R v Gavare

Case [2011] SASCFC 38

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…

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R v Gavare [2011] SASCFC 38
Case
[2011] SASCFC 38
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia considered four questions reserved by a trial judge concerning an application by the accused, Ms Gavare, to elect to be tried by judge alone. Ms Gavare was charged with murder and had missed the usual deadline for making such an election. Her application sought an extension of time based on the publication of news articles concerning a series of murders of elderly women, which she argued created special reasons for the extension or would make it unjust not to extend the time. The trial judge had refused the application, finding that the publicity did not constitute special reasons and that it would not be unjust to refuse the extension.

The legal issues before the Full Court were whether the trial judge erred in concluding that special reasons did not exist to extend the time for election, and whether the judge correctly determined that it would not be unjust not to extend the time. Further, the court was asked to consider whether the judge correctly exercised her discretion in refusing the application and whether certain rules of the Juries Rules 1996 (SA) were *ultra vires* the rule-making power conferred by the Juries Act 1927 (SA).

The Full Court, in its consideration of the *ultra vires* question, referred to the High Court decision in *Shanahan v Scott*, which established that powers to make rules for the purposes of an Act are ancillary and do not permit the extension of the Act's scope or the addition of new means of carrying out its objects. The court found that the rule-making power under section 89 of the Juries Act contemplated rules governing judge-alone elections, and that rules 8(5) and 8(7) were not *ultra vires*. However, the court noted that counsel for Ms Gavare had failed to provide assistance on the construction of the rules or the *ultra vires* challenge, which was considered unfortunate.

The Full Court answered the reserved questions. It found that the trial judge was incorrect in concluding that the material did not justify special reasons for dispensing with the requirements of rule 16 and that there were no special reasons for extending the time under rule 17, or in refusing to find it would be unjust not to extend the time. Consequently, the trial judge was incorrect in exercising her discretion to refuse the application to permit the accused to elect for trial by judge alone. The trial judge was, however, correct in deciding that rules 8(5) and 8(7) of the Juries Rules were not *ultra vires*.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.ConsiderationUltra 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.