R v Gavare
[2011] SASCFC 38
•29 April 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Case Stated)
R v GAVARE
[2011] SASCFC 38
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Sulan)
29 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
Four questions reserved for consideration and determination by the Full Court pursuant to section 350(2) of the Criminal Law Consolidation Act 1935 (SA) - where questions relate to the exercise of the discretion conferred by the Juries Rules 1996 (SA) to extend time in which a person can elect to be tried by judge alone pursuant to the Juries Act 1927 (SA) - whether Judge was correct in concluding that special reasons did not exist to extend time in which to elect, and in concluding that it would not be unjust to not extend time - whether Judge correctly refused the application to extend time - whether Judge correctly decided that rules 8(5) and 8(7) of the Juries Rules were not ultra vires the rule making power conferred by the Act.
Consideration of the legislative history of the relevant provisions and rules - discussion regarding delegated rule making power, and the demarcation between procedural rules and substantive law.
Held: Circumstances relevant to a decision to elect occurring after the time for election had expired, provides a basis upon which a refusal to grant an application to extend time would be unjust – the impugned rules are not ultra vires the rule making power conferred by the Act.
Criminal Law Consolidation Act 1935 (SA) s 350(2); Juries Rules 1996 (SA) r 8, r 16 and r 17; Juries Act 1927 (SA) s 7 and s 89; Acts Interpretation Act 1915 (SA) s 22(1); Juries Act Amendment Bill 1984 (SA), referred to.
McGee and McGee (2008) 102 SASR 318; R v Ferguson; Ex Parte Attorney-General (Qld) (2008) 186 A Crim R 483; R v Haydon (2000) 76 SASR 265; R v Garrett (1988) 50 SASR 392; Minister for Employment and Workplace Relations v Gribbles Radiology Pty ltd (2005) 222 CLR 194; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Shanahan v Scott (1957) 96 CLR 245; Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629; Melbourne Corporation v Barry (1922) 31 CLR 174; Swan Hill Corporation v Bradbury (1937) 56 CLR 746; Herald and Weekly Times Ltd v Victorian Civil and Administrative Tribunal (2005) 11 VR 422; South Australia v Tanner (1989) 166 CLR 161; Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; Williams v Melbourne Corporation (1933) 49 CLR 142; Taylor v Guttilla (1992) 59 SASR 361; Western v Male (2010) 107 SASR 285; R v Forbes; Ex Parte Bevan (1972) 127 CLR 1; Cocker v Tempest (1841) 151 ER 864; White v South Australia (2007) 96 SASR 581; Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238; Boscolo v The Secretary, Department of Social Security (1999) 90 FCR 531; Goldsmith v Newman (1992) 59 SASR 404, considered.
R v GAVARE
[2011] SASCFC 38Full Court: Duggan, Gray and Sulan JJ
DUGGAN J: I agree with the answers proposed by Gray J to the questions reserved for consideration and determination by this Court.
I also agree with the reasons prepared by Gray J.
GRAY J:
Introduction
Pursuant to section 350 of the Criminal Law Consolidation Act 1935 (SA), a Judge of this Court has reserved four questions for consideration and determination by the Full Court.
The questions reserved relate to the exercise of a discretion conferred by the Juries Rules 1996 (SA), and a determination as to the validity of rules 8(5) and 8(7) of those Rules. The Rules are made pursuant to the Juries Act 1927 (SA). The questions arise in the context of an application by Angelika Gavare, the defendant, for an extension of time in which to elect to be tried by judge alone.
It is convenient to set out the terms of the questions referred at the outset:
Was I correct in finding that the material before me did not justify the conclusion that there were special reasons for dispensing with the requirements of rule 16 of Juries Rules 1996 (SA) …
Was I correct in finding that there were no special reasons for extending the period of time prescribed in rule 17 of the Juries Rules or in refusing to find that it would be unjust not to extend that period of time.
Was I correct in exercising my discretion so as to refuse the application to permit the accused to elect for trial by judge alone.
Was I correct in deciding that rules 8(5) and 8(7) of the Juries Rules were not ultra vires.
Important issues arise from these questions for consideration.
Background
Ms Gavare is charged with the murder of Vonne Isabelle McGlynn at Reynella on 3 December 2008. It is alleged that the victim, an elderly woman, was murdered in her home.
Ms Gavare was arraigned in the Supreme Court on 28 June 2010 and pleaded not guilty. According to the Juries Rules, it is up to this time that an accused has a right to elect to be tried by judge alone. Thereafter whether a trial proceeds by judge alone is subject to the Judge’s discretion to extend the time for an election upon application according to certain procedure, and in particular, where “special reasons” are found to exist or where it would be unjust not to extend time.
On 17 September 2010, the trial was listed to commence on 4 April 2011. On 16 March 2011, an application was filed on Ms Gavare’s behalf purporting to elect to be tried by Judge alone. This application was followed by a further application pursuant to rules 16 and 17 of the Juries Rules for an extension of time in which to make the election, on the basis that special reasons existed for such an extension. The basis of these special reasons was said to be the publication of a number of news articles relating to a spate of alleged murders of elderly women, including Vonne McGlynn, in their homes.
