R v Gavare

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*.