R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai
[2020] ACTSC 225
•13 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai |
Citation: | [2020] ACTSC 225 |
Hearing Date: | 13 August 2020 |
DecisionDate: | 13 August 2020 |
Before: | Murrell CJ |
Decision: | Trial to proceed before a judge alone. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – COVID-19 Emergency Response Legislation – Court ordered judge alone trial – Four co-accused – Where three accused consent to the order – Right to a fair trial – Right to be tried without unreasonable delay – Orderly and expeditious discharge of court business – Interests of justice |
Legislation Cited: | COVID-19 Emergency Response Act 2020 (ACT) COVID-19 Emergency Response Legislation Amendment Act (No 2) 2020 (ACT) Supreme Court Act 1933 (ACT) ss 68A, 68B, 68BA (repealed), 116, 117 |
Cases Cited: | R v Guarini (SCC 208, 209 of 2019) R v IB (No 3) [2020] ACTSC 103 R v UD (No 3) [2020] ACTSC 139 |
Parties: | The Queen (Crown) Simon Vunilagi (Accused) Isimeli Ilimeleki Vatanitawake (Accused) Josefa Navunisinu Masivesi (Accused) Ratu Jone Macanawai (Accused) |
Representation: | Counsel S Jerome (Crown) K Musgrove (Accused Vunilagi) J Sabharwal (Accused Vatanitawake) S Whybrow (Accused Masivesi) J Campbell (Accused Macanawai) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Accused Vunilagi) Sharman Robertson (Accused Vatanitawake) Boxall Legal (Accused Masivesi) Legal Aid ACT (Accused Macanawai) | |
File Numbers: | SCC 24, 25, 28, 54 of 2020 |
MURRELL CJ:
Introduction
The four co-accused are charged with the following offences that were allegedly committed against a single complainant on 3 November 2019.
The offences charged individually are as follows.
(a)Mr Vunilagi: seven counts of sexual intercourse without consent, contrary to s 54 of the Crimes Act 1900 (ACT) (Crimes Act) and one count of act of indecency, contrary to s 60 of the Crimes Act.
(b)Mr Masivesi: one count of sexual intercourse without consent and two counts of act of indecency.
The offences charged in company are as follows.
(a)Mr Vunilagi and Mr Vatanitawake: two counts of sexual intercourse without consent in company.
(b)Mr Macanawai and Mr Vunilagi: three counts of sexual intercourse without consent in company.
(c)All accused: one count of sexual intercourse without consent in company.
The trial is listed to commence on 7 September 2020 with an estimate of three weeks.
Pursuant to s 68BA(3) of the Supreme Court Act 1933 (ACT) (SCA), on 18 June 2020, I proposed to make an order that the trial be heard by a judge alone and invited the parties to make submissions.
The Court received written submissions from some parties. The Crown opposed the order. Mr Vunilagi and Mr Vatanitawake opposed the order, Mr Masivesi neither consented to nor opposed the order, and Mr Macanawai provided no submissions.
Mr Masivesi, Mr Vatanitawake and Mr Macanawai now support the making of the order as they understand that the trial cannot proceed as a jury trial during current pandemic restrictions. Mr Vunilagi continues to oppose the order.
Mr Vunilagi has been granted bail. The other co-accused have been in custody since their arrest in November 2019 solely in relation to the charges in question.
Crown case
The Crown case is that the complainant was heavily intoxicated when she met the four accused at Mooseheads Bar in the early hours of 3 November 2019. They were not previously known to her. The complainant and the accused caught a taxi to Mr Masivesi's house.
The complainant did not want to have sex with any of the accused. However, over a couple of hours, they took turns in sexually assaulting her in a bedroom. After she was escorted to the toilet, she was sexually assaulted again in front of the group of accused in the lounge room and then again in the bedroom.
The complainant escaped from the house and sought assistance from a passer-by. She made an immediate complaint and was forensically examined.
For all counts on the indictment, the Crown will contend that, under s 67 of the Crimes Act, the complainant's consent was negated by the effect of alcohol intoxication.
Mr Vunilagi and Mr Macanawai each gave a taped record of interview to the police concerning relevant events. Mr Vunilagi said that there was limited sexual interaction involving the complainant, himself, and other men, but it was consensual.
The SCA provisions
The passage of the public health emergency declarations and the impact of the COVID-19 pandemic on jury trials in the ACT was outlined in R v IB (No 3) [2020] ACTSC 103 (IB) at [20]–[27].
In late March 2020, the Court suspended all further jury trials. The last trial was R v Guarini (SCC 208, 209 of 2019), which ran from 23 to 27 March 2020.
On 2 April 2020, the ACT Legislative Assembly enacted the COVID-19 Emergency Response Act 2020 (ACT), which broadened the availability of judge alone trials during the “COVID-19 emergency period” from 16 March to 31 December 2020. As I noted in IB (at [26]):
It inserted sub-s (3A) into s 68B of the SCA, enabling trial by judge alone at the election of an accused person regardless of whether the offence is an “excluded offence”; previously, “excluded offences” could not be tried by a judge alone. It also added s 68BA, enabling the Court to order trial by a judge alone for all offences even if the accused does not consent.
