R v Fearnside

Case [2009] ACTCA 3

HUMAN RIGHTS ACT 2004 (ACT)

R v DAVID ARTHUR FEARNSIDE
[2009] ACTCA 3 (24 February 2009)

PRACTICE AND PROCEDURE – right to elect for trial by judge alone – election must be made before court first allocates date for person’s trial – whether order vacating trial date has effect of reviving or reactivating right where right not exercised prior to allocation

Held: order vacating trial date does not have effect of reviving or reactivating right to elect.

STATUTORY INTERPRETATION – purposive approach under ACT legislation – purposes of section conferring right to elect for trial by judge alone – relevance of human rights legislation – observations on application of interpretative principle under human rights legislation

Held: no purpose revealed which was inconsistent with, or modified clear meaning of words used – no human right in issue, as right to elect not part of right to fair trial.

Acts Interpretation Act 1901 (Cth) s 15AA
Constitution, s 80
Court Procedures Rules 2006 (ACT), r 2900
Criminal Procedure Act 1986 (NSW), s 32(4)
Crimes Act 1900 (ACT) s 28
European Convention on Human Rights
Evidence Act 1995 (Cth), s 137
Human Rights Act 2004 (ACT) ss 6, 7, 21, 28, 32(2), 34
Human Rights Amendment Act 2008 (ACT) Pt 5A, ss 28, 30
Human Rights Act 1998 (UK) s 3(1)
Juries Act 1967 (ACT)
Legislation Act 2001 (ACT) ss 138, 139, 141, 142
New Zealand Bill of Rights Act 1990 (NZ) ss 5, 6
Supreme Court Act 1933 (ACT) ss 2, 37E(2)(a), 37E(4), 37O, 68A, 68B, Pt 7
Supreme Court (Amendment) Act 1993 (ACT)
Supreme Court (Amendment) Bill 1993 (ACT), Explanatory Memorandum

Carr v Western Australia (2007) 232 CLR 138
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249

Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297

Dietrich v The Queen (1992) 177 CLR 292
Ghaidan v Godin-Mendoza [2004] 2 AC 557

Holm v Sweden, 25 November 1993, Series A No 279-A (European Court of Human Rights)

Kingsley’s Chicken Pty Ltd v Queensland Investment Corp [2006] ACTCA 9
Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126
The Queen v Lethlean (1995) 83 A Crim R 197
Mills v Meeking (1990) 169 CLR 214
Moonen v Film and Literature Board of Review (No 1) [2000] 2 NZLR 9
Moonen v Film and Literature Board of Review (No 2) [2000] 2 NZLR 754
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Pullar v United Kingdom, 10 June 1996, Reports 1996-III (European Court of Human Rights)
R v Bozatsis (1997) 97 A Crim R 296
R v Coles (1993) 31 NSWLR 550
R v Hansen [2007] 3 NZLR 1
R v Mifsud (unreported, Supreme Court of New South Wales Court of Criminal Appeal, Gleeson CJ, Levine and Dowd JJ, 8 November 1995)
R v Oakes [1986] 1 SCR 103
R v Perry (1993) 29 NSWLR 589
R v Sharpe [2001] SCR 45
R v Swaffield

Continue reading R v Fearnside

Sign in free to access the full text

Details
AGLC
R v Fearnside [2009] ACTCA 3
Case
[2009] ACTCA 3
Decision Date

CaseChat Overview and Summary

The parties in this matter were the Crown and the respondent, Fearnside. The dispute concerned the validity of the respondent's election for trial by judge alone. The case was heard by the Full Court of the Supreme Court of the Australian Capital Territory.

The central legal issue before the Court was whether an order vacating a trial date had the effect of reviving or reactivating a defendant's right to elect for trial by judge alone, where that right had not been exercised prior to the initial allocation of the trial date. A secondary issue involved the application of the purposive approach to statutory interpretation under ACT legislation, including the relevance of human rights legislation, in determining the purpose of the section conferring the right to elect for trial by judge alone.

The Court reasoned that the right to elect for trial by judge alone, as conferred by section 68B of the *Supreme Court Act 1933* (ACT), must be exercised before the court first allocates a date for the trial. An order vacating a trial date does not revive or reactivate this right if it was not exercised prior to the initial allocation. The Court found no purpose revealed by a purposive interpretation of the legislation that was inconsistent with, or modified, the clear meaning of the words used. Furthermore, the Court observed that the right to elect for trial by judge alone is not a human right, and therefore, human rights legislation was not relevant to the interpretation of section 68B in this context.

The Court allowed the appeal, set aside the second order made by Higgins CJ, and declared that the respondent's purported written elections for trial by judge alone were not valid and effective.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The application for leave to appeal from the orders made by Higgins CJ on 31 March 2008 be granted.

2. The appeal from the said orders be allowed.

3. The second order made by Higgins CJ on 31 March 2008 be set aside.

AND THE COURT DECLARES 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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.