Director of Public Prosecutions v van de Zandt

[2023] ACTSC 228

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v van de Zandt
Citation:	[2023] ACTSC 228
Hearing Date:	18 August 2023
Decision Date:	18 August 2023
Before:	Mossop J
Decision:	1.  by the accused on 8 February 2023 and filed on 15 February

The purported written election for trial by judge alone made s 68B of the Supreme Court Act 1933 (ACT).

Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to set aside election for judge alone trial – where charge concerns conduct alleged to have occurred in 1986 – whether s 84 of the Legislation Act 2001 (ACT)
operates to deem a reference to ss 92E and 92K of the Crimes
Act 1900 (ACT) a reference to ss 55 and 61 – whether the
accused accrued a right to elect for a judge alone trial thereby
engaging s 102 of the Legislation Act 2001 (ACT) – declaration
that the election by the accused is not a valid election
Legislation Cited:	Crimes Legislation Amendment Act 2001 (ACT) Court Procedures Rules 2006 (ACT), r 4752 Crimes Act 1900 (ACT), ss 55, 61, 92E, 92K, pt 2.2 Legislation Act 2001 (ACT), ss 6, 84, 102 Supreme Court Act 1933 (ACT), ss 68A, 68B
Cases Cited:	Mattherson v Burton (1971) 124 CLR 1 Newell v King (1936) 55 CLR 707 R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 R v Girvan [2012] ACTSC 142; 222 A Crim R 138 R v Fearnside [2009] ACTCA 3; 3 ACTLR 25 Rodway v The Queen (1990) 169 CLR 515
Parties:	Director of Public Prosecutions Antonius van de Zandt (Accused)
Representation:	Counsel
C Diggins (DPP)
E Chen (Accused)
Solicitors
Director of Public Prosecutions
Legal Aid ACT (Accused)
File Number:	SCC 310 of 2022
MOSSOP J:
Introduction
1․	The prosecution has applied for an order that the trial of these proceedings, which is
listed to commence on 28 August 2023, be heard by a judge and jury in accordance with
s 68B(1) of the Supreme Court Act 1933 (ACT).
2․	That application is made in circumstances where the accused has filed an election for a
trial by judge alone but the prosecution contends that the offences that are the subject
of these proceedings are each an “excluded offence” referred to in s 68B(4) of the Act.
As a consequence, the prosecution contends that s 68A requires that the proceedings
be heard by a judge and jury.
3․	The accused is charged with sexual intercourse with a young person contrary to s 92E(2)
of the Crimes Act 1900 (ACT) and committing an act of indecency with a young person
contrary to s 92K(2) of that Act. The offending is alleged to have occurred between 14
and 17 March 1986.
4․	The relevant procedural chronology is as follows:

(a)	14 – 17 March 1986: date of alleged offences;
(b)	15 November 2022: accused committed for trial;
(c)	12 January 2023: indictment filed in Supreme Court;
(d)	8 February 2023: election for trial by judge alone filed;
(e)	3 July 2023: accused arraigned and pleaded not guilty; and
(f)	28 August 2023: trial listed to commence.

5․	The solicitor for the accused was advised by the prosecution on 7 June 2023 that the
validity of the election would be challenged.
6․	Section 68B of the Supreme Court Act 1933 provides:

68B Trial 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.

(4) In this section:

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.

7․

Part 2.2 of schedule 2 includes the following items

Column 1	Column 2	Column 3	Column 4
item	legislation	provision and	description

case (if any)

10	Crimes Act	55	sexual intercourse with young person
17	Crimes Act	61	acts of indecency with young people

8․	Significant for present purposes is the fact that ss 55 and 61 were previously numbered
ss 92E and 92K of the Crimes Act 1900 (ACT). They were renumbered so as to bear
their current numbers in September 2001 by s 43 of the Crimes Legislation Amendment
Act 2001 (ACT).
9․	The prosecution relies upon s 102 of the Legislation Act 2001 (ACT) which provides:

102          References to laws include references to laws as in force from time to time

…

(2) In an ACT law, a reference to a provision of a law includes a reference to

the following:

(e) the provision as originally made, and as amended from time to time since it was originally made;

…

10․	The prosecution relies on s 102(2)(a) to establish the proposition that a reference to a
provision of a law in items 10 and 17 of the table in pt 2.2 of Schedule 2 includes a
reference to the provisions as they were previously numbered and as amended from time to time. In short, the reference to s 55 includes a reference to s 92E as at March
1986 and the reference to s 61 includes a reference to s 92K as at that date.
11․	The prosecution submitted that this is sufficient to establish that the offences with which
the accused has been charged are “excluded offences”. It says that a similar conclusion
was reached in relation to s 92K of the Crimes Act in R v DF (No 2) [2012] ACTSC 3.