The relevant “emergency” and general provisions of the SCA are:
68ATrial by jury in proceedings
Criminal proceeding shall be tried by jury, except as otherwise provided by this part.
68B Trial by judge alone in certain committal 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
…
(3A) During the COVID-19 emergency period, this section also applies to a criminal proceeding—
(a) that begins before, on or after the commencement day; and
(b) for an excluded offence.
68BA Trial by judge alone in criminal proceedings—COVID-19 emergency period
(1) This section applies to a criminal proceeding against an accused person for an offence against a territory law if the trial is to be conducted, in whole or in part, during the COVID-19 emergency period.
(2) To remove any doubt, this section applies—
(a) to a criminal proceeding—
(i) that begins before, on or after the commencement day; and
(ii) for an excluded offence within the meaning of section 68B(4); and
(b) whether or not an election has been made by the accused person under section 68B, including before the commencement day.
(3) The court may order that the proceeding will be tried by judge alone if satisfied the order—
(a) will ensure the orderly and expeditious discharge of the business of the court; and
(b) is otherwise in the interests of justice.
(4) Before making an order under subsection (3), the court must—
(a) give the parties to the proceeding written notice of the proposed order; and
(b) in the notice, invite the parties to make submissions about the proposed order within 7 days after receiving the notice.
(5) In this section:
…
COVID-19 emergency period means the period beginning on 16 March 2020 and ending on—
(a) 31 December 2020; or
…
On 18 May 2020, the Court announced that, from 15 June 2020 jury trials would recommence on a limited basis. At no time was it stated, nor was it envisaged, that during the pandemic all criminal trials would be able to proceed before a jury.
On 8 July 2020, s 68BA was repealed by the COVID-19 Emergency Response Legislation Amendment Act (No 2) 2020 (ACT). The explanatory memorandum to the bill stated that (at 3):
The repeal of section 68BA is appropriate given the COVID-19 pandemic is well controlled both in the ACT and in Australia and it is expected that jury trials will recommence in the Supreme Court.
On 9 July 2020, that Act commenced. It repealed section 68BA and inserted sections 116 and 117. Those sections provide:
116 Trial by judge alone under repealed law—order proposed
(1) This section applies if—
(a) before the commencement day, the court has given notice under the repealed law, subsection (4) about a proposed order under the law; and
(b) immediately before the commencement day, the court has not made a decision about making an order under the repealed law, subsection (3).
(2) The court may make an order under the repealed law despite the repeal of the law.
117 Trial by judge alone under repealed law—order made
An order made under the repealed law continues to have effect despite the repeal of the law.
As the s 68BA(3) notice was issued to parties prior to the commencement of the amendment legislation and the repeal did not operate retrospectively, the above 68BA emergency provisions apply to the present application.
General considerations
For the reasons explained in IB at [46]–[49], the right to a fair trial does is not a right to a jury trial; rather, it is a right to a fair and public hearing by a competent, independent and impartial tribunal established by law.
Nevertheless, it is accepted that, where it is possible for a jury trial to proceed with reasonable expedition and the accused prefers a jury trial, then that is the course that should be followed. As I said in IB (at [53]):
Trial by jury has the obvious and time-honoured benefit that, in serious cases, guilt is determined by a representative body of ordinary and anonymous citizens, protecting the courts from controversy and securing community support for, and trust in, the administration of criminal justice.
Regrettably, the pandemic means that, in this case, it is not possible for a jury trial to proceed with reasonable expedition.
Section 68BA(3)(a): orderly and expeditious discharge of the business of the Court
As I noted in IB (at [106]):
[Section] 68BA acknowledges the obvious proposition that the orderly and expeditious discharge of the Court’s business during the COVID-19 emergency (or any period) serves “the interests of justice”. The s 68BA(3)(b) expression “otherwise in the interests of justice” directs attention to matters other than the expeditious conduct of the Court’s business that serve or detract from “the interests of justice”.
(emphasis in original)
The submissions of the Crown and Mr Vunilagi proceeded on the basis that, if the order was not made, then the Court would be able to run the matter as a jury trial. That assumption is mistaken.
The Court adheres to requirements that a distance of 1.5 metres be maintained within the court precincts and there be no more than one person in every four square metres of internal space.
Consequently, on the advice of the Sheriff, it is not possible to empanel a jury in circumstances where there are more than two co-accused, bearing in mind that each accused is entitled to make eight challenges.
Further, it is impossible to appropriately arrange the courtroom to accommodate the ten legal representatives that would be associated with a trial of four co-accused (plus the co-accused themselves) while maintaining a proper distance between lawyers, accused, and jurors, who would be accommodated in the public gallery. This difficulty is illustrated by the arrangements that have been made in R v Roussakis and Ors (SCC 45, 46, 47, 48 of 2019), a three-week judge alone trial of four co-accused that is running before Mossop J. In that case, to maintain social distancing, some legal representatives have been accommodated in the public gallery. The need to enforce distancing between jurors, legal representatives, and the co-accused would pose an ongoing challenge.
