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:

1. 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.

1. 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.

1. My conclusion was that, subject to a final decision on the validity issue, a judge alone trial should be ordered.

1. 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).

1. 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.

1. 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”.

1. 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.

1. 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.

1. 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 3) [2020] ACTSC 103 and my decision in R v Coleman [2020] ACTSC 97.

1. With the exception of one matter, and subject to the details of the individual cases, the approaches taken in the three decisions are consistent. The one matter is concisely stated by the Chief Justice at [108] and [109] of IB:

It was submitted that significant weight should attach to the accused’s attitude to a trial by judge alone. In UD (No 2), Elkaim J described the accused’s lack of the consent to a judge alone trial as a “powerful reason” why such a trial should not be ordered: at [53]. With respect to his Honour, I disagree.

Section 68B (as amended for the emergency period) means that no s 68BA question will arise where an accused person consents to trial by judge alone. Section 68BA is designed to deal with the circumstance that an accused person does not consent to trial by judge alone; the opposition of the accused to the order is assumed. Consequently, while regard may be had to the fact that the accused does not consent to trial by a judge alone, much more weight should be attached to whether there are good reasons for the accused’s attitude.

1. The accused, in relisting the matter, has submitted that his lack of consent is good reason for my earlier conclusion to be reconsidered. Whether viewed as a “powerful reason” or, as envisaged by the Chief Justice, a fact to which regard may be had, I think the accused’s wishes remain at least relevant.

1. When this relevance is considered against the background of the press release, then provided the envisaged trial falls within the limitations of the press release, I think there is sound cause for reconsideration. I think the press release should be set out:

Commencing 15 June 2020, the Supreme Court will resume jury trials in cases where Court facilities and resources mean that social distancing and other health safety measures can be achieved for jurors, accused persons, witnesses, legal practitioners, and Court staff. All Court attendees will be required to cooperate with measures deemed appropriate by Court and security staff, including temperature testing. For a significant number of matters (including matters involving multiple accused), it will not be feasible to conduct jury trials in the near future.

1. There is only one accused in the current matter. The Court has been informed by an independent expert that jury trials, subject to certain restrictions, may be safely conducted. The parties have informed me that they are not aware of any consideration which would place the proposed trial outside of the bounds of the press release.

1. I am therefore of the view that it would be appropriate for me to reconsider my earlier conclusion and to permit this matter to proceed by way of a jury trial.

1. In written submissions received today the accused has requested that the notice issued by the Registrar be withdrawn. I do not think that step is necessary. The notice is simply a step in the path to the making of a final order. The critical step is the making of the order.  

1. When I raised with the parties the setting down of the trial, I was informed that the Crown’s preference was to run at least one other of the “UD/TF” trials before the trial to which this decision relates. The first of these other trials has been referred to as trial E.1. It has an estimate of 4 to 6 days. The parties have told me that in respect of this trial, none of the limitations referred to in the press release will be breached.

1. Accordingly, and noting that no judge alone order has been made in trial E.1, it should be set down to commence on 31 August 2020, to be followed by the remainder of the trials. 

1. There has been no representation today on behalf of TF. If the orders made below are for any reason opposed by TF, I grant TF liberty to apply for a variation.

Orders

1. 1.       Trial F (the subject of R v UD (No 2) [2020] ACTSC 90) is to proceed before a

   judge and jury.

   2. Trial E.1 is to commence on 31 August 2020, to be followed by the balance of the outstanding trials of UD and TF, whether individually or as co-accused. 

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 29 May 2020