The primary article on which the application relied was headed “Vulnerable and home alone, 87-year-old’s shocking death MURDER IN THE GARDEN”, and was published on 28 January 2011. Following the discovery of this article, further research revealed other articles published in October 2010, relating to similar subjects, including murder and the safety of the elderly in their own homes. This coincided with the deaths of other elderly women in their homes. Ms Gavare’s matter and name were mentioned in two of the articles.
The application was heard on 29 March 2011. The Judge ruled she was confident that a jury properly directed would be true to their oath and give true verdicts according to the evidence on the issues to be tried in the trial. The Judge declined to exercise her discretion to permit Ms Gavare to elect to be tried by judge alone, after the time limit imposed by the Juries Rules.
In reasons for ruling, the Judge accepted that there was no ulterior motive or purpose behind the application being made so late in the proceedings. The Judge considered that the rationale of the cases decided in the context of applications for permanent stays of proceedings arising out of pre-trial publicity,[1] was directly applicable to the issues the subject of her consideration, and observed:
… Moreover, although there has been a degree of media attention in the last six months to the murder of elderly people in their own homes, I do not consider the publicity in respect of this matter to be nearly as extreme or as prejudicial to the accused in this matter as in the three cases to which I have referred. On the contrary while there has been understandable concern within the community about the safety and security of elderly people in their own homes, that is not a matter that has specifically arisen out of or could be sheeted home to the allegations in the current matter.
[1] See McGee and McGee (2008) 102 SASR 318; R v Ferguson; Ex Parte Attorney-General (Qld) (2008) 186 A Crim R 483.
Ms Gavare applied to have the following questions reserved for the consideration of the Full Court:
Is the capacity of the Learned Trial Judge to direct a jury as discussed in McGee and McGee … R v Ferguson …, a relevant factor in refusing to exercise the discretion to permit the accused to elect for trial by Judge alone?
Is the decision of the Learned Trial Judge to decline in the exercise of her discretion to permit the accused to elect for trial by Judge alone, in the circumstances, correct?
On the hearing of the application it became apparent that Ms Gavare’s argument, as advanced in the Full Court, had not been put to the trial Judge. Counsel argued that the relevant “special reasons” was the late awareness of a relevant fact; namely, the impugned publicity, which did not arise until well after the first arraignment. It was asserted that had Ms Gavare been earlier aware of that fact, an election as of right would have been made within time. It was contended that once special reasons were found to exist, then the relevant discretion was enlivened. It was further contended that in the ordinary course, having regard to the unfettered right conferred by Parliament that a defendant elect to be tried by judge alone, the discretion ought to be exercised in Ms Gavare’s favour unless some countervailing factor, such as “judge shopping” or delay, militated against the exercise of the discretion in the circumstances of the case.
On that occasion before the Full Court, it was agreed by the parties, that a further, fresh application would be made before the trial Judge for the relevant extension of time, in order for the argument set out immediately above to be put to her Honour. When that application came again before the Judge, the Director did not oppose the application. The Judge refused the application. I address the Judge’s reasons for ruling shortly.
On 12 April 2011, the matter again came before this Court, on which occasion the Court ordered the trial Judge to refer to it the four questions set out at the outset of these reasons. These reasons are a consideration of those questions. It is convenient, at this point, to set out in some detail the relevant sections of the Juries Act and the Juries Rules.
The Juries Act and the Juries Rules
Section 7 of the Juries Act provides that a trial will proceed without a jury if the accused person makes an election to be tried by judge alone in accordance with the rules of court and provided that the presiding judge is satisfied that before making such an election, the accused received advice from a legal practitioner in relation to the election. I now set out the terms of section 7 in full:
(1)Subject to this section, where, in a criminal trial before the Supreme Court or the District Court—
(a) the accused elects, in accordance with the rules of court, to be tried by the judge alone; and
(b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner,
the trial will proceed without a jury.
(2)No election may be made under subsection (1) where the accused is charged with a minor indictable offence and has elected to be tried in the District Court.
(3)Where two or more persons are jointly charged, no election may be made under subsection (1) unless all of those persons concur in the election.
(4)If a criminal trial proceeds without a jury under this section, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.
[Emphasis added.]
Section 89 of the Juries Act provides the Chief Justice of the Supreme Court and the Chief Judge of the District Court with the power to make rules they consider necessary or expedient for the purposes of the Act:
(1)The Chief Justice of the Supreme Court and the Chief Judge of the District Court may jointly make such rules as they consider necessary or expedient for the purposes of this Act.
(2)Without limiting the generality of the provisions of subsection (1), those rules may—
(a) prescribe the minimum number of jurors to comprise a jury panel from which a jury may be constituted;
(b) make any provision in relation to the conduct of a ballot by the sheriff under this Act;
(c) make any provision in relation to the time and manner in which jurors are to be sworn;
(d) make any provision that will conduce to the proper and efficient administration of this Act.
[Emphasis added.]
The relevant Juries Rules are those made by the Chief Justice of this Court and the Chief Judge of the District Court in June 1996. I extract the pertinent rules below.
Rule 8 is relevantly in the following terms:
(1)An accused person may make an election (hereinafter called “the election”), pursuant to section 7 (1) (a) of the Act in the manner and at the time stipulated in this Rule and not otherwise.
