Vunilagi v The Queen

Case [2021] ACTCA 12


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Vunilagi v The Queen

Citation:

[2021] ACTCA 12

Hearing Dates:

17 – 18 May 2021

DecisionDate:

9 November 2021

Before:

Mossop, Loukas-Karlsson and Abraham JJ

Decision:

See [279]

Catchwords:

CRIMINAL LAW – APPEAL – Whether verdicts were unreasonable – whether trial judge could be satisfied of the appellant’s guilt beyond reasonable doubt – where challenge focussed on the reliability of the complainant’s evidence – held: ground dismissed – whether trial judge impermissibly and unfairly introduced evidence into reasoning – evidence to be considered in context – held: ground dismissed.

CONSTITUTIONAL LAW – APPEAL – Order for trial by judge alone without an accused’s consent – challenge to the validity of s 68BA of the Supreme CourtAct 1933 (ACT) – whether provision invalidated by Kable doctrine because it compromised the institutional integrity of the Supreme Court – whether the provision was beyond the power of the Legislative Assembly because the reference to “Supreme Court” in s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) required trials on indictment to be by jury – whether s 68BA is invalid by reason of incompatibility with s 80 of the Constitution – held: provision not invalid

Legislation Cited:

ACT Supreme Court (Transfer) Act 1992 (Cth)

Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 22, 48A, Part VA
Australian Capital Territory Supreme Court Act 1933 (Cth), s 11
Constitution (Cth), ss 71, 73, 80, 122
Court Procedures Rules 2004 (ACT), r 5531
COVID-19 Emergency Response Act 2020 (ACT)
COVID-19 Emergency Response Legislation Amendment Act 2020(No 2) (ACT)
Crimes Act 1900 (ACT), ss 54, 60, 281
Crimes Act 1900 (NSW), s 395
Criminal Law Amendment Act 1883 (NSW)
Criminal Law and Evidence Amendment Act 1891 (NSW)
Criminal Procedure Act 1986 (NSW), s 132(7)
Evidence Act 2011 (ACT), s 144
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Part 4.3
Juries Ordinance 1932 (ACT)
Juries Ordinance 1967 (ACT)
Jury Act 1901 (NSW)
Magna Carta (1297) 25 Edw 1 c 29, s 29
Public Health Act 1997 (ACT)
Seat of Government Supreme Court Act 1933 (Cth)

Supreme Court Act1933 (ACT), ss 68B, 68BA, 68C(2), 115, 116, 117

Cases Cited:

Alqudsi v The Queen [2016] HCA 24; 258 CLR 203

Attorney-General (NT) v Emmerson [2014] HCA 13; 253 CLR 393
Bropho v Western Australia (1990) 171 CLR 1
Cameron v The Queen [2002] HCA 6; 209 CLR 339
Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248
Cheatle v The Queen (1993) 177 CLR 541
Doney v The Queen [1990] HCA 51; 171 CLR 207
Farrell v The Queen [1998] HCA 50; 194 CLR 286
Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121; 277 FLR 61
Fennell v The Queen [2019] HCA 37; 93 ALJR 1219
Fittock v The Queen [2003] HCA 19; 217 CLR 508
Filippou v The Queen [2015] HCA 29; 256 CLR 47
Ford…

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AGLC
Vunilagi v The Queen [2021] ACTCA 12
Case
[2021] ACTCA 12
Decision Date

CaseChat Overview and Summary

The appeal concerned Saimoni Vunilagi, Ismeli Vatanitawake, and Josefa Masivesi (the Appellants) against the Respondent, The Queen, following their convictions in the Supreme Court of the Australian Capital Territory. The Appellants challenged the reasonableness of the verdicts against them and argued that the trial judge had impermissibly introduced evidence into their reasoning. A further ground of appeal, raised by the intervenor, the Attorney-General of the Australian Capital Territory, concerned the constitutional validity of s 68BA of the *Supreme Court Act 1933* (ACT), which permitted trials by judge alone without the accused's consent.

The legal issues before the Court of Appeal were whether the verdicts reached by the trial judge were unreasonable, and whether the trial judge's reasoning unfairly incorporated evidence. Additionally, the Court was required to determine if s 68BA of the *Supreme Court Act 1933* (ACT) was invalid. This involved considering whether the provision compromised the institutional integrity of the Supreme Court under the *Kable* doctrine, whether it exceeded the Legislative Assembly's power due to the implication of jury trials in s 48A of the *Australian Capital Territory (Self-Government) Act 1988* (Cth), and whether it was incompatible with s 80 of the Commonwealth Constitution.

The Court dismissed the grounds of appeal relating to the unreasonableness of the verdicts and the trial judge's reasoning, holding that the evidence was to be considered in its proper context. Regarding the constitutional challenge, the Court found that s 68BA of the *Supreme Court Act 1933* (ACT) was not invalid. The Court reasoned that the provision did not offend the *Kable* doctrine, did not exceed the Legislative Assembly's legislative power, and was not incompatible with s 80 of the Constitution. The Court's decision affirmed the validity of trials by judge alone in the ACT under the impugned provision.

Orders

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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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