R v Ali (No 3)
[2020] ACTSC 103
•30 April 2020
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Cited: | COVID-19 Emergency Response Act 2020 (ACT) s 3 Constitution s 80 Supreme Court Amendment Act 1933 (ACT) (repealed) | |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 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 Murray Gleeson, “Juries and Public Confidence in the Courts” (2007) 90 Australian Law Reform Commission Reform Journal 12 | |
Parties: | The Queen ( Crown) Haider Ali ( Accused) | |
Representation: | Counsel A Jamieson-Williams ( Crown) R Thomas ( Accused) | |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aaron Eidelson ( Accused) | ||
File Number: | SCC 92 of 2017 | |
Murrell CJ
Introduction
The accused is charged that, on 9 October 2016, he had sexual intercourse with the complainant and committed two acts of indecency on her, in each case without her consent and being reckless as to whether she consented, contrary to s 54(1) and s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act) respectively. The maximum penalties for the offences are 12 years’ imprisonment (s 54(1)) and seven years’ imprisonment (s 60(1)).
The issue is whether the trial should proceed before a judge alone.
The trial was fixed to proceed before a judge and jury on 6 April 2020. However, in March 2020, the COVID-19 health emergency impacted Australia and, in late March 2020, the Court ceased empanelling juries because of difficulties with maintaining social distancing between panel members and between jurors. The trial date was vacated.
On 2 April 2020, the ACT Legislative Assembly enacted the COVID-19 Emergency Response Act 2020 (ACT) (Emergency Act). The Emergency Act commenced on 8 April 2020. It enables the Court to order a trial by judge alone in any matter, regardless of whether the accused consents to the order.
Pursuant to s 68BA(3) of the Supreme Court Act 1933 (ACT) (SCA), on 16 April 2020, the Registrar notified the parties that I proposed to make an order that the accused be tried by judge alone and invited them to make submissions.
The parties opposed the making of an order and made written and oral submissions as to why no order should be made. Inter alia, they submitted that the emergency provisions breach s 80 of the Constitution, contravene the “Kable doctrine” (see Kable v Director of Public Prosecutions (1996) 189 CLR 51), and breach a “right to trial by jury” that is enshrined in cl 29 of the Magna Carta (1297) 25 Edw 1 (Magna Carta).
It was agreed that these three issues should be separated from the issue of whether, assuming the validity of s 68BA of the SCA, I should exercise my discretion to order a trial by judge alone.
Having considered the written and oral submissions of the parties I have decided that, subject to the resolution of the outstanding issues, I will make the order. These are my reasons.
History of the proceedings
Initially, the accused was charged with four offences, one offence of engaging in sexual intercourse without consent and three offences of committing an act of indecency.
The Crown alleged that, in the early hours of 9 October 2016, the complainant and a friend had encountered the accused at a Civic nightclub. The complainant and the accused were work colleagues. The trio migrated to the home of the complainant’s friend. The complainant entered a spare bedroom, where she fell asleep alone. Later, she awoke to find the accused on top of her with his tongue in her mouth (Count 1 – act of indecency). He continued to try to kiss and touch her, squeezing her breast (Count 2 – act of indecency), digitally penetrating her (Count 3 – sexual intercourse without consent), and attempting to pull down her pants (Count 4 – act of indecency).
On 11 December 2016, the accused was arrested. He appeared before the ACT Magistrates Court on 12 December 2016 and was granted bail.
The matter was committed to this Court for trial.
On 6 November 2017, the trial commenced before a judge and jury. The complainant gave her evidence, and it was recorded in accordance with the Evidence (Miscellaneous Provisions) Act 1991 (ACT). She was cross-examined for the apparent purpose of showing that the alleged acts did not occur and that she was an unreliable historian, inter alia, because she had been intoxicated at the time of the alleged events.
The accused was present for the first two days of the trial. On the third day, he did not appear. Early that morning, he flew to Pakistan via Dubai. A warrant was issued for his arrest and the trial continued in his absence.
The jury retired on 9 November 2017. On 13 November 2017, the jury returned a verdict of not guilty on Count 1 but failed to reach verdicts on Counts 2 to 4.
On 21 July 2019, the accused was arrested in the United Kingdom. He was held in custody until 4 October 2019, when he was extradited to Australia to face trial on Counts 2 to 4.
On 27 November 2019, the accused was refused bail and remanded in custody. He remains in custody in relation to Counts 2, 3, and 4, and a further charge that, in November 2017, he failed to appear in accordance with a bail undertaking.
On 20 February 2020, an indictment was presented relating to Counts 2, 3, and 4.
On 11 November 2019, the Court fixed the trial to commence on 6 April 2020.
The COVID-19 pandemic and the Emergency Act
On 11 March 2020, the World Health Organisation declared that the COVID-19 outbreak could be characterised as a pandemic.
On 16 March 2020, the ACT first declared a public health emergency; it was for a period of five days (Public Health (Emergency) Declaration 2020 (No 1)).