(2)Subject to subrule (3), the election shall apply to the trial of all charges in the information in respect of which a trial is intended to be held and no such election shall be valid or effectual if it purports to be limited to certain only of the charges contained in such information.
…
(5)Except in the case of an accused person committed for a trial to a circuit sittings the election may be made:
(a) by filing at the Registry of the Court of trial not later than the last day upon which the Registry is open for business prior to the day of the accused person’s first arraignment on the information in respect of which the trial is intended to be held, a notice in writing signed by the accused person making the election and a certificate complying with Rule 10;
(b) by the accused person or by counsel appearing for the accused person orally informing the Judge on the accused person’s first arraignment on the information in respect of which the trial is intended to be held of the accused person’s election and tendering to the Judge a certificate complying with Rule 10; or
(c)by filing a notice in writing signed by the accused person making the election and a certificate complying with Rule 10 within such time and in such manner as the Judge on the first arraignment of the accused person on the information in respect of which the trial is intended to be held shall direct.
…
(7)If the election is not made in accordance with the preceding subrules of this rule, the accused person is precluded from making it subsequently notwithstanding that the information is amended or that the trial proceeds upon an information filed in substitution for an earlier information or informations on which the accused person has been arraigned, provided however that if the amendment or the new information alters the substance of the charge or charges upon which the accused person is to be tried, the accused person may make an election at or prior to the first arraignment on the new or amended information and the provisions of the proceding subrules shall apply mutatis mutandis.
Rule 10 provides as follows:
A certificate for the purposes of Rules 8 and 9 shall be a certificate in writing signed by a legal practitioner who then holds a current practising certificate under the Legal Practitioners Act, 1981, stating that the signatory thereto is a legal practitioner who then holds a current practising certificate and that the practitioner has advised the accused person on all matters relevant to the accused person making the election. Such certificate shall clearly identify the charges in respect of which the advice has been given.
As mentioned above, the application in the within proceedings for the Judge to dispense with the requirements as to the time in which to elect for a judge alone trial; that is, at or before arraignment, or to “extend time”, was made pursuant to rules 16 and 17 of the Juries Rules.
Rule 16 provides:
A Judge may dispense with compliance with all or any of the requirements of these Rules, if the Judge is satisfied that there are special reasons for so doing or that it would unjust not to do so.
Rule 17 provides:
A Judge may extend or abridge any of the periods of time prescribed by these Rules if the Judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so and the Judge may do so whether or not such period of time has expired.
The Judge’s Reasons for Ruling
When addressing the relationship between section 7 of the Juries Act and rule 8 of the Juries Rules, her Honour observed:
It can be seen that r 8 provides that an accused person may make an election under s 7(1)(a) of the Juries Act 1927 (SA) but only in the manner and at the time stipulated in r 8. As Lander J observed in R v Haydon[2] the scheme of the rules is clear. Absent strict compliance with r 8, an accused is not entitled to elect for trial by judge alone. If there are special reasons for doing so, or it would be unjust not to do so, a judge may dispense with that strict compliance under the provisions of either r 16 or r 17. Effectively therefore an accused person is either locked out or locked in to his or her election once made.
A failure to comply with the procedures prescribed by r 8 is not regarded as a mere technical departure any may prevent an election being made unless the trial judge dispenses with compliance under the provisions of either r 16 or r 17.[3]
[Emphasis added. Original footnotes.]
[2] R v Haydon (2000) 76 SASR 265, [52]-[54].
[3] R v Garrett (1988) 50 SASR 392, 399 (King CJ); R v Haydon (2000) 76 SASR 265, [8] (Debelle J).
When considering whether or not in the circumstances of the case there were special reasons to dispense with compliance with rule 8 or to extend time, the Judge concluded:
… There are in my view no special reasons in the circumstances of this case because there is nothing out of the ordinary in the circumstances argued by [counsel for Ms Gavare] which would make them “special”.
I cannot accept the submission that the four articles referred to amount to “a frenzy of concern” within the community. While there may well be understandable concern within the community about the safety and security of elderly people, that concern is neither novel nor new. There is nothing in the articles which could give rise to any suggestion that the community’s concern has specifically arisen out of or could be sheeted home to the allegations in the current matter.
Moreover publicity both pre-trial and during trials routinely occurs in relation to many serious criminal cases. This matter is no exception. In saying that I do not suggest that in no case could publicity (either specific or general) ever amount to “special reasons” for the purpose of the Juries Rules 1996 (SA). Each case must be determined on its own facts. However there is nothing in the circumstances here which amount to special reasons within the meaning of either r 16 or r 17.
Finally, the Judge considered the question of whether it would be unjust to refuse the application, and answered this in the negative, observing that there was nothing in the circumstances of the case before her which caused her to have any misgivings about the capacity of an appropriately directed jury to be true to their oath and return a verdict according to the evidence on the issues to be tried.
It is also worth noting that in the reasons for ruling, the Judge appeared to accept the submission of Ms Gavare that were special reasons found to exist, in the circumstances of the within proceeding where there was no suggestion of judge shopping, such a finding would entitle Ms Gavare to the exercise of the discretion in her favour to grant an extension of time.
