R v Sq (No 5)

Case [2021] ACTSC 145


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v SQ (No 5)

Citation:

[2021] ACTSC 145

Hearing Date:

9 July 2021

DecisionDate:

9 July 2021

ReasonsDate:

22 July 2021  

Before:

Burns ACJ

Decision:

See [8]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application in Proceeding – Application by defence to appoint alternative judge during jury trial – where trial judge sustained injuries and not able to continue – where five days of evidence already heard by jury – application not opposed – consideration of categories of cases where a judge may take over proceedings commenced by another judge

Legislation Cited:

Crimes Act 1900 (ACT) ss 60(1) and 54(1)

Cases Cited:

Bakarich v Commonwealth Bank of Australia (No 2) [2012] NSWCA 390
R v Crown Court at Southwark, Ex parte Commissioners of Custom and Excise (1993) 97 Cr App R 266
R v I(C) [2010] 1 Cr App R 138

Parties:

The Queen (Crown/Respondent)

SQ (Accused/Applicant)

Representation:

Counsel

R Christensen (Crown/Respondent)

S Whybrow (Accused/Applicant)

Solicitors

ACT DPP (Crown/Respondent)

Aulich Law (Accused/Applicant)

File Number:

SCC 217 of 2020

BURNS ACJ:

  1. On 28 June 2021 the applicant was arraigned before Elkaim J on an indictment alleging one count of engaging in sexual intercourse without consent contrary to


    s 54(1) of the Crimes Act 1900 (ACT) (the Crimes Act) and three counts of committing an act of indecency without consent contrary to s 60(1) of the Crimes Act. The applicant entered pleas of not guilty to all charges and a jury was empanelled. The Crown case commenced on Monday 28 June 2021 and continued through to the afternoon of Friday, 2 July 2021. The trial was due to continue on


    Monday, 5 July 2021.

  1. Over the weekend of 3 and 4 July 2021, Elkaim J was involved in an accident in which his Honour sustained injuries such that he was unable to continue to preside in the trial on 5 July 2021. At that time, it was unclear for how long his Honour would be incapacitated. In my capacity as Acting Chief Justice I adjourned the further hearing of the trial until 10:00am on 12 July 2021.

  1. By an application dated 8 July 2021, the applicant sought orders that I, in my capacity as Acting Chief Justice, appoint another judge to continue to preside at the applicant’s trial as Elkaim J was medically unfit to continue to preside and was likely to remain unfit for the foreseeable future. The application came before me on


    Friday, 9 July 2021. At that time, based upon the information available to me, it seemed unlikely that Elkaim J would recover from his injuries to the extent that his Honour would be able to resume presiding over the trial on 12 July 2021. Counsel for the applicant and for the Crown urged me to make the orders sought by the applicant. I directed that if Elkaim J remained incapacitated to the extent that his Honour could not resume presiding over the trial on…

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R v Sq (No 5) [2021] ACTSC 145
Case
[2021] ACTSC 145
Decision Date

CaseChat Overview and Summary

In this case, the accused, SQ, was charged with one count of engaging in sexual intercourse without consent and three counts of committing an act of indecency without consent. SQ pleaded not guilty, and a jury trial was conducted before Elkaim J. However, Elkaim J was injured and unable to continue presiding over the trial. The accused applied for another judge to continue presiding over the trial, and the application came before Burns ACJ. The legal issue before the court was whether it was permissible for another judge to complete the part-heard criminal trial that had been commenced by another judge. The court considered the relevant authorities and found that it was not inherently impossible for one judge of a superior court to complete a legal proceeding that had been begun by another judge. The court also considered the circumstances of the case, including the availability of full transcripts, the progress of the trial, the cost and inconvenience of discharging the jury and retrying the accused, the risk of loss of evidence, and the parties' consent. The court made the direction that the trial continue before Burns ACJ because of the incapacity of Elkaim J to continue in that role. The trial continued before Burns ACJ and the jury empanelled by Elkaim J, with the jury returning verdicts of not guilty on all charges on 14 July 2021. The accused was acquitted of all charges.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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