R v Ali (No 3)

Case [2020] ACTSC 103


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Ali (No 3)

Citation:

[2020] ACTSC 103

Hearing Date:

23 April 2020

DecisionDate:

30 April 2020

Before:

Murrell CJ

Decision:

Order that the trial be heard by a judge alone.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – COVID-19 Emergency Legislation – Court ordered judge alone trial – Principles of fair trials – Orderly and expeditious discharge of court business – Interests of justice – Legislative interpretation – Human rights – Magna Carta – Benefits of trial by jury – History of judge alone trial in ACT

Legislation Cited:

COVID-19 Emergency Response Act 2020 (ACT) s 3

Constitution s 80
Criminal Proceedings Legislation Amendment Act2011 (ACT) (repealed)
Criminal Procedure Act 1986 (NSW) s 131
Crimes Act 1900 (ACT) ss 54(1), 60(1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
Human Rights Act 2004 (ACT) ss 6, 21, 22, 30
International Covenant on Civil and Political Rights, signed 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 4, 14
Interpretation Act 1967 (ACT) s 65 (as at 1 March 2000) (repealed)
Legislation Act 2001 (ACT) ch 14, ss 4, 17(2), 137, 138, 139, 140, 141, 142, 145, sch 1
Magna Carta (1297) 25 Edw 1 cl 29
Public Health (Emergency) Declaration 2020 (No 1)
Seat of Government Acceptance Act 1909 (Cth) s 6
Seat of Government Supreme Court Act 1933 (Cth) as enacted s 14
Supreme Court Act 1933 (ACT) ss 22 (now amended), 68A, 68B, 68BA, sch 2

Supreme Court Amendment Act 1933 (ACT) (repealed)

Cases Cited:

Alqudsi v The Queen [2016] HCA 24; 258 CLR 203

BHP Billiton Ltd v Shultz [2004] HCA 61; 221 CLR 400
Brown v The Queen (1986) 160 CLR 171
Capic v Ford Motor Company of Australia Ltd [2020] FCA 486
JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38
Kable v Director of Public Prosecutions (1996) 189 CLR 51
Landsman v The Queen [2014] NSWCCA 328; 88 NSWLR 534
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
R v Belghar [2012] NSWCCA 86; 217 A Crim R 1
R v Coleman [2020] ACTSC 97
R v Fearnside [2009] ACTCA 3; 3 ACTLR 25
R v Girvan [2012] ACTSC 142
R v UD (No 2) [2020] ACTSC 90
RKF v The Queen [2016] NSWCCA 116
The State of Western Australia vMartinez [2006] WASC 25; 159 A Crim R 380
TheState of Western Australia v Rayney [2011] WASC 326
TVM v The State of Western Australia [2007] WASC 299; 180 A Crim R 183

Twomey and Cameron v United Kingdom; Guthrie v United Kingdom (European Court of Human Rights, Chamber, Application Nos 67318/09 and 22226/12, 28 May 2013)

Texts Cited:

Australian Capital Territory, Parliamentary Debates, ACT Legislative Assembly, 17 February 2011

Australian Capital Territory, Parliamentary Debates, ACT Legislative Assembly, 17 June 1993
Chief Justice Higgins, “Reform to…

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AGLC
R v Ali (No 3) [2020] ACTSC 103
Case
[2020] ACTSC 103
Decision Date

CaseChat Overview and Summary

In the case of R v Ali (No 3), the defendant was charged with multiple offences related to drug trafficking and possession. The matter was brought before the Supreme Court of the Australian Capital Territory, where the defendant sought to challenge the court's decision to conduct the trial by a judge alone, rather than a jury. The defendant argued that the decision to hold a judge alone trial contravened the principles of a fair trial and denied the defendant the right to trial by jury, a fundamental aspect of the common law system.

The legal issues before the court included the interpretation of the relevant emergency legislation enacted in response to the COVID-19 pandemic, and whether this legislation was consistent with the principles of fair trials, the orderly and expeditious discharge of court business, and the interests of justice. The court had to determine whether the legislative provisions permitting judge alone trials were compatible with the defendant's rights, including the right to a trial by jury as guaranteed by the common law and potentially by the common law rights derived from the Magna Carta.

The court found that the emergency legislation was validly enacted and that the decision to order a judge alone trial was within the court's discretion. The court held that the principles of fair trials, while important, must be balanced against the need for an orderly and expeditious discharge of court business, particularly in the context of the ongoing pandemic. The court also noted the historical context of judge alone trials in the ACT and concluded that the legislative provisions were consistent with the interests of justice. Consequently, the court upheld the order for the trial to be heard by a judge alone.

The final order of the court was that the trial be conducted by a judge alone, in accordance with the provisions of the COVID-19 Emergency Legislation. The defendant's challenge to the order was dismissed, and the trial proceeded as scheduled with a judge alone.

Orders

Orders of the court

Order that the trial be heard by a judge alone.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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