Legislative History
A purposive construction is the general approach to be taken to issues of construction,[4] and context is an important aid in this process.[5] It is settled that reference can be made to certain extrinsic materials in this inquiry, including second reading speeches.[6]
[4] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194, [88] (Kirby J); Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249, [35]-[36], where his Honour observed:
... a purposive and not a literal approach is the method of statutory construction that now prevails:
“A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question. As Lord Diplock explained, in an extra-judicial comment, “if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.
A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[5] Palgo Holdings v Gowans (2005) 221 CLR 249, [37], where his Honour observed:
... the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical. In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word … and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings.
[6] See for example K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, [50]-[53] (French CJ).
In 1975, the Criminal and Penal Methods Reform Committee of South Australia submitted its third report to the Attorney-General, “Court Procedure and Evidence”, as part of the well known “Mitchell Report”. On the topic of trial by judge alone at the option of the accused, an option which did not at the time exist in any jurisdiction in Australia, the report contained the following passage:
Since the 30th November, 1972, a person accused of a minor indictable offence may elect to be tried either by a special magistrate or by a jury. From December 1972 to November 1974, 72 persons charged with minor indictable offences elected to be tried in the Central District Criminal Court before a judge and jury rather than to be tried by a special magistrate, and about 10 such persons to be tried in the Northern and Southern Criminal Courts. We have been informed that soon after the amending legislation came into operation about 16 persons each month elected to be tried by juries for minor indictable offences but that this number gradually decreased to about three or four a month. We have been unable to obtain any record of the number of minor indictable offences tried summarily in magistrates courts. It seems probable, however, that by far the greater number of persons charged with minor indictable offences elect to be tired by a magistrate rather than by a jury. A simple amendment to the law would enable a person charged with an indictable offence, which was not a minor offence, to be tried at his option by a judge rather than by judge and jury. We think that such amendment should be made. In some places where jury trials became optional in civil claims for damages arising out of road accidents, it was found that more plaintiffs than had been expected chose trial by judge alone. It is sometimes suggested that an accused person who has a good defence is more likely to elect to be tried by a judge, the reasoning being that the judge will perceive more clearly the validity of the defence than may a jury. On the other hand, a person who relies upon his counsel to play upon the emotions of the jury is more likely to choose a jury trial. Be that as it may, we doubt whether modern juries are as affected by appeals to their emotions as it is sometimes thought.
[Emphasis added. Footnote omitted.]
In 1985, an amending Act substituted section 7 into the Juries Act. This amendment created the first Australian provision which allowed for an accused to elect to be tried by judge alone. The second reading speech and parliamentary debates relating to the amending Act provide relevant insight into the purpose of allowing an accused to elect to be tried by judge alone, and the purpose of providing the power for rules of court to determine the process of that election.
The second reading speech for the Juries Act Amendment Bill 1984 (SA), referring to the Mitchell Report, relevantly records:[7]
[7] South Australia, Parliamentary Debates, Legislative Council, 14 August 1984, 201 (The Hon CJ Sumner (AG)).
The Bill provides for trial by judge alone at the option of the accused. Provision for non-jury criminal trials at the option of the accused was suggested by the Mitchell Committee. The Government has accepted this recommendation and the Bill is the first in any Australian State to provide an accused with the option to select trial by judge alone.
In opposition to the Bill, the following issue was raised during the course of the second reading debates:[8]
[8] South Australia, Parliamentary Debates, Legislative Council, 11 September 1984, 710 (The Hon KT Griffin).
In the Bill there is provision that an accused person may make the election in accordance with the Rules of Court, which will be made by the judges of the Supreme Court. There is no indication what those rules are likely to contain. For example, when does an accused make the election? Is it immediately after a committal? Is it within a certain time before arraignment day? At what time is the decision to be taken and, if taken, is the accused entitled to change his mind?
In response to this issue, the Attorney-General in support of the Bill, said:[9]
In respect of the trial by judge alone the Hon Mr Griffin said that there was no indication of what the rules of court were likely to contain in relation to the election to be made by an accused. The principal matter to be dealt with by the rules of the court will be the time at which the election must be made by the accused. It is envisaged that the election be made before the identity of the trial judge is known. The ability to elect mode of trial will not therefore give rise to judge shopping …
[Emphasis added.]
In calling for an amendment to the relevant Bill, the same member of the opposition said:[10]
This part of the clause is the part that allows an accused person to elect, in accordance with the Rules of Court, to be tired by judge alone. I have already spoken at length on the reasons why I do not believe that it is appropriate to give an accused person the right to so elect on terms that are not spelt out even in the second reading explanation but are left to the Rules of Court. In respect of the administration of the clause, if it is enacted, I raised some questions as to when the election would be made, whether it would be possible for that election to be changed once made, whether it is to be made within a specified period after a committal regardless of when the matter comes on for trial or whether it is to be made at a fixed time before the trial commences.
In opposing the amendment sought by the opposition, the Attorney-General, who had introduced the Bill, said:[11]
… This proposition was recommended by the Mitchell Committee into the criminal law. It provides an accused person with a further option, that is, trial by judge alone. The Rules of Court will deal with the time in which an election must be made. That should prevent the problem that the honourable member has outlined of so-called “judge shopping”. The Chief Justice had some concerns about this and wanted the power to have Rules of Court relating to this matter specifically inserted so that people would be required to make the election prior to the identity of the trial judge being known.
[9] South Australia, Parliamentary Debates, Legislative Council, 13 September 1984, 837 (The Hon CJ Sumner (AG)).
[10] South Australia, Parliamentary Debates, Legislative Council, 19 September 1984, 955 (The Hon KT Griffin).
[11] South Australia, Parliamentary Debates, Legislative Council, 19 September 1984, 955 (The Hon CJ Sumner (AG)).
Having regard to the terms of sections 7 and 89 of the Juries Act in addition to the Act as a whole, and to the materials set out above, it is clear that the mischief behind section 7 was to invest in defendants a right to elect to be tried by judge alone, but to confer on the court rule making power to control the process of that election, in particular the time in which that election is to be made, primarily in order to prevent “judge shopping” or undue delay in the progress of the trial.
Arguments before the Full Court
Ms Gavare contended that rules 8(5) and 8(7) of the Juries Rules, have the effect of “prohibiting” the right of an accused to elect to be tried by judge alone, go further than merely limiting or regulating that right, and indeed, contain no temper on the prohibition; making it absolute. It was said that on this basis, the rules are ultra vires the rule making power conferred by section 89 of the Juries Act.
Counsel for Ms Gavare argued that the discovery by Ms Gavare of information which was not known and could not be known by her when she could have elected to be tried by judge alone as of right, is information which bears upon a decision to make an election. That information will, in the ordinary course, amount to a basis for special reasons to extend time in which to elect. Accordingly, it was argued, that the trial Judge in the present proceeding erred in not finding special reasons existed in the circumstances of this case. It was contended in the alternative that the Judge erred in failing to determine that it “would not be unjust” to extend time to make the election, given that her Honour had found that were special reasons to exist “the circumstances of [the] case [would] entitle [Ms Gavare] to succeed on her current application”.
The Director, as discussed below, accepted that if the rules of court materially eroded the substantive right to elect provided by the statute, then the relevant rules would be ultra vires. However, the Director submitted that the rules were procedural in character, and although they affected the substantive right of election, there was no material erosion of that right. The Director contended that in all the circumstances, it was open to the trial Judge to decline to extend time, however it was acknowledged that the Judge did not appear to have addressed the particular matters said to be relevant to the exercise of the discretion to extend time in which to make an election in this particular case.
The Director confirmed that when the merits of the application were considered by the Judge, there was no opposition to the grant of an extension of time, and confirmed that that would remain his position on any renewed application.
Consideration
Ultra Vires
It is appropriate to deal first with the challenge to the validity of rules 8(5) and 8(7) of the Juries Rules. As extracted above, it is evident from the terms of section 7 of the Juries Act, that Parliament has given a defendant the right to elect to be tried by Judge alone, an unfettered right, subject to the judge being satisfied that the defendant has received appropriate legal advice, and importantly, subject to compliance with the relevant rules of court. The extent of the restriction that might be placed on the right conferred by section 7 is primarily to be determined by reference to the authority conferred by section 89 of the Act.
Section 89 of the Juries Act, as extracted, provides the Chief Justice of the Supreme Court and the Chief Judge of the District Court with the power to makes rules of court they consider “necessary or expedient for the purposes of [the Juries] Act”. Those rules may include, inter alia, rules that will “conduce to the proper and efficient administration of [the Juries] Act”. In providing this specific rule making power, it is clear that Parliament has contemplated that rules will be made governing an election to be tried by judge alone. So much is evident from the parliamentary debates on the introduction of section 7 of the Juries Act.
A convenient starting point in considering this issue is the High Court decision in Shanahan v Scott.[12] In that proceeding, the defendant had been charged with breaching regulation 44 of the Egg and Egg Pulp Marketing Board Regulations 1953 (Vic), which provided that no person shall without the consent of the Egg Board place or cause to be placed any eggs in cold storage premises.
[12] Shanahan v Scott (1957) 96 CLR 245.
Regulation 44 was made in purported pursuance of the power conferred upon the Governor in Council by section 43(1) of the Marketing of Primary Products Acts 1935 (Vic) to make regulations, inter alia, “providing for all or any purposes (whether general or to meet particular cases) necessary or expedient for the administration of this Act or for carrying out the objects of this Act …”.
On appeal to the High Court, it was considered that powers of this kind; that is, to make rules necessary or expedient for the purposes of the Act, had on many occasions been considered by the High Court,[13] the effect of those decisions being that:[14]
[the power] does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.
[13] See Carbines v Powell (1925) 36 CLR 88; Gibson v Mitchell (1928) 41 CLR 275; Broadcasting Co of Australia Pty Ltd v The Commonwealth (1935) 52 CLR 52; Grech v Bird (1936) 56 CLR 228; Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, 409, 410.
[14] Shanahan v Scott (1957) 96 CLR 245, 250. This passage was adopted with approval by the Privy Council in Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629.
In Melbourne Corporation v Barry,[15] the High Court had occasion to consider a section of the Local Government Act 1915 (Vic), which authorised a council to make by-laws for the purpose of regulating traffic and processions. It was held that this section could not support a by-law which provided that any procession of persons or vehicles, except for military or funeral purposes, required the prior consent in writing of the council. Isaacs J in that decision reasoned that the effect of the by-law was to absolutely prohibit processions, except military and funeral processions, notwithstanding their nature or effect on traffic, unless the Council chose, for any reason it liked, to permit a particular procession. It was considered that the by-law was framed exactly as if the word “prohibition” were used in the sub-section instead of the word “regulating”, thus being beyond the power of the Council.