Accused’s argument

12․ The argument put on behalf the accused arises out of the following chronology:

(a)	14-17 March 1986: date of alleged offences;
(b)	6 September 1993: Section 68B inserted into the Supreme Court Act providing

a general entitlement to elect for trial by judge alone;

(c) 27 September 2001: Renumbering of ss 92E and 92K upon the publication of

republications 9 of the Crimes Act; and

(d) 7 July 2011: Amendment of s 68B so as to exclude certain offences identified

as “excluded offences”.

13․	The argument put was that following the introduction of an entitlement to elect for trial by
judge alone in 1993 the accused had an accrued right to such a trial and that the
amendment made in 2011 did not take away that accrued right because s 84 of the
Legislation Act 2001 preserved it. That is because s 84(1)(c) provides:

(1) The repeal or amendment of a law does not –

…

(c) affect an existing right, privilege or liability acquired, accrued or incurred under the law.

14․	The accused submitted that the right to make an election for a jury trial was a “right …
accrued … under the law” as it existed between 1993 and 2011. Insofar as s 68B and
pt 2.2 of Schedule 2 would indicate to the contrary, the accused submitted that s 84,
which preserved his accrued right, would prevail over the operation of s 102 because
s 84 was a “determinative provision” within the meaning of s 6 of the Legislation Act 2001
but s 102 was not. Therefore, the accused argued that the preservation of the accused’s
accrued right by s 84 would prevail over the operation of s 102 which would otherwise
have required the references to ss 55 and 61 to include references to ss 92E and 92K.
15․	He submitted that the fact that the right might be inchoate or contingent did not mean
that the right was not accrued and relied upon the decision of Mattherson v Burton (1971)
124 CLR 1.

Consideration and decision

16․	At the core of the argument put by the accused is the proposition that an entitlement to
make an election was a right which could have “accrued” at a time prior to any criminal
proceedings having been commenced. The submissions of the accused proceeded on
the basis that if a crime had been committed, then when the legislature made available
the possibility of an election for trial by judge alone in 1993 the accused “accrued” a right
as a result of either having committed the offence, or, subsequently being alleged to
have committed the offence and the Act of the legislature. Three points can be made
about this contention:

(a) No authority was pointed to which supported the proposition that an

entitlement to a particular procedure would be accrued prior to the

commencement of court proceedings.

(b) If any accrual was to occur, then, on the submissions made by the accused

such an accrual would be dependent, in some way, upon him having

committed the offence, or, being subsequently accused of having committed

the offence.

(c) If the accrual was not dependent upon him as having committed the offence,

then it must be said to have arisen solely as a result of the legislature’s action

in permitting an election to be made. Mere legislative action is insufficient to

permit a right under such legislation to “accrue”.

17․	As to whether a right to procedure could accrue, the starting point is the general
proposition accepted by the High Court that: “A person who commits a crime does not
have a right to be tried in any particular way; merely a right to be tried according to the
practice and procedure prevailing at the time of trial”: Rodway v The Queen (1990) 169
CLR 515 at 521.
18․	Newell v King (1936) 55 CLR 707 was a case demonstrating an exception to this general
principle. It was held that the accused accrued a right to be convicted only upon a
unanimous verdict in circumstances where the amendment to the law so as to permit
majority verdicts occurred after the accused had been arraigned upon an indictment for
manslaughter and pleaded not guilty.
19․	In Rodway, the issue was whether or not an amendment which removed a requirement
for corroboration of a complainant’s evidence applied in circumstances where a person
had been charged prior to the amendment taking effect but was only committed for trial
subsequently. The court referred to a provision equivalent to s 84 of the Legislation Act
which preserved accrued rights and said (at 523) that “the applicant had acquired no
right to a particular mode of procedure at his trial, at all events before his trial had
commenced. A right to a particular procedure is acquired only when the occasion for the
application of that procedure arises.”
20․	The court continued, saying (at 523):

