R v Fearnside

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.