[15] Melbourne Corporation v Barry (1922) 31 CLR 174.
In Swan Hill Corporation v Bradbury,[16] the High Court held that a municipal by-law prohibiting the erection of any building “unless with the approval of the council” had been made. The High Court held that the by-law was ultra vires the power conferred by section 198(1)(a) of the Local Government Act 1915 (Vic) to make by-laws “regulating and restraining the erection and construction of buildings”. Latham CJ observed that the result of Melbourne Corporation v Barry and other similar decisions was that:[17]
… under a power to make a by-law regulating a particular subject matter, a municipal council has no power to prescribe that the subject matter shall not be allowed to come into existence unless the council from time to time grants its approval in each particular case. It follows that the by-law cannot be supported under the power to make by-laws regulating the erection of buildings.
[16] Swan Hill Corporation v Bradbury (1937) 56 CLR 746.
[17] Swan Hill Corporation v Bradbury (1937) 56 CLR 746, 752.
Dixon J considered that, prima facie, a power to make by-laws regulating a subject matter does not extend to prohibiting it, either altogether or subject to a discretionary licence or consent.[18]
[18] Swan Hill Corporation v Bradbury (1937) 56 CLR 746. 762.
In the Supreme Court of Victoria, Bongiorno J considered these principles in the context of a statute conferring on the Rules Committee of the Victorian Civil and Administrative Tribunal a power to make rules regulating the practice and procedure of the Tribunal. There Bongiorno J made the following observations:[19]
The rule making power of the Rules Committee of VCAT is contained in s 157 of the Act. It is, in the first instance at least, confined to making rules which regulate the "practice and procedure" of the Tribunal.
It has been long held that the term "practice" like the term “procedure” denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines that right. The terms ″practice″ and ″procedure″ refer to the machinery of justice as distinct from the product or end result of a proceeding. The “practice” of a court or tribunal comprises only those provisions of the law which are concerned with the practice and procedure observed by that court or tribunal in the exercise of the jurisdiction with which it is entrusted. The term covers "the rules that make or guide the cursus curiae, and regulate the proceedings in a cause within the … limits of the Court itself". In Gosper v Sawyer Gibbs CJ, Wilson and Dawson JJ suggested that “practice” and “procedure” were not synonyms and that procedure probably had a more comprehensive meaning than practice. In the context in which the phrase is used in s 157 of the VCAT Act, however, used together, they refer to matters of a procedural kind which guide the way in which the Tribunal exercises the jurisdiction to adjudicate upon the matters committed to it by law, and which prescribe the steps which persons seeking the exercise of that jurisdiction must take to move the Tribunal to exercise that jurisdiction. The power conferred is similar to that conferred upon the judges and magistrates of the courts of general jurisdiction to make rules in respect of the practice and procedure of those courts.
[Footnotes omitted.]
[19] Herald and Weekly Times Ltd v Victorian Civil and Administrative Tribunal (2005) 11 VR 422, [7]-[8].
A consideration of the issues concerning the validity of the rules such as those the subject of the present proceeding, involves an examination of the “true nature and purpose” of the rule making power.[20] In doing so, it is necessary to consider whether the legislative intention behind the empowering provisions provides any parameters for the subject matter of the rules. As the High Court observed in Morton v Union Steamship Co of New Zealand Ltd:[21]
A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.
In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor-General to work out that policy by specific regulation, a power to make regulations may have a wide ambit. Its ambit may be very different in an Act of Parliament which deals specifically and in detail with the subject matter to which the statute is addressed. In the case of a statute of the latter kind an incidental power of the description contained in s. 164 cannot be supposed to express an intention that the Governor-General should deal with the same matters in another way.
[20] See South Australia v Tanner (1989) 166 CLR 161, 164 (Wilson, Dawson, Toohey and Gaudron JJ) citing Dixon J in Williams v Melbourne Corporation (1933) 49 CLR 142, 155.
[21] Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, 410 (Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ).
It is plain that the power conferred by section 89 of the Juries Act is a power to make procedural rules, not substantive law. In doing so, as is often the case in conferral of rule making powers of this kind on courts, it was designed such that the court would construct the procedures and processes in which the substantive right would operate. In this case, the substantive right is to an election to be tried by judge alone, and the court is to control the processes and procedures in which that right is exercised in the court. Those processes and procedures, however, cannot derogate from the substantive right conferred.
As earlier mentioned, counsel for the Director accepted that were the rules to derogate in a material way from the substantive right to elect provided by the Juries Act, they would be ultra vires the rule making power of the court. It is against this background that it is necessary to consider the character of the impugned Juries Rules and the effect of those rules on the substantive right conferred by Parliament pursuant to section 7 of the Juries Act.