Indeed, the difficulty experienced by counsel for the applicant in identifying an earlier time at which such a right might be acquired points to the inevitability of that proposition. If a right to a particular form of trial arises before trial, there is no logical reason for not saying that it is acquired upon the commission of the offence to be tried or even at the time of committal, and yet to say it is acquired at any earlier time means that it must be a right vested in all.

21․	The position is the same in the present case. No entitlement to elect for trial by judge
alone arose until the occasion for its exercise arose. No right accrued merely as a result
of the enactment of s 68 B in 1993. Even if the accused was to admit the offending, which
he has not, that would not be sufficient to give him an accrued right to a particular
procedure at some future criminal trial. There could have been no election for a trial by
judge alone until a “criminal proceeding against an accused person” within the meaning
of s 68B was on foot. No such criminal proceeding was on foot at the time of the
amendments to s 68 B to introduce the concept of “excluded offences” in 2011. In those
circumstances it is unnecessary to consider further precisely when an entitlement might
have accrued in different circumstances. It is sufficient to note that in R v Girvan [2012]
ACTSC 142; 222 A Crim R 138 Refshauge J concluded (after an extensive review of the
authorities but apparently without the benefit of argument on the point: [57]) that a right
had accrued to make an election only “when an indictment has been filed” and such a
right did not accrue as early as committal for trial. See also R v DF (No 2) [2012] ACTSC
3 at [42]-[43].
22․	The accused challenges the correctness of the decision in Girvan. It is not necessary for
present purposes to determine the correctness of Girvan as to whether and precisely
when a right to make an election would accrue. It is only necessary for the purposes of
this case to reach a conclusion that it did not accrue merely as a result of the enactment
of s 68B in 1993. That is the case whether or not the accused committed the offences of
which he is charged. That conclusion arises from the decision of the High Court in
Rodway and is reflected in the passages quoted earlier in these reasons.
23․	Because the accused did not accrue, for the purposes of s 84 of the Legislation Act, a
right to make an election for trial by judge alone prior to the amendment of s 68B in 2011,
there is no basis upon which to qualify the operation of s 102 of the Legislation Act in its
application to the contents of the table in pt 2.2 of Schedule 2. As a result, the references
to ss 55 and 61 in that table include a reference to ss 92E and 92K. That means that the
charges faced by the accused in the present proceedings are “excluded offences” for the
purposes of s 68B and the accused was not entitled to make an election in the
proceedings.

Disposition

24․	The orders sought in the application in proceeding are in the form of a direction that the
trial be heard by a judge and jury. It is brought pursuant to r 4752 of the Court Procedures
Act 2006 (ACT) which requires certain applications “in the course of a criminal
proceeding” to be made in writing. The appropriate way to characterise the present
application is one that is challenging the validity of an election filed in the proceedings. If
that election is invalid and any operation of it is denied, then the effect of s 68A is to
require that the proceedings shall be tried by jury. The question is then how best to deny
any effect to what I have concluded to be an invalid election. In R v Fearnside [2009]
ACTCA 3; 3 ACTLR 25 the Court of Appeal set aside an order granting leave to an
accused to file an election. Given that an election had been filed pursuant to that order,
Besanko J with whom Gray P and Penfold J agreed said (at [110]):

In addition, the Court should make a declaration that the purported written elections for trial by judge alone made by the respondent and filed in Court on 31 March 2008 and 2 April 2008 respectively are not valid and effective elections for the purposes of s 68B of the Supreme Court Act 1933 (ACT).

25․	Having regard to the approach adopted in Fearnside, I consider that it is appropriate to
make an equivalent declaration.

Orders

26․ The declaration of the Court is:

1.       The purported written election for trial by judge alone made by the accused on

8 February 2023 and filed on 15 February 2023 is not a valid and effective

election for the purposes of s 68B of the Supreme Court Act 1933 (ACT).

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: