R v Da

[2008] ACTSC 26

HUMAN RIGHTS ACT

R v DA
[2008] ACTSC 26 (31 March 2008)

Ex Tempore Judgment

No. SCC 200 of 2007

Judge:              Higgins CJ
Supreme Court of the ACT

Date:               31 March 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCC 200 of 2007
AUSTRALIAN CAPITAL TERRITORY    )          

R

v

DA

ORDER

Judge:  Higgins CJ
Date:  31 March 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The application to vacate the trial date is granted.

1. The application before me is an application by Mr Purnell SC on behalf of the accused to vacate the date for hearing which is currently set for Monday, 7 April 2008, proceeding according to the listed time allocated for two weeks, or nearly two weeks anyway.  Having regard to the case statement that does seem to be a surprising length of time to take over what seems to be a relatively simple matter.  However, that of course depends on what relevant evidence is required to be adduced, as opposed to what may be available. 

1. Mr Purnell SC points to a number of things in relation to the trial which might support an application to vacate the hearing date for the purpose, as he frankly puts it, of engaging s 68B of the Supreme Court Act 1933 (ACT). One of those is the fact, I suppose, that this is a matter in which some of the evidence to be relied upon, whether admissible or not, would be, one could say, distressing, shocking and, as a result, if it got to the jury Mr Purnell SC would suggest that it would unfairly prejudice the objective assessment of the case, not putting that too highly or incorrectly.

1. Of course, as Mr Buchanan SC points out in response, there are ways of ensuring that the jury is not prejudiced unfairly by such evidence.  First of all, that evidence might be permitted only to be given in a modified form.  It might be excluded as being irrelevant to the proper purpose of proving the charge against the accused.  The jury might be warned about inappropriately using evidence that might be presented, and invited to ignore any untoward emotional reactions.  All of those things are, of course, open. 

1. Mr Purnell SC submits that there is a discretion, effectively, to vacate the hearing date and places it fairly and squarely on the right of the accused to exercise the election conferred by statute under s 68B of the Supreme Court Act 1933.  That raises a number of issues.  It raises an issue about what is the nature of that right and how it should be approached.  As I said to Mr Buchanan SC, and there is a record in the case of R v W (SCC 117 / 00), it had been my view that the term “date first allocated” fixed that date in respect of that indictment, so that once a date was fixed for the trial of that indictment then the accused had no further right of election.  I…