Further Public Health Emergency Directions came into effect, commencing between 19 and 31 March 2020. Initially, the Directions prohibited outdoor gatherings of 500 or more people and indoor gatherings of 100 or more people, and directed that persons returning to the ACT from overseas must self-isolate for 14 days. On 22 and 23 March 2020, the ACT Government announced the shutdown of “non-essential services” and the temporary closure of “non-essential” activities and businesses. On 31 March 2020, it prohibited most outdoor gatherings of more than two people and gatherings at residential premises that included more than two non-residents. Social distancing of one person per four square metres was mandated for all indoor gatherings. The ACT and Commonwealth governments issued recommendations against leaving the house for non-essential reasons.
The Court continued to empanel juries and to run jury trials until the trial of R v Guarini (SCC 208, 209 of 2019), which ran from 23 March to 27 March 2020.
At that stage, the Court determined that it should commence no new jury trials, a decision that had already been taken by all other Australian jurisdictions.
On 2 April 2020, the ACT Legislative Assembly enacted the Emergency Act. The Emergency Act commenced on 8 April 2020. The long title of the Emergency Act is:
An Act to provide for emergency measures in response to the COVID-19 emergency, and for other purposes
Relevantly, the Emergency Act amended the SCA by broadening the availability of judge alone trials during the “COVID-19 emergency period”. It inserted sub-s (3A) into s 68B of the SCA, enabling trial by judge alone at the election of an accused person regardless of whether the offence is an “excluded offence”; previously, “excluded offences” could not be tried by a judge alone. It also added s 68BA, enabling the Court to order trial by a judge alone for all offences even if the accused does not consent.
The Emergency Act provides:
3Reports for Legislative Assembly
(1)For each month that a COVID-19 declaration is in force, the responsible Minister for a COVID-19 measure must prepare a report for the Legislative Assembly on the application of the measure.
(4)In this section:
COVID-19 measure means an amendment mentioned in schedule 1 as passed.
(note omitted)
Schedule 1 refers to the amendments to the SCA.
Trials during the COVID-19 emergency period
Both prior to and since the commencement of the Emergency Act, s 68A of the SCA has provided a qualified requirement for trial by jury. It states:
68ATrial by jury in criminal proceedings
Criminal proceedings shall be tried by a jury, except as otherwise provided by this part.
During the “COVID-19 emergency”, s 68B of the SCA relevantly 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
…
(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) …
(3A) During the COVID-19 emergency period, this section also applies to a criminal proceeding—
(a) that begins before, on or after the commencement day; and
(b) for an excluded offence.
(4) In this section:
COVID-19 emergency period means the period beginning on 16 March 2020 and ending on—
(a) 31 December 2020; or
(b) if another day is prescribed by regulation—the prescribed day.
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.
(5) This subsection, subsection (3A) and subsection (4), definition of COVID-19 emergency period expire 12 months after the day this subsection commences.
The excluded offences in sch 2 of the SCA include serious offences causing death (including murder, manslaughter, and culpable driving of a motor vehicle causing death) and sexual offences (including sexual assault, sexual intercourse without consent, and act of indecency).
During the “COVID-19 emergency period”, s 68BA of the SCA provides:
68BA Trial by judge alone in criminal proceedings—COVID-19 emergency period
(1) This section applies to a criminal proceeding against an accused person for an offence against a territory law if the trial is to be conducted, in whole or in part, during the COVID-19 emergency period.
(2) To remove any doubt, this section applies—
(a) to a criminal proceeding—
(i) that begins before, on or after the commencement day; and
(ii) for an excluded offence within the meaning of section 68B (4); and
(b) whether or not an election has been made by the accused person under section 68B, including before the commencement day.
(3) The court may order that the proceeding will be tried by judge alone if satisfied the order—
(a) will ensure the orderly and expeditious discharge of the business of the court; and
(b) is otherwise in the interests of justice.
(4) Before making an order under subsection (3), the court must—
(a) give the parties to the proceeding written notice of the proposed order; and
(b) in the notice, invite the parties to make submissions about the proposed order within 7 days after receiving the notice.
(5) In this section:
commencement day means the day the COVID-19 Emergency Response Act 2020, section 4 commences.
COVID-19 emergency period means the period beginning on 16 March 2020 and ending on—
(a) 31 December 2020; or
(b) if another day is prescribed by regulation—the prescribed day.
(6) This section expires 12 months after the commencement day.
Submissions
The parties conceded that, for public health reasons, the trial cannot proceed before a jury. The accused accepted that a jury trial would probably not be possible until 2021.
Both parties accepted that, if the matter proceeded before a judge alone, it would proceed more expeditiously. That is undoubtedly true; as a judge alone trial the matter would commence no later than September 2020 and may well commence earlier.
Nevertheless, both parties submitted that the trial should await the recommencement of jury trials. The accused is prepared to forego his human right to be tried without unreasonable delay and remain in custody for as long as is necessary. The Crown submitted that a delay until 2021 would be “acceptable” or “tolerable”, even if it meant that the accused was detained in custody awaiting trial by jury for more than two years.
The parties focussed their submissions on s 68BA(3)(b). They submitted that, in deciding whether an order for trial by judge alone was “otherwise in the interests of justice” under s 68BA(3)(b), the Court should consider:
(a)The fact that trial by jury is the preferred mode of trial and the reasons why trial by jury is to be preferred to trial by judge alone.