Authorities, both in the High Court and this Court, have addressed the topic of the demarcation between procedural rules and substantive right, and the effect of a procedural rule impacting on a substantive right. A test of proportionality has been developed. In Williams v Melbourne Corporation, Dixon J, in considering an attack on by-laws, observed:[22]
The by-law was impugned as not made for the purpose of regulating traffic and as unreasonable. Although in some jurisdictions the unreasonableness of a by-law made under statutory powers by a local governing body is still considered a separate ground of invalidity (see McCarthy v. Madden), in this Court it is not so treated (Widgee Shire Council v. Bonney; President, & c., of the Shire of Tungamah v. Merrett; Cook v. Buckle; Melbourne Corporation v. Barry; Jones v. Metropolitan Meat Industry Board).
To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject. The true nature and purpose of the power must be determined, and it must often be necessary to examine the operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power. (Compare Widgee Shire Council v. Bonney).
[Footnotes omitted.]
[22] Williams v Melbourne Corporation (1933) 49 CLR 142, 144-145.
These observations were applied by Wilson, Dawson, Toohey and Gaudron JJ in the State of South Australia v Tanner, where the Court observed:[23]
In the course of argument, the parties accepted the reasonable proportionality test of validity (cf. Deane J in The Commonwealth v. Tasmania (the Tasmanian Dam Case)), namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. However, they differed in the answers to which their application of the test led. The same test, in relation to a power limited to regulation, was expressed by Dixon J in Williams, as being, in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose.
[Footnotes omitted.]
[23] South Australia v Tanner (1989) 166 CLR 161, 165.
In respect of the test that has been developed, King CJ in Taylor v Guttilla observed:[24]
… I apprehend that a rule of court which is ex facie procedural, may nevertheless amount to such a direct and radical intrusion into the field of substantive law as to lead to the conclusion that, although apparently procedural, it does not in reality possess that character. For that reason the absence of any effect upon substantive rights is a relevant consideration in relation to the validity of a rule (see Karasaridis v Kastoria Fur Products (1984) 37 SASR 345, per King CJ at 350–351, but the existence of such an effect is not necessarily determinative of validity (see per Zelling J at 358): Rigney v Rigney (1987) 48 SASR 291; Commonwealth Bank of Australia v Forshaw (1990) 55 SASR 247, per Cox J at 256. The difficulty in any particular case is to determine whether the rule has passed so far into the field of substantive law as to have lost its procedural character.
A rule of court, ex facie procedural, may nevertheless be properly characterised as non-procedural if it could not reasonably have been adopted for the purpose of regulating pleading practice or procedure: Williams v City of Melboume (1933) 49 CLR 142, per Dixon J at 155. That is a useful test of validity in some circumstances. The criterion for judging whether intrusion into substantive law or effect on substantive rights has deprived a rule of its ex facie procedural character, which will be found most useful in the generality of cases, is that of proportionality. …
[Emphasis added.]
[24] Taylor v Guttilla (1992) 59 SASR 361, 366–367.
In Western v Male,[25] the Full Court had occasion to consider the significance of a rule of practice and procedure which touched on substantive rights. The question of law referred to the Full Court was whether requiring a defendant to submit to a medical examination requested by a plaintiff was ultra vires the rule making powers of the Supreme Court. There, I concluded:[26]
It is my view that s 72(1)(b) confers on the court a general power to make rules with respect to practice and procedure, and that that power is not exceeded by the mere fact that r 153(1) has the capacity to infringe substantive rights – the extent of infringement is to be tempered by the overriding objective identified by Street CJ in Christie v Webb, and the court’s supervision to ensure that it is properly used for practice and procedure. Accordingly, the court will assess whether, in the circumstances of the particular case, it is reasonable to issue a direction pursuant to r 153(1). Is there, in the words of King CJ, an appropriate “proportionality”? When viewed within the rubric of practice and procedure, and on the construction given above, it can be seen that there are safeguards in place to ensure that the Rule is properly used for practice and procedure, thereby limiting any undue interference with a defendant’s substantive rights.
[Emphasis added.]
[25] Western v Male (2010) 107 SASR 285.
[26] Western v Male (2010) 107 SASR 285, [28].
The Question of Construction
Having regard to the foregoing, it may be accepted that the rule making power was designed to allow for the regulation of the practice and procedure to be followed by defendants seeking to elect to be tried by judge alone. The rules in their terms are directed to matters of practice and procedure. The Director was correct to acknowledge that this was the purpose of the rules, and should guide their construction.
It has long been accepted that an essential feature of the court’s inherent jurisdiction is to protect its processes from abuse.[27] The justification for this aspect of the inherent jurisdiction is evident in the often quoted passage of Baron Alderson in Cocker v Tempest:[28]
The power of each court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion …
[27] R v Forbes; Ex Parte Bevan (1972) 127 CLR 1, 7 (Menzies J).
[28] Cocker v Tempest (1841) 151 ER 864, 865.
In my view, an essential element of controlling the processes and procedures in which rights conferred by Parliament are exercised in the courts is the power to prevent abuse of court processes. The power to make rules conferred in the terms provided by section 89 of the Act, and clearly contemplated by section 7, in my view, encompasses the power to prevent processes, which are invoked by the Juries Act scheme, from being abused. In my view, the rules are properly made under the rubric of practice and procedure. They are there in order to allow the court to protect its processes from abuse through the use of the right conferred. Further, it is my view that they are necessary or expedient for the purposes of [the Juries] Act, to “conduce to the proper and efficient administration of [the Juries] Act”. Finally, when viewed in this way, it cannot be said that the exercise of the rule making power in the within proceeding has eroded in any material way a substantive right.
