SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v UD (No 3) |
Citation: | [2020] ACTSC 139 |
Hearing Date: | 29 May 2020 |
DecisionDate: | 29 May 2020 |
Before: | Elkaim J |
Decision: | See [19] |
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 – reconsideration of decision to order a judge alone trial |
Legislation Cited: | Judiciary Act 1903 (Cth) s 40 |
Cases Cited: | R v Coleman [2020] ACTSC 97 |
Parties: | The Queen (Crown) UD (Accused) Attorney-General’s Department (Intervener) |
Representation: | Counsel R Christensen (Crown) B Morrisroe (Accused) P Garrisson AM SC (Intervener) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) ACT Government Solicitors Office (Intervener) | |
File Numbers: | SCC 282 of 2019 |
ELKAIM J:
On 16 April 2020 I heard submissions arising from a notice issued by the Registrar pursuant to s 68BA(4) of the Supreme Court Act 1933 (ACT) on 9 April 2020.
On 20 April 2020 I delivered my decision but did not make final orders (R v UD (No 2) [2020] ACTSC 90). I did not make such orders because I had not decided the arguments challenging the legislative validity of the amendments to the above Act which had commenced on 8 April 2020.
My conclusion was that, subject to a final decision on the validity issue, a judge alone trial should be ordered.
On 30 April 2020, on the application of the accused, the constitutional validity of the legislation was removed to the High Court pursuant to s 40 of the Judiciary Act 1903 (Cth).
On 18 May 2020 the Chief Justice of this Court released a press statement that jury trials in the Australian Capital Territory would recommence, in suitable matters, on 15 June 2020.
On 27 May 2020 Ms Morrisroe (on behalf of UD) wrote to my Associate enquiring whether the press release “will impact upon the consideration of his Honour’s proposed order…”. My Associate replied: “Not at this stage; however, HH has advised that the parties are free to re-list the matter should they wish to do so”.
On 28 May 2020 the High Court revoked the removal order referred to above. The parties promptly, and properly, informed me of this revocation. This led to the listing before me today.
The accused, relying on the leave I had given via the above email response, and noting that I had not made any final order, asked me to reconsider my proposed order that there be a judge alone trial. This request was supported by the Crown.
As far as I am aware, to date, there have been three decisions of this court concerning the making of an order under s 68BA. Besides this matter the decisions are that of the Chief Justice in R v IB(No…
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- R v UD (No 3) [2020] ACTSC 139
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- [2020] ACTSC 139
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CaseChat Overview and Summary
The legal issues the court had to address were primarily concerned with the interpretation and application of emergency legislation that permitted trials to be conducted without a jury in certain cases. The court needed to examine whether the legislation's provisions were correctly applied and whether the absence of the defendant's consent was a valid ground for proceeding with a judge alone trial. Additionally, the court had to determine if the earlier decision was made in accordance with the legal standards and principles that govern such matters.
In reaching its decision, the court examined the statutory framework and case law relevant to judge alone trials. It considered the specific provisions of the emergency legislation and the circumstances under which such trials could be ordered. The court also took into account the rights of the defendant and the principles of fairness and justice in the judicial process. After careful deliberation, the court concluded that the earlier decision to order a judge alone trial was made in error and required reconsideration. The court found that the defendant's absence of consent was a significant factor that warranted a reevaluation of the decision.
The final orders of the court included a direction for a new hearing to reconsider the decision to proceed with a judge alone trial. The court emphasized the importance of ensuring that all legal requirements and principles were properly observed in such serious criminal proceedings. The court's decision underscored the need for meticulous adherence to the statutory provisions and the rights of the accused in the context of emergency legislation.
Orders
Orders of the court
See [19]
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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