(b)The subjective attitude of the accused to being tried by a judge alone.
(c)The nature of the charges; whether they are “excluded offences”.
(d)The nature of the legal issues; whether they are particularly suited to determination by a jury, for example because they involve the application of community standards, or whether they are more suited to determination by judge, for example because they are complex.
(e)The nature of the evidentiary issues, including whether witness credibility is critical to the outcome and whether the facts are complex.
(f)Whether a jury may be influenced by hostility or prejudice (such as may be caused by pre-trial publicity) when deciding the facts.
(g)Whether and to what extent any delay may affect the reliability of the evidence.
(h)The extent of likely delay if no order is made, especially as the accused person is in custody.
(i)The prospect of a challenge to the constitutionality or legality of s 68BA on the basis that the provision contravenes the “Kable doctrine”, s 80 of the Constitution, and/or cl 29 of the Magna Carta.
The accused emphasised that, in this case, a judge alone trial should not be ordered because of the general reasons favouring jury trials in most cases, the fact that the offences were “excluded offences”, and the fact that a jury would be better placed than a judge to assess the complainant’s credibility. In addition, the accused submitted that:
(a)“Case management principles do not override the ‘interests of justice’ but, rather, are to be assessed as subject to them”; in deciding whether to make an order, the considerations in sub-s (3)(a) and (b) should be balanced, but greater weight should be given to sub-s (b), which the accused described as the “interests of justice”.
(b)Section 68BA breaches s 80 of the Constitution, which provides a right to trial by jury not only in relation to Commonwealth offences, but also (derivatively) in relation to Territory offences.
(c)Section 68BA breaches the “common law right to trial by jury” enshrined in cl 29 of the Magna Carta (1215) (sic); this was, at least, an aspect of the “interests of justice”.
Some of the arguments that were most strenuously advanced by the parties were seemingly directed at whether the Emergency Act should have been enacted, rather than the meaning of s 68BA, which is a matter of statutory construction.
Principles applicable to statutory interpretation
Legislation Act
It is trite to say that, ordinarily, the legal meaning of legislation will correspond with its grammatical meaning but that, in determining the legal meaning, it may be necessary to consider the textual and purposive contexts of the provision in question: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby, and Hayne JJ at [69] and [78].
Chapter 14 of the Legislation Act 2001 (ACT) (Legislation Act) provides guidance as to the interpretation of legislation in this jurisdiction and is not intended to be a comprehensive statement of the law of interpretation: s 137.
Section 138 of the Legislation Act provides:
138 Meaning of working out the meaning of an Act—pt 14.2
In this part:
working out the meaning of an Act means—
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
Section 139 of the Legislation Act gives pre-eminence to purposive interpretation. It provides:
139Interpretation best achieving Act’s purpose
(1)In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2)This section applies whether or not the Act’s purpose is expressly stated in the Act.
The significance of textual context is codified in s 140 of the Legislation Act, which provides:
140Legislative context
In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.
Sections 141 and 142 of the Legislation Act deal with non-legislative contextual material.
Human Rights Act
Section 30 of the Human Rights Act 2004 (ACT) (HRA) is also relevant to statutory interpretation. It provides:
30Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
Relevant human rights are contained in ss 21 and 22, which provide:
21Fair trial
(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
…
22Rights in criminal proceedings
(1) Everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
(2) Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:
…
(c)to be tried without unreasonable delay;
…
(4) Anyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.
Section 21 of the HRA reflects art 14 of the International Covenant on Civil and Political Rights, signed 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), which describes the right to a fair trial as the right to “a fair and public hearing by a competent, independent and impartial tribunal established by law”. In the human rights context, the right to a fair trial is a right to an adversarial trial in which, in general, there is “equality of arms between the prosecution and defence”: 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) at [31].
It is well-established that the right to a “fair trial” is not a “right to a jury trial”. In R v Fearnside [2009] ACTCA 3; 3 ACTLR 25 (Fearnside), Besanko J (with whom the other members of the bench agreed) decided that the right to elect for trial by judge alone was not any aspect of the right to a fair trial under s 21 of the HRA: at [101] . In R v Girvan [2012] ACTSC 142 (Girvan), Refshauge ACJ accepted that the right to elect for trial by judge alone was not a human right, although it was a statutory right in relation to which s 84 of the Legislation Act applied (that provision concerns the impact of statutory amendments on pre-existing statutory rights): at [37].
Justice means “a fair trial according to law”; trial by jury is a means of fulfilling that end: Alqudsi v The Queen [2016] HCA 24; 258 CLR 203 (Alqusdi) per French CJ (in dissent) at [2]. Notably, his Honour went on to say:
In some cases, however, justice may be better served by a trial before a judge alone than by a trial before a judge and jury. That reality is recognised in the laws of Australian States and Territories, which allow courts to try some offences by judge alone which would ordinarily be tried by judge and jury.
