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R v Sq (No 5)

R v Sq (No 5)

Case [2021] ACTSC 145 9 July 2021

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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:

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.

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.

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…

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 Sq (No 5)

Details

AGLC: 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