R v Booth; R v Fisher
[2020] ACTSC 204
•27 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Booth; R v Fisher |
Citation: | [2020] ACTSC 204 |
Hearing Date: | 27 July 2020 |
DecisionDate: | 27 July 2020 |
Before: | Elkaim J |
Decision: | The s 68BA(3) notice is revoked and a jury trial is confirmed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury and Judge Alone Trials – Emergency legislation – court ordered judge alone trial – absence of consent by the parties – interests of justice – fair trial |
Legislation Cited: | COVID-19 Emergency Response Act 2020 (ACT) |
Parties: | The Queen (Crown) Sharniesha Booth (Co-accused) Bonnie Booth (Co-accused) Richard Desmond Charles Booth (Co-accused) Deanne Booth (Co-accused) Melanie Booth (Co-accused) Tiam Fisher (Co-accused) |
Representation: | Counsel T Hickey (Crown) A Doig (Sharniesha Booth) K Musgrove (Bonnie Booth) J De Bruin (Richard Booth) B Shelton (Deanne Booth) B Morrisroe (Melanie Booth) No appearance (Tiam Fisher) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Sharniesha Booth) McKenna Taylor (Bonnie Booth) Legal Aid ACT (Richard Booth) Sharman Robertson (Deanne Booth) Baker, Deane & Nutt (Melanie Booth) | |
File Numbers: | SCC 269 of 2019; SCC 268 of 2019; SCC 203 of 2019; |
ELKAIM J:
The COVID-19 Emergency Response Act 2020 (ACT) introduced amendments to the Supreme Court Act 1993 (ACT) to allow (by way of s 68BA) a judge to give an indication that a trial ought to proceed by way of judge alone, notwithstanding the desire of an accused person to have a jury trial. The procedure involved was a notification by the Court to the accused that it intended to order a judge alone trial and inviting the parties to make submissions to the contrary if they so desired.
In the matters before me today, the notification by the Court for a judge alone trial was made on 8 May 2020. The matter was listed today after some intermediate mentions for the purpose of deciding whether or not the order should be made.
Since 8 May 2020, two things of significance have occurred. Firstly, s 68BA has been repealed. However the transitional provisions in Part 12 of the Supreme Court Act keep in place the possibility of making an order against the parties’ wishes for a judge alone trial.
Section 68BA of the Supreme Court Act previously read as follows:
68BATrial 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.
Secondly, judge alone trials have resumed in the ACT, though few have actually taken place. I understand however that in the next criminal sittings there are a number of trials to proceed with a jury.
All of the parties in this matter, with the exception of Mr Fisher who is not here today, have indicated that they wish to be tried by jury. The parties all appreciate that their trials are unlikely to be heard this year, so that there will be some significant delay. Notwithstanding their desire to be acquitted and for justice to be done, they do not wish to have their trials heard as soon as possible, which is what would happen if they elected a judge alone trial.
I am not going to order a judge alone trial in these matters because if I were to do so, it would be against the wishes of all of the parties, including the Crown. Further it would be against the background of the legislature having decided that the section should be repealed. I think it would be wrong to ignore the wishes of all parties concerned.
Accordingly, the order of the Court is that the notice under s 68BA(3) dated 8 May 2020 proposing a judge alone trial is revoked. The matter is listed for callover on 17 August 2020 for allocation of a hearing date before a judge and jury.
| I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 3 August 2020 |
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