Although there is no suggestion that the amendments effected by the Emergency Act have derogated from the right to a fair trial, it is interesting to note that art 4 of the ICCPR allows for the derogation of certain obligations, including the right to a fair trial during a “public emergency which threatens the life of the nation and the existence of which is officially proclaimed”.
The right under s 22(2)(c) of the HRA to be tried without unreasonable delay attaches to the accused person as an individual (see s 6 of the HRA) and may be waived by them. In this case, the accused indicated that he waived the right and was unconcerned about remaining in custody while he awaited reinstatement of trial by jury.
However, that does not dispose of the issue. There is a broader public interest in matters proceeding expeditiously, particularly when they are criminal matters, and more so when they involve serious allegations of criminality: see [85]–[92] below.
A contemporary perspective on the benefits of trial by jury
As the parties focused great attention on the benefits of trial by jury, it is worth reflecting briefly on them.
Trial by jury has the obvious and time-honoured benefit that, in serious cases, guilt is determined by a representative body of ordinary and anonymous citizens, protecting the courts from controversy and securing community support for, and trust in, the administration of criminal justice: Deane J in Brown v The Queen (1986) 160 CLR 171 (Brown) at 201–202; Alqudsi per Kiefel, Bell and Keane JJ at [116]–[117]. Trial by jury provides democratic legitimacy to the administration of criminal law: Alqudsi per Gageler J at [131], citing Lord Devlin, Trial by Jury (Stevens, 3rd ed, 1966) at 164. It gives both the substance and appearance of an impartial and just outcome, such that a jury’s verdict is more likely to gain community acceptance: Alqudsi per Gageler J at [135].
On the other hand, some of the asserted benefits of trial by jury are, upon closer examination, of little substance in today’s world. The accused asserted some such benefits.
The accused submitted that juries are superior to judges when it comes to accepting that accused persons may behave in an illogical and unreasonable fashion, and in assessing credibility.
These observations may have been pertinent in the past, when judges were selected from a very limited social group and, once appointed, they avoided engagement with the community. They are not apposite today. Judges who practise in crime and common law gain a deep understanding of the range of unusual and irrational human behaviour and the impact of social deprivation, intergenerational trauma, drugs and alcohol, mental illness and cognitive impairment on behaviour. Among other contexts, almost every sentencing exercise requires judges to engage with such issues.
I do not accept that laypersons are better at assessing credibility than judges. The assessment of credibility is the daily chore of judges. Trial judges are educated in the assessment of credibility and appreciate the difficulty of the task. In R v Coleman [2020] ACTSC 97 (Coleman), Elkaim J also disputed the proposition that credibility issues were necessarily better suited to a jury, observing at [35]:
Almost every case involves the tribunal of fact making a decision on one or more issues of credit. Judges in civil cases frequently decide questions of credit.
The accused submitted that a jury is in a better position than a judge to assess community standards, e.g. whether behaviour is “dishonest” or “indecent” by ordinary community standards. However, in many cases where a question of dishonesty, indecency or the like arises, there is no real question about community standards; if the behaviour occurred, then it breached community standards. In such cases, the real question is whether the behaviour occurred. Other cases will require a more nuanced evaluation, and in such cases a jury may well be better placed than a judge to understand and apply the community’s standards.
It was submitted that a jury trial has the benefit to the accused that the jury may reason to a “just” or “merciful” acquittal rather than rigorously applying legal principle. In R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 (Belghar) at [114], McClellan CJ at CL questioned whether a jury’s “right” to return a perverse verdict was compatible with contemporary notions of justice. In my view it is not; it is antithetical to the proper administration of justice.
The real and relative benefits of trial by jury and trial by judge alone were cogently summarised by Gleeson CJ in “Juries and Public Confidence in the Courts” (2007) 90 Australian Law Reform Commission Reform Journal 12, when his Honour said (at 13):
Jury verdicts are given without reasons. The acceptability of the outcome is based on trust in the combined wisdom of a group of citizens, chosen at random, directed by a judge as to their legal obligations, and applying common sense and community standards to the resolution of issues of fact. It is hard to appeal against a jury verdict. The system has the advantage of finality, and the related disadvantage of inscrutablity. In the case of a trial by judge alone, the judge must give reasons. The acceptability of the decision is based on the cogency of the reasons of a professional decision-maker. It is easier to appeal against a reasoned decision. It is easier to identify error.
Other cases and commentaries to a similar effect were discussed by Elkaim J in R v UD (No 2) [2020] ACTSC 90 (UD (No 2)) at [34]–[40].
Generally, throughout Australia, it is accepted that citizens should be involved in the criminal justice process and trial by jury is the norm.
History of trial by judge alone in the Territory
Section 80 of the Constitution entrenches trial by jury where Commonwealth offences are tried on indictment: Brown, followed in Alqudsi. In this sense, s 80 confers a constitutional “right”.
However, trial by judge alone has become a common and well-accepted feature of the State and Territory justice systems, perhaps nowhere more so than in this jurisdiction.
Under s 14 of the Seat of Government Supreme Court Act 1933 (Cth) as enacted, trial was to be by judge alone, unless the Court otherwise ordered on the basis that it appeared to be “just” to do so.
