IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-01751

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		

THIEN NGUYEN		

JUDGE:	HIS HONOUR JUDGE MULLALY 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	By written submissions	
DATE OF RULING:	20 April 2022	
CASE MAY BE CITED AS:	DPP v Nguyen (Application for trial by judge alone)	
MEDIUM NEUTRAL CITATION:	[2022] VCC 535		

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 consented to by the prosecution – Interests of justice – Accused in custody for lengthy period – COVID Interruptions  – No issue of community standards – No issue as to credibility of any witness.
Legislation Cited: 	Criminal Procedure Act 2009 (Vic); The Justice Legislation Amendment (Trial by Jude Alone and Other Matters) Act 2022 (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. 

Ruling: 		Application for trial by judge alone granted.

APPEARANCES:	

Counsel	

Solicitors	
For the Applicant	Mr J Moore	Paul Vale Criminal Law	
			
For the Respondent	Mr P Pickering
	Office of Public Prosecutions	

Legislative Provisions governing Applications for Judge Alone Trial
1.	This is an application made on behalf of Thien Nguyen for a judge alone trial. The application is now able to be made because of the recently passed Justice Amendment (Trial by Judge Alone and Others Matters) Act 2022 (‘the Act’), which inserted the new Chapter 9 into the Criminal Procedure Act 2009 (‘CPA’). These provisions set out in Chapter 9 allow for a judge alone trial (‘JAT’) while a ‘pandemic declaration is in force’.
2.	The new provisions reintroduce judge alone trials which were previously available for a prescribed period of 12 months up to 24 April 2021.  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. 
3.	The key criteria for determining an application remain the same as they were under the previous legislation. They are now set out in section 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.

4.	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’), set out the guiding principles. In Hooper and Oxymed Australia Pty Ltd v DPP (‘Oxymed’), the Court of Appeal endorsed the approach taken by Chief Judge Kidd in Combo.
5.	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. 
6.	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.
7.	As with most cases, including Combo and Oxymed, the important consideration in this application made by Mr Nguyen is the ‘interest of justice’ criteria set out in s 420E(1)(d). The other provisions, ss 420E(a)-(c), are not at all controversial and can be dealt with quickly. 
8.	Firstly, by indictment L11115143 the Director of Public Prosecutions has charged the accused man, with one charge of cultivation of a narcotic plant namely cannabis in not less than the commercial quantity, contrary to section 72A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and one charge of theft contrary to section 74(1) of the Crimes Act 1958 (Vic). Accordingly, each charge set out on the indictment is ‘for an offence under the law of Victoria’. 
9.	Next, it is 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 section 420E(1)(b) of the CPA is satisfied.
10.	Thirdly, 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.
 ‘Interests of Justice’
11.	The real issue is whether the court considers that it is in the ‘interests of justice to make the order’ pursuant to section 420E(1)(d) of the CPA. In that regard, as I have said, I adopt the broad analysis and reasoning of the Court of Appeal in Oxymed, and of Chief Judge Kidd in Combo. However, this case is not so much dependent on the issue of 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 JAT have been operating parallel to jury trials for some time. 
12.	 In Oxymed, the Court of Appeal summarised and endorsed six relevant principles identified by Chief Judge Kidd in Combo. The first 2 principles have general application and are not as focussed on the question of delay. Those first two principles were summarised by the Court of Appeal as follows:
	(1) Section 420D 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 420D(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 420D(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. 

13.	The Court of Appeal went on to emphasise the importance of the integrity, proper functioning and efficiency of the criminal justice system by reference to a decision of the Western Australian Supreme Court:
	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. In Western Australia v Edwards, Corboy J expressed the principle in the 	following terms:
		The expression ‘in the interests of justice’ includes not 		only the interests of the parties but also the public 			interest. There is a public interest in maintaining the 		proper functioning and integrity of the criminal justice 		system as administered by the courts. 

14.	A further point that was emphasised in Oxymed is a heightened requirement to give weight to the subjective views of the accused. As was said in Oxymed, with reference to the relevant authorities from New South Wales and Western Australia:
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 were 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 the accused must carry substantial weight in the courts determination whether it is in the interest of justice to make such an order. 

