SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v UD (No 2) Citation: [2020] ACTSC 90 Hearing Date: 16 April 2020 Decision Date: 20 April 2020 Before: Elkaim J Decision: See [76] 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 – orderly and expeditious discharge of court business – interests of justice – fair trial Legislation Cited: Administration of Justice (Emergency Provisions) Act 1939 (UK)Criminal Procedure Act 1986 (NSW) s 132

COVID-19 Emergency Response Act 2020 (ACT)Human Rights Act 2004 (ACT)

Supreme Court Act 1933 (ACT) ss 13(2) 68B, 68BA Cases Cited: Brown, Michael John v Director of Public Prosecutions (NSW) [2018] NSWCCA 94

Dupas v The Queen [2010] HCA 20; 241 CLR 237

Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197

Mickelberg v The Queen (No 3) (1992) 8 WAR 236

R v Belghar [2012] NSWCCA 86; 217 A Crim R 1

R v UD [2020] ACTSC 88 Texts Cited: David Green, ‘The extraordinary legal situation of the Coronavirus lock-down’ on David Green, The Law and Policy Blog (30 March 2020) <https://davidallengreen.com/2020/03/>

Fiona Hanlon, ‘Trying serious offences by judge alone: towards an understanding of its impact on judicial administration in Australia’ (2014) 23 Journal of Judicial Administration 137

Justice Phillip Priest, ‘Crime and Evidence’ (2020) 94 Australian Law Journal 110 Parties: The Queen (Crown) UD (Accused) Representation: Counsel A Williamson (Crown) B Morrisroe (Accused)

Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) File Numbers: SCC 282 of 2019

ELKAIM J:

1. Prior to the amendments made this month, s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) allowed a person facing criminal proceedings in the Supreme Court to elect to be tried by a judge alone rather than by a judge and jury. Certain offences were excluded from this option.

2. The COVID-19 Emergency Response Act 2020 (ACT) introduced amendments to the above provisions. Sections 68B and 68BA of the Supreme Court Act now read as follows:

68B Trial by judge alone in certain criminal 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

(b) the person produces a certificate signed by a legal practitioner stating that—

(i) the legal practitioner has advised the person in relation to the election; and

(ii) the person has made the election freely; and

(c) the election and certificate are filed in the court before—

(i) the person, or the person’s legal representative, knows the identity of the judge for the person’s trial; and

(ii) any time limit prescribed under the rules; and

(d) if there is more than 1 accused person in the proceeding—

(i) each other accused person also elects to be tried by a judge alone; and

(ii) each other accused person’s election is made in relation to all offences for which that person is to be tried in the proceeding; and

(iii) none of the offences for which any other accused person is to be tried is an excluded offence.

(2) An accused person who elects to be tried by a judge alone may, at any time before the person is arraigned, elect to be tried by a jury.

(3) If an accused person makes and then withdraws an election, the person may not make another election.

(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.

(4) In this section:

COVID-19 emergency period means the period beginning on 16 March 2020 and ending on—

(a) 31 December 2020; or

(b) if another day is prescribed by regulation—the prescribed day.

excluded offence means an offence against a provision mentioned in an item in schedule 2 (Trial by judge alone—excluded offences), part 2.2, column 3 of an Act mentioned in the item, column 2.

(5) This subsection, subsection (3A) and subsection (4), definition of COVID-19 emergency period expire 12 months after the day this subsection commences.

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:

commencement day means the day the COVID-19 Emergency Response Act 2020, section 4 commences.

COVID-19 emergency period means the period beginning on 16 March 2020 and ending on—

(a) 31 December 2020; or

(b) if another day is prescribed by regulation—the prescribed day.

(6) This section expires 12 months after the commencement day.

3. The amendments commenced on 8 April 2020.

4. On 9 April 2020, pursuant to s 68BA(4), the Registrar gave notice to the Crown and to the accused that the Court proposed to make an order (the ‘proposed order’) that the accused’s forthcoming trial (SCC 282 of 2019) would be tried by judge alone.

5. Following receipt of the notice both the accused and the Crown indicated that they would like to make submissions about the proposed order. After the provision of written submissions, oral submissions were made on 16 April 2020.

6. The accused opposes the proposed order. He wishes his guilt or innocence to be decided by a jury. The Crown joined the accused in opposing the proposed order.

7. Before proceeding further it is important for me to note that the written submissions of the parties went beyond considerations arising only from the above sections. The accused challenged the validity of the new laws, submitting they were unconstitutional and also contrary to the Human Rights Act 2004 (ACT) (the HRA).

8. When the matter came before me on 16 April 2020 the accused made an application, pursuant to s 13(2) of the Supreme Court Act, that the matter be referred to the Full Court. Ultimately the application was opposed by the Crown and by the Solicitor-General, who appeared on behalf of the ACT Attorney-General.

9. Consistent with the approach suggested by the Crown I refused the accused’s application and continued to hear submissions related to the new legislation. The challenges to its validity were stood over pending this decision and on the understanding that, if I was against the accused, I would not proceed to a judge alone trial without giving the accused the opportunity to continue his arguments about validity both before me and on appeal (R v UD [2020] ACTSC 88). It was also implicit in the approach that I took that I proceeded on the assumption that the legislation is valid, and that obviously if it was found to be otherwise, then my conclusions here would similarly fall away.