The administration of the Act, and the implementation of the right conferred by section 7 of the Act, should, through the use of the power conferred by section 89 of the Act, be controlled by the court in a way that does not adversely effect the flow of court business and processes. The fact that one finds in the rules a time in which election is to be made, is unsurprising given what I have just said in addition to what I have extracted in relation to the relevant legislative history. It is also unsurprising in light of the terms of section 7, in that those terms contemplate compliance with rules of court.
The issue that then arises for consideration relates to the way in which an extension of time might operate. If one categorises the rules as falling under the rubric of practice and procedure, the question is not whether the fixing of a time limit itself erodes a substantive right, but instead whether the way in which an extension of time might operate erodes a substantive right to an impermissible extent. As noted above, the Director acknowledged that if on their proper construction the rules materially eroded the substantive right of election, then they would be ultra vires the rule making power conferred.
The extent to which the right contained in section 7 of the Juries Act is limited by the operation of rules 8(5) and 8(7) of the Juries Rules, is, in my view, to be understood to be coupled, and in a way, tempered, by the discretion conferred by rules 16 and 17. Rule 8 is not to be construed in isolation of the remainder of the rules.
The discretion of the court to dispense with compliance with the requirements of the rules or to extend time are both conditioned on the court being satisfied that either there is special reasons for so doing, or that it would be unjust not to do so. The fact that the discretion is conditioned on the above alternatives would suggest that rules were designed to facilitate an extension in an appropriate case. The use of the phrase “would be unjust not to do so” is designed, it might be suggested, to enable the court to act in a wide variety of circumstances. As the purpose of the rule appears primarily to be directed to control process and avoid abuses of process, then it may be understood that a genuine explanation as to why the right was not exercised earlier would be sufficient to meet the requirement of the rules. It is relevant to note that even if the justice of the case does not call for an extension, special reasons may otherwise exist.
Much has been said about the concept denoted by the expression “special reasons”. It amounts to reasons that are out of the ordinary, something that is distinct or peculiar about the case.[29] It is something that exceeds, in some way, that which is usual or common.[30] It has also been said that the phrase denotes that the discretion that it constrains is not lightly to be enlivened.[31] However, what will amount to special reasons is to be interpreted in the context in which the term is used; the expression takes its colour from the context in which it is found. As King CJ in Goldsmith v Newman observed:[32]
The expression "special reasons" is used in a number of statutes. It takes its colour necessarily from the context in which it is found and in particular from the purpose which the particular statutory provision is intended to serve. I do not think that much, if any, assistance can be gained from the interpretation of the expression where it is used in other contexts.
[29] White v South Australia (2007) 96 SASR 581, [48]-[49].
[30] White v South Australia (2007) 96 SASR 581, [98] see also Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238, 243-244. .
[31] Boscolo v The Secretary, Department of Social Security (1999) 90 FCR 531, [18].
[32] Goldsmith v Newman (1992) 59 SASR 404, 409.
As discussed above, one matter of concern is for the court to consider whether its processes are being abused – for example, by what is loosely described as “judge-shopping”. Another matter of concern is for the court to understand why the proposed election was not made at or before the time of the first arraignment.
In the present proceeding, following the expiration of the time for election, circumstances relevant to an election occurred. Had these circumstances occurred prior to the expiration of the time for election, Ms Gavare would have elected for trial by judge alone. This was the explanation proffered by Ms Gavare to support her application for an extension of time. This would appear to provide an explanation that would render it unjust not to extend time. The same would appear to apply with respect to “later acquired knowledge”. Why should a defendant be denied a substantive right of election because of the fortuity that circumstances relevant to a decision to elect occurred after the time for election had expired, or that information relevant to a decision to election was not available at or before the first arraignment. To deny the defendant the right of election in this circumstance, would, in my view, be unjust.
Further Matters
As discussed above, the trial Judge did not directly address the primary complaint of Ms Gavare – that the occurrence of subsequent events was the basis of the application to extend time. Rather, the Judge resolved the issue by considering whether any prejudice was to be suffered by Ms Gavare as a result of the media reports if the trial proceeded by judge and jury. In my respectful view, this was not the relevant question to be addressed.
Counsel for Ms Gavare did not assist the trial Judge on the question of the construction of the rules or on the assertion that the rules were ultra vires the rule making power. This was unfortunate. Counsel for Ms Gavare having raised these issues was in my view obliged to assist the court by reference to appropriate authority and the development of relevant submissions. In my view this obligation arose, notwithstanding the urgency of the application.
Conclusion
For the reasons given, I would provide the following answers to each of the questions.
1Was I correct in finding that the material before me did not justify the conclusion that there were special reasons for dispensing with the requirements of rule 16 of Juries Rules 1996 (SA): No.
2Was I correct in finding that there were no special reasons for extending the period of time prescribed in rule 17 of the Juries Rules or in refusing to find that it would be unjust not to extend that period of time: No.
3Was I correct in exercising my discretion so as to refuse the application to permit the accused to elect for trial by judge alone: No.
4Was I correct in deciding that rules 8(5) and 8(7) of the Juries Rules were not ultra vires: Yes.
SULAN J: I agree with the reasons of Gray J and the answers to the questions he proposes.
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