Following self-government, an identical provision became s 22 of the SCA (later amended by Supreme Court Amendment Act 1933 (ACT) (repealed)). It provided:
22Trial without jury
(1) In every suit in the Supreme Court, unless the Court or the Judge otherwise orders, the trial shall be by the Court without a jury.
(2) The Supreme Court or the Judge may, if it appears just, order specially that any action or any issue of fact in any suit shall be tried before the Court with a jury.
…
Despite the terms of s 22, most trials were conducted before juries.
In 1993, ss 68A and 68B were inserted into the SCA, creating a default position of trial by jury with an option of trial by judge alone where the accused consented to that course. It was envisaged that an accused person may prefer a judge alone trial in some circumstances, particularly where it would avoid prejudice associated with extensive pre-trial publicity or where the case involved a large amount of technical evidence that may present difficulties for jurors: Australian Capital Territory, Parliamentary Debates, ACT Legislative Assembly, 17 June 1993, 2216 (Terry Connolly MLA, Attorney-General).
In 2011, the Criminal Proceedings Legislation Amendment Act2011 (ACT) (repealed) introduced amendments to s 68B(4) whereby, for “excluded offences”, an accused person could not consent to trial by judge alone and the trial must proceed before a jury.
In the presentation speech, the Attorney-General referred to a concern that “judge-alone trials were becoming the norm when the intention of the legislation was that they were to deal with exceptional cases” (Australian Capital Territory, Parliamentary Debates, ACT Legislative Assembly, 17 February 2011, 255 (Simon Corbell MLA Attorney-General)). He referred to a study of the period 2004 to 2008 which showed that 56 per cent of accused persons had elected for a judge alone trial. In relation to murder and sexual offence charges, in judge alone trials the conviction rate had been extremely low (zero and 9 per cent respectively) compared to 47 per cent for all other judge alone trials during the period: at 256. The Attorney-General observed that the new category of “excluded offences” referred to the most serious allegations that could be made against a person and were the types of cases that required “findings of fact to be made involving the application and assessment of community standards”: at 257. For these reasons, they were best suited to jury determination. He said that the reforms were “necessary to ensure the integrity of our criminal justice system”: at 257. The clear subtext was that judges seemed to be reluctant to convict accused persons of certain serious offences.
At the time, this change was controversial. For example, Higgins CJ suggested that the amendment created a “real risk” of offending the right to a fair trial enshrined in s 21 of the HRA as the independence and impartiality of juries could be affected by pre-trial publicity, community prejudice, or the complexity of legal issues: Chief Justice Higgins, “Reform to Judge-Alone Trials” (8 March 2011) Bar Bulletin: Newsletter of the
Australian Capital Territory Bar Association 5, quoted in Jodie O’Leary, “Inspiring or Undermining Confidence? Amendments to the Right to Judge Alone Trials in the ACT” (2011) 10(3) Canberra Law Review 30.
Since 2011, most trials have proceeded before a jury but, with the consent of the accused, a significant number of trials has been heard by a judge alone.
In summary, ss 68B(3A) and 68BA were introduced into the SCA against the background that, for many decades, trial by judge alone (either with or without the accused’s consent) has been a common feature in this jurisdiction although, of more recent times, it has been mandatory that certain serious offences be tried by a jury.
Purpose of the emergency provisions
The purpose of the amendments effected by the Emergency Act is beyond doubt. The long title of the Emergency Act, the continuing reviews for which it provides, and the scope and duration of the amendments to ss 68B and 68BA make the purpose clear without the need for recourse to the presentation speech.
Pursuant to s 68A of the SCA, jury trials remain the norm. In the current public health emergency, the conduct of jury trials would involve unacceptable public health risks. However, the criminal justice system should continue to operate. Consequently, the amendments allow for judge alone trials in all matters where the accused consents (regardless of the fact that, generally, such matters are thought to be suited only to jury determination) and in all other matters where a judge alone trial will support the orderly and expeditious discharge of the Court’s business and is “otherwise in the interests of justice”.
The emergency provisions enable the effective continuation of the criminal justice system by making the minimal changes that are necessary to ensure its continuation through the period of the public health emergency. The period is limited to 31 December 2020 (unless varied) and cannot be extended beyond 12 months: ss 68B(5) and 68BA(6) of the SCA. Under s 3 of the Emergency Act, the Legislative Assembly monitors the provisions on a monthly basis.
In JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38, the Court of Appeal dismissed an application to adjourn an appeal because the Chief Justice had issued a public notice requiring appeals to be conducted by telephone or video-conferencing during the COVID-19 pandemic. At [8], the Chief Justice observed:
In the extraordinary circumstances presented by the COVID-19 pandemic the arrangements provided for in the public notice of 18 March 2020 are a necessary but proportionate alteration to the normal practice and procedure of the court consistent with the due administration of justice.
The same observations apply to the amendments to ss 68B and 68BA of the SCA; they are a necessary but proportionate alteration to normal practice and procedure consistent with the due administration of justice.
In keeping with the purpose of enabling the effective continuation of the criminal justice system, the first matter to be considered when deciding whether to order a trial by judge alone under s 68BA of the SCA is whether the order will “ensure the orderly and expeditious discharge of the business of the Court”.
