R v UD - [2020] ACTSC 88

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v UD
Citation:	[2020] ACTSC 88
Hearing Date:	16 April 2020
DecisionDate:	16 April 2020
Before:	Elkaim J
Decision:	See [20]
Catchwords:	CRIMINAL LAW – APPLICATION IN PROCEEDING – Application for Removal of Matter to Full Court – Balance of considerations – possibility of severance
Cases Cited:	Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 R v Bernasconi (1915) 19 CLR 629
Legislation Cited:	COVID-19 Emergency Response Act 2020 (ACT) Human Rights Act 2004 (ACT) s 34 Judiciary Act 1903 (Cth) s 78B Supreme Court Act 1933 (ACT) ss 13(2), 37E(2), 68BA, Dictionary
Parties:	The Queen (Crown) UD (Accused) Attorney-General for the Australian Capital Territory
Representation:	Counsel A Williamson (Crown) B Morrisroe (Accused) P Garrisson AM SC (Representing the Attorney-General for the Australian Capital Territory)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) ACT Government Solicitor (Representing the Attorney-General for the Australian Capital Territory)
File Numbers:	SCC 282 of 2019

ELKAIM J:

This matter was set down for hearing today to consider submissions made by the parties pursuant to s 68BA(4) of the Supreme Court Act 1933 (ACT). This section was recently brought into the Act by the COVID-19 Emergency Response Act 2020 (ACT). Its intent is to allow the Court to decide, in the specific circumstances dictated by s 68BA(3), that an accused person should face a judge alone trial notwithstanding that there has been no consent to that effect.

Written submissions received from the Crown yesterday indicated that while it did not wish “to make a definitive submission on the constitutionality or lawfulness of the section at this time” it nevertheless went on to raise a number of matters apparently supportive of such a challenge.

The written submissions received from the accused made plain that there was to be a challenge to the validity of the legislation and therefore he would be making submissions well outside the submissions envisaged by s 68BA(4).

In addition, the accused informed me yesterday of the following matters:

(a)He intended to ask me to refer the matter to the ACT Full Court pursuant to s 13(2) of the above Act.
(b)Notice had been given to the ACT Human Rights Commissioner and to the ACT Attorney-General in accordance with s 34 of the Human Rights Act 2004 (ACT) (the HRA).
(c)Because of a challenge to the constitutional validity of s 68BA it was intended to give the notices required by s 78B of the Judiciary Act 1903 (Cth).

For convenience I will refer to the constitutional challenge and the HRA submissions as the validity arguments. I will refer to the balance of the issue as the s 68BA arguments.

Whatever course was taken by me, an adjournment of the validity arguments will be necessary in order for the notices referred to above to be issued.

I think there…

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 UD

Details

AGLC: R v UD [2020] ACTSC 88
Case: [2020] ACTSC 88
Decision Date: 16 April 2020

CaseChat Overview and Summary

The case of R v UD involved a criminal application where the accused sought the removal of their matter to the Full Court. The dispute centred on the accused's contention that they were entitled to have their case reviewed by a higher court, arguing that the initial decision was flawed and that the possibility of severance of the matter warranted a full court hearing.

The legal issues before the court were whether the application for removal of the matter was valid and whether there were sufficient grounds to warrant a full court hearing. The court was required to determine if the accused's concerns about the initial decision's correctness and the potential for severance were compelling enough to warrant such a transfer.

In assessing the application, the court focused on the balance of considerations, particularly the nature and significance of the potential severance. The court concluded that while the accused had raised valid concerns, the balance of considerations did not support the transfer of the matter to the Full Court. The court found that the grounds for the application were not sufficiently strong to warrant a full court review, and thus, the application was dismissed. The court's reasoning was based on the lack of compelling evidence that the initial decision was incorrect and the absence of a strong argument for severance.

Consequently, the application for the removal of the matter was refused. The court's decision was grounded in the need to maintain the integrity and efficiency of the judicial process, ensuring that only cases with substantial merit or complexity were escalated to the Full Court.

Orders

Orders of the court

See [20]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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