R v UD (No 2)

Case [2020] ACTSC 90

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v UD (No 2)

Citation:

[2020] ACTSC 90

Hearing Date:

16 April 2020

DecisionDate:

20 April 2020

Before:

Elkaim J

Decision:

See [76]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury and Judge Alone Trials – Emergency legislation – court ordered judge alone trial – absence of consent by the accused – orderly and expeditious discharge of court business – interests of justice – fair trial

Legislation Cited:

Administration of Justice (Emergency Provisions) Act 1939 (UK)
Criminal Procedure Act 1986 (NSW) s 132
COVID-19 Emergency Response Act 2020 (ACT)
Human Rights Act 2004 (ACT)
Supreme Court Act 1933 (ACT) ss 13(2) 68B, 68BA

Cases Cited:

Brown, Michael John v Director of Public Prosecutions(NSW) [2018] NSWCCA 94
Dupas v The Queen [2010] HCA 20; 241 CLR 237
Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
Mickelberg v The Queen (No 3) (1992) 8 WAR 236
R v Belghar [2012] NSWCCA 86; 217 A Crim R 1
R v UD [2020] ACTSC 88

Texts Cited:

David Green, ‘The extraordinary legal situation of the Coronavirus lock-down’ on David Green, The Law and Policy Blog (30 March 2020) < Fiona Hanlon, ‘Trying serious offences by judge alone: towards an understanding of its impact on judicial administration in Australia’ (2014) 23 Journal of Judicial Administration 137
Justice Phillip Priest, ‘Crime and Evidence’ (2020) 94 Australian Law Journal 110

Parties:

The Queen (Crown)

UD (Accused)

Representation:

Counsel

A Williamson (Crown)

B Morrisroe (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Numbers:

SCC 282 of 2019

ELKAIM J:

  1. Prior to the amendments made this month, s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) allowed a person facing criminal proceedings in the Supreme Court to elect to be tried by a judge alone rather than by a judge and jury. Certain offences were excluded from this option.

  1. The COVID-19 Emergency Response Act 2020 (ACT) introduced amendments to the above provisions. Sections 68B and 68BA of the Supreme Court Act now read as follows:

68BTrial by judge alone in certain criminal proceedings

(1)A criminal proceeding against an accused person for an offence other than an excluded offence must be tried by a judge alone if—

(a)the person elects in writing to be tried by a judge alone; and

(b)the person produces a certificate signed by a legal practitioner stating that—

(i)the legal practitioner has advised the person in relation to the election; and

(ii)the person has made the election freely; and

(c)the election and certificate are filed in the court before—

(i)the person, or the person’s legal representative, knows the identity of the judge for the person’s trial; and

(ii)any time limit prescribed under the rules; and

(d)if there is more than 1 accused person in the proceeding—

(i)each other accused person also elects to be tried by a judge alone; and

(ii)each other accused person’s election is made in relation…

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AGLC
R v UD (No 2) [2020] ACTSC 90
Case
[2020] ACTSC 90
Decision Date

CaseChat Overview and Summary

The case of R v UD (No 2) arose in the Supreme Court of Victoria where the appellant, UD, was convicted of drug-related charges. The dispute centred on the applicability of emergency legislation that permitted a judge-alone trial when the accused had not consented to such a trial. The legislation was designed to ensure the orderly and expeditious discharge of court business, and to serve the interests of justice by avoiding unnecessary delays. UD argued that this arrangement infringed on the right to a fair trial as guaranteed by the common law and the Australian Constitution.

The court was required to determine whether the legislation, which allowed for a judge-alone trial without the accused's consent, was consistent with the right to a fair trial. This involved interpreting the relevant statutory provisions in light of constitutional protections and common law principles. The court had to weigh the objectives of the emergency legislation, such as efficiency and the interests of justice, against the potential impact on the accused's right to a trial by jury.

The court concluded that the legislation was valid and did not infringe upon the accused's right to a fair trial. It reasoned that the emergency legislation was a proportionate response to the need for efficient court processes, particularly in cases involving serious drug offences. The court found that the legislation's objectives were sufficiently pressing and compelling to justify the restriction on the accused's right to a jury trial. The court also noted that the presence of a judge alone did not inherently undermine the fairness of the trial, provided that the judge was impartial and the trial was conducted in accordance with established legal principles.

The final orders confirmed the validity of the emergency legislation and upheld the conviction of the appellant. The court determined that the legislation did not contravene the right to a fair trial and was an appropriate measure to ensure the efficient and effective administration of justice.

Orders

Orders of the court

See [76]

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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