“The orderly and expeditious discharge of the business of the Court”
Sections 68B(3A) and 68BA of the SCA assume that the conduct of the Court’s business in an orderly and expeditious manner is “in the interests of justice”. Each provision supports the continuation of the Court’s business in circumstances where jury trials are unavailable because of the “COVID-19 emergency”, but judge alone trials are available.
Despite the perceived public interest in the trial of certain serious charges (trials of “excluded offences”) always proceeding before juries, s 68B(3A) of the SCA accepts that, during the “COVID-19 emergency period”, there is a greater public interest in such matters proceeding rather than awaiting the availability of a jury trial. Section 68BA assumes that, during the “COVID-19 emergency period”, in some cases, the interests of justice will be best served if the trial proceeds before a judge alone, regardless of whether the accused consents to that course.
The orderly and expeditious discharge of the business of the Court requires that cases be determined as quickly as possible, thereby ensuring that individual matters are resolved quickly and there is no unnecessary delay in the resolution of the matters that sit behind them.
The orderly and expeditious discharge of the business of the Court serves the parties. In the criminal context, it means that accused persons are acquitted quickly (and do not experience unnecessary personal suffering or drain community resources by languishing in custody or on bail while they await a trial) or convicted and sentenced promptly. It means that victims and other witnesses can give their evidence and move on with their lives.
More importantly, the orderly and expeditious discharge of the business of the Court is essential to maintaining public confidence in the judicial arm of government and the rule of law. In Coleman at [41], Elkaim J said:
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.
In UD (No 2) at [10], his Honour expressed the interests of justice in the orderly and expeditious discharge of the business of the Court as follows:
The business of the court is wide-ranging but at its core is the timely conclusion of civil and criminal litigation. The latter of course includes the running of trials, both with a jury and without, intended to determine the guilt or otherwise of accused persons. This aspect of court business has widespread ramifications, not only for the accused, but, inter alia, for ensuring public confidence in the judicial system, the needs of victims of crime to see perpetrators of harm against them brought to justice and for the management of the prison system, which has a limited capacity to securely and safely retain people in custody.
His Honour pointed out that the courts must be seen to be continuing to hear criminal cases to ensure public confidence in the justice system and as a deterrent to potential criminals: at [64].
In relation to the expedition with which serious criminal charges are heard, contrary to the submission of the Crown, there is no period of “acceptable” or “tolerable” delay, but only a period of necessary delay, being the period that is necessary to enable preparation and ensure that it is a fair trial.
In Capic v Ford Motor Company of Australia Ltd [2020] FCA 486, Perram J refused to adjourn the hearing of a six-week civil matter involving the cross-examination of witnesses and many documents which had been sought because of difficulties associated with conducting the proceedings remotely during the COVID-19 pandemic, saying at [25]:
Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try.
There is a greater imperative in the case of criminal trials. In UD (No 2) at [54], Elkaim J said:
A criminal justice system must continue notwithstanding that other areas of society have come to a standstill.
At [29]–[30], his Honour pointed out:
29 … Each and every aspect of daily life is now dictated by the emergency. This means that the emergency enables the imposition of laws and regulations previously not contemplated.
30. If it is in the interests of justice that criminal trial should continue then they must continue within the constraints imposed by the public health emergency. If the only means of achieving this end is through judge alone trials, then, subject to unique factors in individual cases, judge alone trials should be ordered. …
During an emergency, be it a public health emergency or another sort of emergency, short-term legislation may restrict personal freedom and confer unusually broad powers on administrators. In such times, it is even more important than usual that the courts continue to operate effectively, independently and impartially, and be seen to do so.
It is accepted that, generally, it is preferable that accused persons be tried by a jury. Although a trial by a judge alone will be a fair trial, in a democracy it is preferable that a serious allegation be judged by a body that represents the community. At present that is not possible. Yet the criminal courts must continue to operate. The willingness and capacity of courts to fairly conduct criminal trials is the lodestar by which the effectiveness of the criminal justice system will be seen and judged. It is critical to the maintenance of public confidence in the administration of justice.
While, in general, “the interests of justice” dictate that serious criminal matters should be tried in an orderly and expeditious manner (if necessary, before a judge alone), in any individual case, there may be other considerations indicating that such a course is not “otherwise in the interests of justice”.
Cases concerning “in the interests of justice”
The expression “the interests of justice” is broad and derives substance from the context in which it is used. Invariably, it involves matters other than the interests of the parties and includes larger questions of legal principle, public interest, and policy: BHP Billiton Ltd v Shultz [2004] HCA 61; 221 CLR 400 (BHP Billiton), Landsman v The Queen [2014] NSWCCA 328; 88 NSWLR 534 at [69] per Beazley P, Hidden and Fullerton JJ agreeing.
Limited assistance can be gained from the way in which the expression has been construed in other cases, as each decision relates to a particular statutory context. However, the following cases provide some assistance.
