria from 11.59pm Tuesday 12 April 2022 for three months, expiring at 11.59pm on 12 July 2022.

[5] These criteria were set out in the then section 420D of the CPA under the previous regime.

[6] [2020] VCC 726 (2 June 2020).

[7] [2021] VSCA 68 (23 March 2021).

[8] It is to be noted that an application can be made by an accused or on the courts ‘own motion’ under s 420E(2)(a) of the CPA.

[9] Hooper and Oxymed Australia Pty Ltd v DPP [2021] VSCA 68 [35]-[36], [38], [42], [47]; DPP v Combo [2020] VCC 726 [16].

[10] DPP v Combo [2020] VCC 726.

[11] Hooper and Oxymed Australia Pty Ltd v DPP [2021] VSCA 68.

[12] Criminal Procedure Act 2009 (Vic) s 420E(1)(a).

[13] Hooper and Oxymed Australia Pty Ltd v DPP [2021] VSCA 68 [37]; DPP v Combo [2020] VCC 726 [46]-[48], [54], [56]-[63].

[14] Hooper and Oxymed Australia Pty Ltd v DPP [2021] VSCA 68 [37].

[15] Ibid [42].

[16] DPP v Combo [2020] VCC 726 [54].

[17] Ibid.

[18] Defence Submissions dated 26 April 2002, paragraph 10.e.

[19] Defence Submissions dated 26 April 2002, paragraph 3.b.

[20] Hooper and Oxymed Australia Pty Ltd v DPP [2021] VSCA 68, [88] and [95].

[21] Ibid [44].

[22] [2020] VCC 1111 [88]-[98].

[23] Ibid [88].

[24] Ibid [98].

[25] DPP (NSW) v Farrugia [2017] NSWCCA 197 [11].

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