R v UD (No 3) - [2020] ACTSC 139

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 Supreme Court Act 1933 (ACT) s 68BA(4)
Cases Cited:	R v Coleman [2020] ACTSC 97 R v IB (No 3) [2020] ACTSC 103 R v UD (No 2) [2020] ACTSC 90
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…

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 (No 3)

Details

AGLC: R v UD (No 3) [2020] ACTSC 139
Case: [2020] ACTSC 139
Decision Date: 29 May 2020

CaseChat Overview and Summary

The case before the court involved a defendant, referred to as UD, who was charged with serious criminal offences. The particular issue before the court was whether the trial should proceed with a judge alone, without a jury, given that the legislation in question allowed for such an arrangement in specified circumstances. The decision to proceed with a judge alone trial was made in the absence of consent from the defendant. The court was required to reconsider the earlier decision that had ordered a judge alone trial.

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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