In BHP Billiton, the Court considered cross-vesting legislation that was designed to ensure that cases were heard in the forum dictated by “the interests of justice”. A plaintiff had made a claim in NSW and resisted an application that it be transferred. At [15], Gleeson CJ, McHugh and Heydon JJ pointed out that:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties … will arise for consideration. …
At [23]–[29], their Honours held that the primary judge had erred in that his Honour had proceeded on the basis that the plaintiff’s choice of forum “ought not lightly to be overridden” and was advantageous to the plaintiff.
In The State of Western Australia v Rayney [2011] WASC 326, the accused had applied for a murder charge to be tried by a judge alone. The Court had to consider whether such an order was “in the interests of justice”. The Court (Commissioner Sleight) agreed that weight should be given to the subjective views of the accused but also that those wishes were not necessarily determinative. Other factors that may be relevant were the availability of reasons in a judge alone trial, whether pre-trial publicity had created a “public climate of hostility or prejudice” (quoting Heenan J in The State of Western Australia vMartinez [2006] WASC 25; 159 A Crim R 380 at [33]), the likely length and complexity of the trial, and whether the case turned on circumstantial evidence. Having regard to pre-trial publicity and the desirability that there be reasons for the decision, the Court ordered trial by a judge alone.
In Belghar, the primary judge had granted the accused’s application for a trial by judge alone. Like s 68A of the SCA, s 131 of the Criminal Procedure Act 1986 (NSW) (CPA) provided that criminal proceedings “are to be tried by jury, except as otherwise provided …”. Under s 132 of the CPA, where an accused person requested trial by judge alone and the prosecutor did not agree, the court could make an order if it considered that it was “in the interests of justice to do so”.
McClellan CJ at CL held that s 132 inferred no “presumption” of trial by jury, although the accused bore an evidentiary onus. His Honour opined that the fact that an accused person desired a trial by judge alone, although relevant, was not as significant as the reasons for that preference, whether they were rationally justified and what they said about a fair trial: at [101]. Hidden and Hislop JJ preferred to express no general views about when a trial should proceed before a judge alone.
In RKF v The Queen [2016] NSWCCA 116 at [39], Bathurst CJ (with whom Hall and RA Hulme JJ agreed) referred with apparent approval to the statements by McClellan CJ at CL in Belghar that there was no presumption in favour of a jury trial and that the views of the accused about dispensing with a jury trial were a relevant factor.
These cases establish that, under the provisions that were considered, while the accused’s preference for a judge alone trial is relevant, it is not determinative and may not even be a weighty consideration if it is not supported by material justifying the preference.
Undoubtedly, in criminal contexts such as the present, the “interests of the accused” (as opposed to the preference of the accused) is an important aspect of the “interests of justice”, but the expressions are far from coterminous: TVM v The State of Western Australia [2007] WASC 299; 180 A Crim R 183 per McKechnie J at [31].
Of course, unlike the present case, in the above cases concerning whether there should be a trial by judge alone, the accused had expressed a desire for trial by judge alone although a jury trial was available and was the norm. Consequently, the cases have only limited relevance to the present matter, in relation to which there is no current availability of jury trials.
“Otherwise in the interests of justice” in s 68BA of the SCA
Under s 68BA(3), before exercising its discretion to make an order for trial by judge alone, the Court must be satisfied of two matters: that such an order “will ensure the orderly and expeditious discharge of the business of the court”; and that such an order is “otherwise in the interests of justice”.
Contrary to the submission made by the accused, these are not competing considerations that must be “balanced”; rather, s 68BA acknowledges the obvious proposition that the orderly and expeditious discharge of the Court’s business during the COVID-19 emergency (or any period) serves “the interests of justice”. The s 68BA(3)(b) expression “otherwise in the interests of justice” directs attention to matters other than the expeditious conduct of the Court’s business that serve or detract from “the interests of justice”.
As noted above, the expression “interests of justice” is broad and derives substance from the context in which it is used. The Legislation Act requires a purposive interpretation of the expression “otherwise in the interests of justice”. This means that, while the matters that ordinarily inform what is “otherwise in the interests of justice” may remain generally the same, having regard to the primary purpose of the emergency provisions, they may acquire a different weight and emphasis.
It was submitted that significant weight should attach to the accused’s attitude to a trial by judge alone. In UD (No 2), Elkaim J described the accused’s lack of the consent to a judge alone trial as a “powerful reason” why such a trial should not be ordered: at [53]. With respect to his Honour, I disagree.
Section 68B (as amended for the emergency period) means that no s 68BA question will arise where an accused person consents to trial by judge alone. Section 68BA is designed to deal with the circumstance that an accused person does not consent to trial by judge alone; the opposition of the accused to the order is assumed. Consequently, while regard may be had to the fact that the accused does not consent to trial by a judge alone, much more weight should be attached to whether there are good reasons for the accused’s attitude.
There are likely to be few cases in which there are good reasons for an accused person opposing trial by judge alone where, absent a trial by judge alone, the accused will languish in prison for an indefinite period although they may ultimately be acquitted and released.