When considering whether it is practicable to run a jury trial, another consideration is the length of the trial. If, during a trial, an accused, a lawyer, or a juror develops symptoms consistent with a cold of flu, then that person must immediately isolate and await the result of a COVID-19 test. ACT Health has declined to prioritise test results to assist the Court.
The longer a trial runs and the greater the number of persons involved in the trial, the greater the likelihood that there will be one or more significant delays associated with COVID-19 testing, which ultimately results in the discharge of a juror or a jury. For this reason, it would be desirable to empanel more than 12 jurors, exacerbating the difficulties associated with empanelment and accommodation within the courtroom.
Obviously, these difficulties do not arise in a judge alone trial, where counsel and the parties can appear via audio-visual link and the trial can be adjourned rather than aborted.
As a jury trial requires the Court to utilise two courtrooms per trial while continuing to conduct its other business, the Court is limited to running two jury trials concurrently.
The Court's limited capacity to run jury trials means that the orderly and expeditious discharge of the business of the Court requires the Court to focus on those trials that are more likely to run to a conclusion, i.e. short trials involving only one (or, at most, two) accused, rather than devoting expensive resources to trials that are likely to be aborted.
As a consequence of the reintroduction of jury trials in shorter matters, on 27 July 2020, Elkaim J revoked a 68BA(3) notice that he had previously given in the matter of R v UD (No 3) [2020] ACTSC 139, and a similar approach has been taken in other matters in relation to which a jury trial will be possible.
However, this matter cannot be run as a jury trial until the current distancing and spacing requirements are lifted or, at least, substantially eased. There is no prospect of that occurring in the short to medium term.
Section 68BA(3)(b): otherwise in the interests of justice
The Crown submitted that it was not otherwise in the interests of justice that the matter proceeds before a judge alone because:
(a)Trial by jury is a “fundamental pillar of our justice system” and an “ancient right” which hitherto has been disregarded only with the consent of the accused.
(b)One of the four accused opposes the proposed order.
(c)The allegations are very serious and, if convicted, the accused will inevitably be sentenced to lengthy periods of full-time imprisonment before being deported from Australia.
(d)The charges relate to “excluded offences” and, ordinarily, excluded offences must be tried before a jury.
(e)The issue of the complainant's credibility will be central at the trial and juries are superior to judges when it comes to assessing credibility.
The Crown noted the competing public interests that:
(f)The matter no doubt weighs heavily on the complainant and it is in her interests that the matter be resolved expeditiously; justice delayed is justice denied.
(g)Three of the accused are in custody.
Mr Vunilagi relied upon considerations (a) to (e) above. He emphasised the advantage of having witness credibility determined by 12 individuals who brought their different life experiences and perspectives to bear, rather than by a single fact finder.
For the following reasons, I find that it is otherwise in the interests of justice to order that the trial proceed before a judge alone:
(a)Although trial by jury is the desirable way of trying serious criminal matters, it is unhelpful to employ emotive expressions such as “ancient right”, which may derail focus from the critical right to a fair trial and the related human right to a timely trial.
(b)The present trial cannot proceed before a jury until current distancing and spacing restrictions are lifted or substantially eased. This means that, if they are obliged to wait for a trial before a jury, three accused will be detained in custody for an indefinite period while they await the easing of the pandemic restrictions.
(c)The three accused who are in custody have not waived their human right under s 22(2)(c) of the Human Rights Act 2004 (ACT) to be tried without unreasonable delay. They now support the making of the order. Only one accused now opposes the making of the order.
(d)As the critical issue in the trial will be complainant's credibility, all else being equal, it would be preferable that the matter be tried before 12 jurors, who could bring their collective experience and common sense to bear on the issue. However, a judge is also well placed to assess credibility: IB at [56]–[57].
(e)The ACT Legislative Assembly has decided that the requirements that excluded offences be tried before a jury should be lifted during the pandemic. During the pandemic, accused persons may elect for a judge alone trial despite the fact that they have been charged with excluded offences. The original rationale for excluding certain offences as matters in relation to which an accused could elect to be tried by a judge alone was that the conviction rate for judge alone trials in such matters was considered to be extremely low. Consequently, it cannot be inferred that the limited reinstatement of trial by judge alone for excluded offences (whether by election or requirement) is likely to result in a greater conviction rate; it is unlikely to be contrary to the interests of the accused.
(f)It is in the interests of the complainant and other witnesses that the matter be resolved expeditiously; justice delayed is justice denied.
(g)Although the charges are very serious and, if convicted, the accused will no doubt face lengthy sentences of full-time imprisonment, that is true of many offences that may be tried before a judge alone, including excluded offences tried by election before a judge alone during the pandemic.
In its written submissions, the Crown noted the possibility of a constitutional challenge to s 68BA, but on this application neither the Crown nor the accused sought to advance such an argument.
The trial is to proceed before a judge alone.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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