Analysis
15.	I will in considering the application of the relevant principles derived from Oxymed and Combo refer to the helpful and concise submissions from the parties. 
16.	But first I will set out a very bare bones outline of the case against the accused man. In this case on 6 May 2020, the police found 183 cannabis plants weighing 247kgs in 8 rooms in a suburban house at 6 Chevrolet Avenue, Shepparton. There was an electrical bypass found as well. The forensic evidence said by the prosecution to link the accused to the crop and the house is in the form of fingerprint and DNA evidence. Further CCTV footage from a post office shows the accused paying an electricity bill for the house on 5 May 2020. The accused was arrested in a car on 7 May 2020 after a neighbour informed police of the presence of the car at the house the day after the raid. Items were found in the car that the prosecution say makes it more likely that the accused is connected to the cultivation at the house. The accused gave no comment answers in his interview with the police.
17.	The straightforward facts of this case are said by the parties to mean this is a simple case where the fact in issue is whether the prosecution can prove beyond reasonable doubt that the accused cultivated the cannabis and did so with an intent to cultivate not less than a commercial quantity of the plant. The fact in issue with respect to the theft of electricity is whether the prosecution can prove beyond reasonable doubt that the accused was party to the installation of the by-pass.
18.	Although jury trials have recommenced those trials are, as Counsel for Mr Nguyen put it, ‘fragile’, in the sense that COVID caused interruptions are proving to add significant time to many trials and worse causing trials to be abandoned if a key participant has to go into isolation. The experience of the Courts is that jury trials are now going much longer due to COVID interruptions, as they are termed, which arise as a consequence of one of the many critical participants testing positive or being a close contact of a positive case. Unfortunately, it is the Court’s experience that in a solid number of cases a positive result to a key participant means the trial has to stop, the jury discharged, and a new trial fixed.
19.	That latter step is also extremely fraught, as trial Counsel usually have very few gaps in their calendars to allow for the trial to be refixed in a reasonable time after the discharge. The lack of alternative experienced counsel significantly exacerbates the situation. In short, if a trial has to be aborted because of a COVID positive, or for any reason, the trial will likely not be able to be refixed for many months into the future. This sort of potential for further delay should be avoided if at all possible. A JAT reduces the risks, as there is far greater and more flexible possibilities, including conducting the trial while a participant is in isolation. This is realistically not possible with a jury trial.
20.	In this case where the accused has been in custody since 7 May 2020, a few weeks short of 2 years, avoiding any COVID caused delay resulting in a discharged jury and the subsequent unavailability of Counsel is at a high premium. 
21.	The fact the accused has been in custody for a lengthy period of time adds significantly to the weight to be given to the accused’s “subjective wishes” to have a JAT. 
22.	This point leads to a connected matter also raised by the defence which was a JAT would involve less court time and resources. That is the case in terms of a direct comparison of reasonable estimates of a jury trial compared to the estimate for a judge alone trial. In this case a key aspect of the evidence will be, or could be, the DNA evidence. The adducing and explanation of this type of evidence before a jury would be much longer than in a JAT. Further, the directions required in a jury trial are complex and of some length.
23.	Also, in a JAT there will be a verdict. That is certain. A hung jury is a factor in all jury trials and the refixing that I have discussed already comes into play if there is a hung jury, adding months if not longer before there is finality.  
24.	As was set out above in the passages cited in Oxymed and Combo, the expression ‘the interest of justice’ was said to be a ‘broad’ one. ‘It includes but extends beyond the interest of the parties to the public interest in ensuring the integrity and proper functioning of the criminal justice system’. The integrity and proper functioning of the criminal justice system is in most cases promoted by a vibrant system of trial by jury. However, ‘integrity and proper functioning’ can in some cases be enhanced or delivered by a trial by judge alone. It is not necessary here to endeavour to identify the criteria or types of cases where the integrity and proper functioning of the criminal justice system would be enhanced or delivered by a JAT, but it seems to me a simple case where most of the evidence is not in dispute, and the key issue in dispute is the interpretation and drawing of conclusions from the evidence, is the sort of case that, if done with greater efficiency in a JAT, would tend to enhance the proper functioning of the criminal justice system. It would enable the Court to efficiently deal with the current large backlog of cases generally and in Shepparton in particular.
25.	It remains the case that any delay to the hearing and resolution of a criminal trial is a central consideration in determining whether in a particular case it is in the interests of justice to order that the trial be by judge alone. 
26.	As the jurisprudence regarding JAT applications developed under the previous legislation, it became clear that weight was, and should be, given to the size and fact of the backlog of pending criminal trials in the County Court. By this I mean that even though delay for a particular case may not be as significant compared to other cases, it was the fact that a JAT would with certainty reduce the number of criminal trials permitting the Court to hear and deal with other trials. This was seen and still is to be seen as a factor establishing the interests of justice. 
27.	Two further issues need to be addressed and can be dealt with quickly. The first is that the authorities in this area identify that a jury trial is indicated or strongly preferred where there needs to be the application of a community standard. As noted above, in this case, the key fact in issue is whether the prosecution can prove beyond reasonable doubt that the accused cultivated the cannabis and did so with an intent to cultivate not less than a commercial quantity of the plant.
28.	Thus, there would be no issue of community standards in this case. The defence has made this clear at all points. Accordingly, this aspect is not an impediment to a judge alone trial.
29.	The second issue also relates to the central fact in issue, in the sense that there is in this case no issue as to the credibility of any witness as overwhelmingly the evidence is not in dispute. In any event, as Judge Gamble made clear in DPP v Ritchie, 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’.
30.	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. 
31.	I respectfully agree with Judge Gamble’s conclusion. 
32.	I take into account, pursuant to section 420E(3), the submissions of the prosecution, which helpfully set out a number of factors where the prosecution agreed with the defence submissions (and some factors where it disagreed). In the end the prosecution was of the view that in this case a JAT is in the interests of justice.
Conclusion and Order
33.	Accordingly, given the factors set out above, including the significant weight to be given to the accused’s expressed and informed wish to have a JAT, I am well satisfied that it is in the interests of justice to order this trial be heard by a judge alone. Given that I am of the view that the interests of justice criteria is satisfied and, as stated above, given the other criteria in section 420E of the CPA being also satisfied, I am led to the conclusion and order that the trial of Thien Nguyen will be by judge alone. The date and place of the trial will be fixed following consultation with the parties and the availability of a judge.