It was submitted that the Court should be disinclined to order a trial by judge alone where the charges relate to “excluded offences” which, absent the extraordinary current circumstances, would necessarily be tried before a jury. I do not accept this submission. The emergency provisions amending s 68B of the SCA to permit an accused to consent to the trial of excluded offences by a judge alone during the emergency period establishes that the legislative intent was that, during this period, the public interest in having such matters proceed would override the public interest in having them determined by a jury. The reason that “excluded offences” have been identified as requiring jury determination are also reasons favouring their prompt trial, if necessary by a judge alone. There is a strong community interest in the finalisation of serious matters that relate to “excluded offences”.
Relevance of the Magna Carta to the “interests of justice”
The accused submitted that, regardless of the merits of an argument that s 68BA breaches a “common law right to trial by jury” that is enshrined in cl 29 of the Magna Carta (1215) (sic) (the determination of which has been deferred), the terms of the Magna Carta are, at least, an aspect of the “interests of justice”.
The Magna Carta cl 29 is noted in sch 1 to the Legislation Act as a former NSW or UK Act in force before the establishment of the Territory. It was in force in NSW immediately before 1 January 1911 (the date when the ACT was established) and was continued in force by s 6 of the Seat of Government Acceptance Act 1909 (Cth), and converted into an ACT enactment on 11 May 1989 (self-government day), becoming, for all purposes, a law made by the ACT Legislative Assembly: s 65 of the Interpretation Act 1967 (ACT) (as at 1 March 2000) (repealed).
Clause 29 (the entire substance of the relevant Magna Carta) contains a seminal statement concerning the rule of law:
29Imprisonment etc contrary to law
No freeman shall be taken or imprisoned, or disseised of his freehold, liberties or free customs, or be outlawed or exiled or in any other wise destroyed; nor will We pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land.
We will sell to no man, and we will not deny or defer to any man, either justice or right.
…
Section 17(2) of the Legislation Act provides:
17References to Acts include references to former Cwlth enactments etc
(2) Without limiting subsection (1), a reference to an Act includes a reference to a former NSW Act or former UK Act mentioned in schedule 1.
This means that the Magna Carta is to be interpreted in accordance with the Legislation Act: s 4 Legislation Act. For example, in accordance with s 145 of the Legislation Act, the cl 29 reference to the male gender should be read as a reference to every other gender.
It is to be observed that cl 29 refers to condemnation “by lawful judgment of (an accused person’s) peers” or “by the law of the land”. It also states that justice must not be “deferred”.
Clause 29 of the Magna Carta is revered as an ancient statement of the importance of the rule of law and the need for justice to be administered promptly. Seen in this way, it is entirely consistent with the emergency provisions enabling a greater scope for trial by judge alone when that is the only way in which justice can be delivered promptly.
However, the Magna Carta does not raise any matter that does not otherwise fall to be considered as a matter affecting the “interests of justice”.
Considerations relevant to “otherwise in the interests of justice” in this case
Considerations telling against the making of an order are:
(a)The accused opposes trial by judge alone. No particular reasons were advanced, other than a strong preference for a jury trial. Consequently, I have regard to the opposition but, of itself, it is not a matter to which I accord great weight.
(b)Any delay will have a negligible impact on the quality of the evidence at a retrial. The evidence of the complainant was recorded and will not be affected by any delay. As the incident occurred three and a half years ago, delay will affect the recollection of witnesses but, regardless of the delay, their memories will already have been significantly impacted by the long delay since the incident and the first trial.
(c)There is no difficulty associated with pre-trial publicity or any other matter that may prejudice a jury.
Considerations favouring the making of an order are:
(a)The incident occurred in October 2016 and, because of the age of the incident, it is in the interests of the parties, the witnesses, and the community that the matter be resolved without further delay.
(b)From an objective perspective, it is in the interests of the accused that the trial proceed promptly. He has been in custody in relation to this matter since July 2019, more than nine months, at significant cost to himself and the community. If the trial is adjourned for an indefinite period, only to be heard after jury trials resume, the prospect of the accused being granted bail is bleak, given that he absconded during the last trial. Continued imprisonment will cause further hardship to the accused and further expense to the community.
(c)The allegations are serious. It is especially important that such serious allegations be dealt with promptly. The community has a strong interest in finalising the trial of serious matters, including “excluded offences”. Persons charged with serious offences should be acquitted promptly or convicted and sentenced appropriately, thereby fulfilling community expectations in relation to punishment, general deterrence, and the recognition of harm to victims and the broader community.
(d)The cross-examination of the complainant shows that, in relation to the alleged acts of indecency, there is no real question concerning community standards. Rather, the issue is whether the acts occurred at all.
(e)The central issue in the trial will be whether, as to critical events, the complainant’s evidence should be accepted beyond reasonable doubt. A judge is well-qualified to consider and decide this matter.
The considerations favouring the making of an order are far more cogent than those that tell against the making of an order.
Subject to the resolution of the outstanding issues, pursuant to s 68BA(3) of the SCA, I will order that the trial proceed before a judge alone.
| I certify that the preceding one hundred and twenty-three [123] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
**************
Amendments
25 May 2021 Replace “R v IB (No 3)” with “R v Ali (No 3)” Title
Replace “IB” with “Haider Ali” Headnote
6
17
16