KIEFEL CJ, GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ
SIMON VUNILAGI APPELLANT
AND
THE QUEEN & ANOR RESPONDENTS
Vunilagi v The Queen
[2023] HCA 24
Date of Hearing: 8 & 9 February 2023 Date of Judgment: 8 August 2023
C13/2022
ORDER
Appeal dismissed.
On appeal from the Supreme Court of the Australian Capital Territory
Representation
B W Walker SC with J S Stellios for the appellant (instructed by Hugo Law Group)
K L McCann with K V Lee for the first respondent (instructed by Office of the Director of Public Prosecutions (ACT))
P J F Garrisson SC, Solicitor-General for the Australian Capital Territory, and H Younan SC with A M Hammond for the second respondent (instructed by Government Solicitor for the Australian Capital Territory)
S P Donaghue KC, Solicitor General of the Commonwealth, with B K Lim and C Ernst for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
N Christrup SC, Solicitor-General for the Northern Territory, with L S Peattie for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Vunilagi v The Queen
Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in Territory courts – Institutional integrity of Territory courts – Where s 68BA inserted into Supreme Court Act 1933 (ACT) in response to COVID-19 pandemic – Where s 68BA(3) allowed Supreme Court of Australian Capital Territory ("ACT") to make order for trial by judge alone for previously excluded indictable offences if satisfied order would ensure orderly and expeditious discharge of Court business and in interests of justice – Where s 68BA(4) required judge to provide written notice of proposed order under s 68BA(3) – Where no requirement for election or consent by accused – Where Justice of Supreme Court proposed to and did order trial by judge alone despite appellant's submissions opposing order – Where appellant tried and convicted under ss 54 and 60 of Crimes Act 1900 (ACT) – Whether s 68BA(4) substantially impaired institutional integrity of Territory courts as function conferred incompatible with position of Territory court as repository of federal jurisdiction.
Constitutional law (Cth) – Trial by jury – Where prior to self-government Crimes Act 1900 (NSW) picked up and applied in ACT as surrogate federal law – Where following self-government Commonwealth law provided Crimes Act 1900 (NSW) shall be taken to be enacted by ACT Legislative Assembly and may be amended and repealed – Where subsequent ACT law provided Crimes Act 1900 (NSW) to be treated as an Act passed by ACT Legislative Assembly – Where ss 54 and 60 of Crimes Act 1900 (ACT) were indictable offences – Whether ss 54 and 60 were laws of the Commonwealth within meaning of s 80 of Constitution – Whether "any law of the Commonwealth" within meaning of s 80 of Constitution includes laws of ACT…
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.
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Details
AGLC
Vunilagi v The Queen [2023] HCA 24
Case
[2023] HCA 24
Decision Date
CaseChat Overview and Summary
The appeal concerned the constitutional validity of a provision inserted into the *Supreme Court Act 1933* (ACT) in response to the COVID-19 pandemic. The appellant, Vunilagi, was convicted of offences under the *Crimes Act 1900* (ACT) following a trial by judge alone, ordered under the impugned provision. Vunilagi argued that this provision, by allowing the Supreme Court of the Australian Capital Territory to order a trial by judge alone for previously excluded indictable offences without the accused's consent, impaired the institutional integrity of Territory courts and thus contravened Chapter III of the Constitution.
The High Court was required to determine two principal legal issues. Firstly, whether the impugned provision, s 68BA(4) of the *Supreme Court Act 1933* (ACT), substantially impaired the institutional integrity of Territory courts, rendering it incompatible with their role as repositories of federal jurisdiction. Secondly, the Court considered whether ss 54 and 60 of the *Crimes Act 1900* (ACT), under which the appellant was convicted, constituted "laws of the Commonwealth" for the purposes of s 80 of the Constitution, which guarantees trial by jury for such offences. This involved examining whether laws enacted by the ACT Legislative Assembly, as a subordinate legislature, could be considered Commonwealth laws in this context, and whether the decision in *R v Bernasconi* (1915) 19 CLR 629 should be revisited.
The High Court held that s 68BA(4) did not substantially impair the institutional integrity of Territory courts. The Court reasoned that the provision was a temporary measure enacted to ensure the orderly and expeditious discharge of court business during a public health emergency, and that the "judge alone" trial mechanism was a legitimate form of case management that did not fundamentally alter the nature of the court's judicial function. Regarding the second issue, the Court found that ss 54 and 60 of the *Crimes Act 1900* (ACT) were not laws of the Commonwealth for the purposes of s 80 of the Constitution. The Court affirmed that while Territory courts exercise federal jurisdiction, laws enacted by a Territory legislature, even if picked up and applied by Commonwealth law, do not become "laws of the Commonwealth" in the sense contemplated by s 80. Consequently, the guarantee of trial by jury under s 80 did not apply to these offences.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, GLEESON AND JAGOT JJ
GAGELER J
GORDON AND STEWARD JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GLEESON AND JAGOT JJ,
GAGELER J,
GORDON AND STEWARD JJ