R v UD
[2020] ACTSC 88
•16 April 2020
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 |
Legislation Cited: | COVID-19 Emergency Response Act 2020 (ACT) |
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 may be an argument that s 34 of the HRA is not applicable. This is because the section only applies if “the Territory is not a party to the proceeding”. If the Crown is the Territory, then the latter is already a party to the proceeding and s 34 does not apply.
I had the benefit today of hearing from the learned ACT Solicitor-General, who appeared on behalf of the Attorney-General. He told me that this issue is undecided, but essentially, as I understood him, I should regard the Crown and the Territory, for current purposes, as separate.
As far as the s 78B notices are concerned, the constitutional challenge, as described in the accused’s written submissions rely on more than one argument. It is possible for me to proceed without regard to s 78B, but I would only do so, as pointed out by the accused, if the constitutional argument was “trivial or unarguable”. (Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292). That is not the case here.
The accused agreed that I would not, as a single judge, overturn the decision of the High Court in R v Bernasconi (1915) 19 CLR 629. The same would apply to the Full Court and the Court of Appeal. In respect of the argument arising from Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, I could no doubt express a view but the more persuasive view would come from an appellate court.
The next point is whether or not I refer the matter to the Full Court. After I pointed out what I considered to be some relevant considerations I allowed the parties some time to consider whether they wished to pursue the s 13(2) option. This section provides a discretionary power.
After a short adjournment the accused indicated that he wished the whole of the matter to be referred to the Full Court. The Crown submitted that I should not accede to that request, instead the matter should continue to be heard, but by initially deciding the
s 68BA arguments, and then, if necessary, deciding the validity arguments. This approach was supported by the Solicitor-General. The Crown pointed out that if my decision was against a judge alone trial, the validity points would automatically disappear.
I think I should list the considerations that I have found relevant in deciding whether or not to exercise the discretion under s 13(2).
In favour of the referral are the following:
(a)A referral is unusual. It must be derived from compelling circumstances. The fundamental attack on the legislation, and the importance of the legislation, are compelling circumstances.
(b)A decision that Bernasconi no longer reflects the correct law is better made by three judges rather than one.
Against the referral are these considerations:
(a)The other side of the Bernasconi point. The quickest road to the High Court will be via a single judge to the ACT Court of Appeal and then to the High Court.
(b)Because there are so many other accused persons likely to be affected it is appropriate that the most expeditious route be taken to the final conclusion, at least as far as the arguments can be taken within the ACT Supreme Court.
(c)A decision of the Full Court is not the limit of the Supreme Court’s jurisdiction. It is clear from s 37E(2)(a) that the Court of Appeal may hear an appeal from the Full Court unless the latter Court was exercising appellate jurisdiction. The Full Court would not be exercising appellate jurisdiction.
(d)The progress of the matter through the Full Court and then the Court of Appeal could be lengthy, thus delaying the resolution of the challenges. Judgments would no doubt be reserved and differences of opinion could well create further delays. No doubt consideration would be given to an appeal of any decision I make, but a decision of one judge is likely to be made before that of three judges.
(e)If the constitutional challenge is unsuccessful, be it at the Full Court or Court of Appeal level, it would not be appropriate for either of these Courts to exercise the discretion required by s 68BA(3). Thus the matter would return to a single judge to exercise the discretion and, if necessary, consider submissions made under s 68BA(4). Again, there would be yet more delay.
(f)There is a matter of practicality. The Full Court would be constituted by three judges. An appeal to the Court of Appeal would require another three judges, if not five. Simply put, the ACT Supreme Court does not have enough judges.
(g)The Federal Court has usually provided Additional Judges to sit on the ACT Court of Appeal. Regrettably, due to the COVID-19 crisis, the Federal Court is no longer making judges available. No doubt judges could be ‘drafted’ from other jurisdictions, but once again this would involve further delays.
I have also considered two further possibilities. Firstly, I could potentially sever the validity arguments from the s 68BA arguments and refer only the former to the Full Court. The difficulty with this possibility is that s 13(2) probably does not permit the severance. The definition of “matter” in the Dictionary to the Act needs a strained interpretation to allow a severance. Absent the consent of the parties I would be very reluctant to take this course.
The second possibility, which is a variation from the process suggested by the Crown, is that I proceed to hear the s 68BA arguments, noting that the validity arguments, if appropriate will be pursued in separate proceedings seeking the appropriate declaratory relief. It is trite to say that until the legislation is found to be invalid, it remains valid. There is therefore no bar to me hearing, until there is a contrary decision about validity, the
s 68BA part of the proceedings.
Having given the matter significant consideration I have come to the following view. I will accept the suggestion of the Crown and the Solicitor-General and proceed to hear the
s 68BA submissions. I will endeavour to give a decision as soon as possible. If the decision does not favour the accused, and he wishes to pursue the validity arguments, I will adjourn the matter to allow the various notices, and any consequent submissions, to be served and obtained, and then decide the validity arguments.
Again, if I am against the accused, and having regard to his interests, I will not proceed to a judge alone trial without giving him the opportunity to take whatever further appellate action he thinks appropriate. I will also await the result of any decision of the Court of Appeal.
Accordingly, the request by the accused for a referral to the Full Court is refused. I will otherwise proceed in accordance with the above reasons.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 16 April 2020 |
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