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R v Girvan

R v Girvan

Case [2012] ACTSC 142 24 August 2012

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R v WILLIAM THOMAS GIRVAN
[2012] ACTSC 142 (24 August 2012)

CRIMINAL LAW – Jurisdiction, practice and procedure – Election for trial by judge alone – Amendment to Supreme Court Act 1933 (ACT) s 68B – Meaning of “right” in Interpretation Act 2001 (ACT) s 84 – Right to elect accrued upon filing of indictment – Right saved notwithstanding statutory amendment – Election validly made.

Crimes Act 1900 (ACT), s 61
Criminal Proceedings Legislation Amendment Act 2011 (ACT)
Human Rights Act 2004 (ACT), s 21(1)
Legislation Act 2001 (ACT), ss 6, 84
Supreme Court Act 1933 (ACT), s 68B

Acts Interpretation Act 1915 (SA), s 16(1)(c)
Interpretation Act 1984 (WA), s 37(1)(c)
Jury Act 1936 (Tas)
Juries Act 1960 (NI)

Gans, J, Henning, T, Hurnter, T, and Warner, K, Criminal Process and Human Rights (Federation Press, 2011)
Garner, B A, (ed), Black’s Law Dictionary (Thomson West, 8^th ed, 2004)
Pearce, D C, and Geddes, R S, Statutory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011)
Macquarie Dictionary (Macquarie Dictionary Publishers, 5^th ed, 2009)
Oxford English Dictionary (Clarendon Press, 2^nd ed, 1989)

Ah Hing v Hough (1926) 28 WALR 95
Colonial Sugar Refinery Co Ltd v Irving [1905] AC 369
Commonwealth of Australia v Vance (2005) 158 ACTR 47
Director of Public Works v Ho Po Sang [1961] AC 901
Esber v The Commonwealth (1992) 174 CLR 430
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Howard v Bondfield (1974) 3 ACTR 62
Keating v Calas [1974] VR 381
Looker v Holcomb (1827) 4 Bing 183; 130 ER 738
Mathieson v Burton (1971) 124 CLR 1
Maxwell v Murphy (1957) 96 CLR 261
MCP Muswellbrook Pty Ltd v Deutsche Bank (Asia) AG (1988) 12 NSWLR 16
Newell v The King (1936) 55 CLR 707
R v Fearnside (2009) 3 ACTLR 25
R v McNeill (No 3) (2007) 209 FLR 176
R v Abdroikov [2007] 1 WLR 2679
Re Government Railways No 1 Award [1918] AR (NSW) 213
Richardson v Shipp [1970] Tas SR 105
Rodway v The Queen (1990) 169 CLR 515
W v The Queen (2001) 115 FCR 41
Western Australia v Richards (2008) 37 WAR 229
Zollner v Sydney Municipal Council (1917) 17 SR(NSW) 164

No. SCC 13 of 2011

Judge: Refshauge ACJ
Supreme Court of the ACT

Date: 24 August 2012

IN THE SUPREME COURT OF THE       )
  )          No. SCC 13 of 2011
AUSTRALIAN CAPITAL TERRITORY    )

R
v
WILLIAM THOMAS GIRVAN

ORDER

Judge:  Refshauge ACJ
Date:  13 August 2012
Place:  Canberra

THE COURT DECLARES THAT:

The election made by William Thomas Girvan on 14 July 2011 is effective to require that the trial of the indictment dated 1 April 2011 be by judge alone.

Over some years, there has been discussion in this Territory about the extent of the availability for accused persons of an election to be tried not by a jury but by judge alone and whether it was availed of by accused persons too readily…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Girvan

Details

AGLC: R v Girvan [2012] ACTSC 142
Case: [2012] ACTSC 142
Decision Date: 24 August 2012

CaseChat Overview and Summary

The case of R v Girvan involved the defendant, Girvan, who was charged with various criminal offences. The dispute centred on the legal validity of Girvan's election to be tried by a judge alone, given the recent amendment to the Supreme Court Act 1933 (ACT) section 68B, which had altered the conditions under which such an election could be made. The case was heard by the Supreme Court of the Australian Capital Territory.

The primary legal issue before the court was whether Girvan's right to elect a trial by judge alone was saved by the Interpretation Act 2001 (ACT) section 84, despite the subsequent amendment to the Supreme Court Act. The court had to determine if the right to elect accrued upon the filing of the indictment and if this right could be maintained notwithstanding the statutory amendment. Additionally, the court had to consider whether Girvan's election was validly made under the circumstances.

The Supreme Court held that Girvan's right to elect a trial by judge alone accrued upon the filing of the indictment, prior to the amendment of the Supreme Court Act. The court found that the term "right" in the Interpretation Act s 84 encompassed the right to elect, which was saved despite the subsequent amendment. Therefore, Girvan's election to be tried by a judge alone was validly made. The court reasoned that the statutory change did not retroactively affect the rights that had already accrued.

As a result, the court upheld the validity of Girvan's election to be tried by a judge alone, rejecting the prosecution's argument that the statutory amendment rendered the election invalid. The court's decision underscored the importance of the timing of the accrual of rights and the protective scope of the Interpretation Act in preserving such rights.

Orders