10. Returning then to s 68BA(3), I think subsection (a) is essentially self-explanatory. The business of the court is wide-ranging but at its core is the timely conclusion of civil and criminal litigation. The latter of course includes the running of trials, both with a jury and without, intended to determine the guilt or otherwise of accused persons. This aspect of court business has widespread ramifications, not only for the accused, but, inter alia, for ensuring public confidence in the judicial system, for the needs of victims of crime to see perpetrators of harm against them brought to justice and for the management of the prison system, which has a limited capacity to securely and safely retain people in custody.

11. The submissions of the parties generally did not cavil with any of the above considerations relating to s 68BA(3)(a). Their efforts were primarily directed at subsection (b).

12. I think the starting point, in respect of subsection (b), is the following concise definition of the interests of justice by Malcolm CJ in Mickelberg v The Queen (No 3) (1992) 8 WAR 236, at 251:

The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest in the due administration of justice.

13. The final sentence of this definition encapsulates what is already delineated by

s 68BA(3)(a). What is important for subsection (b) is whether or not an accused person who wishes to be tried by a jury can receive a fair trial from a judge sitting without a jury.

14. I think the issue just posed is answered through three questions:

(a) What consideration should the Court give to the attitude of the parties?

(b) As a general proposition, can a judge alone trial be as fair to an accused as a trial before a judge and jury?

(c) If the answer to the preceding question is “Yes”, is there anything particular about the accused or the circumstances of his or her case that renders a trial by judge alone unfair?

What consideration should the Court give to the attitude of the parties?

15. This question goes to the core of the new legislation. Generally, a court will seldom interfere when the parties to a dispute, be it criminal or civil, agree on an order to be made by the court. There are two points of distinction with such a circumstance and the present proceedings:

(a) Normally an order is sought by one or more of the parties. In this situation the proposed order is generated by the Court.

(b) Much more significantly, it is the very essence of the new legislation that the consent of the accused or the Crown is not a requirement for the making of the proposed order.

16. I think it can be said with almost certainty that, in ‘normal times’ a judge, if legislation otherwise permitted, would rarely find that it was in the interests of justice for there to be a judge alone trial against the wishes of an accused person.

17. These are not normal times. The new legislation is a reaction to the COVID-19 emergency. The new provisions are limited to the “emergency period” which stretches from 16 March 2020 to 31 December 2020, or such other end date as is prescribed by regulation.

18. It is to be recalled that subsection 3(a) recognises an assumption that the business of the Court should continue during the emergency period.

19. The constraints caused by the emergency are important. The public is obliged, without good reason, not to leave home. When outside the home people must maintain a separation between them of at least 1.5 metres. These facts alone render jury trials very challenging, if not impossible.

20. A panel of a sufficient number to enable the selection of a jury could not attend court and maintain the required separation. I note that in the ACT, putting aside members of the jury panel who are excused for assorted personal reasons, each party is entitled to challenge eight potential jurors without cause.

21. Having been selected, a jury could not be expected to maintain separation in the absence of significant and impractical logistical rules. Court staff would have difficulty ensuring separation, let alone protecting their own welfare. Corrections officers would be equally impeded in their duties.

22. Every State and Territory in Australia has recognised these constraints and suspended jury trials. So far only the ACT has enacted legislation allowing for ‘enforced’ judge alone trials.

23. It is not in the interests of justice or the administration of justice (the business of the court) that persons, especially those in custody, wait for excessively long periods to come to trial. The criminal justice system is always at pains to avoid backlogs in criminal trials. A backlog is almost synonymous with a failure of the system.

24. This is for good reason. Innocent persons languishing in prison, and even on bail, awaiting trial are being denied justice. Guilty persons whose time in custody exceeds their ultimate sentence have also been denied justice.

25. It might be said that any injustice to an individual awaiting trial, and in custody, could be countered by allowing the individual to be released on bail pending his or her trial. There are no doubt cases where that would be appropriate. But it would not be appropriate where the relevant offence is very serious, where victims and witnesses would be at risk and where further offences would be reasonably contemplated.

26. There are also other persons, besides the accused, whose interests fall within the general statement quoted above from Mickelberg. Primarily, there are the victims who are waiting for criminals who have inflicted harm upon them, be it physical or mental or financial, to be brought to justice. The victims and witnesses generally would no doubt prefer to give their evidence as soon as possible. The fact that they can refresh their minds from statements is not always an answer to a fading memory. In addition, the anxiety attached to waiting to give evidence in a courtroom is a relevant factor. All of these matters fall within the bounds of public interest.

27. During World War II jury trials continued in the United Kingdom. Judge alone trials were not an option. However, to meet the circumstances imposed by the conflict, juries were reduced from 12 to 7 (other than in the most serious cases) and the jury eligibility age was raised from 60 to 65 (Administration of Justice (Emergency Provisions) Act 1939 (UK)).

28. Britain is currently, but more acutely, facing the same crisis as exists in Australia. Mr David Green, a lawyer and journalist, talking generally about the imposition of strict laws to meet the emergency, said this:

Three fundamental freedoms - freedom of movement, freedom of association and freedom of worship - have all been abolished for six months by a statutory instrument which has been neither scrutinised nor voted on by members of Parliament…If it were not for this public health emergency, this situation would be the legal dream of the worst modern tyrant. Everybody under control, every social movement or association prohibited, every electronic communication subject to surveillance. This would be an unthinkable legal situation for any free society. Of course, the public health emergency takes absolute priority. But we should also not be blind to the costs (David Green, ‘The extraordinary legal situation of the Coronavirus lock-down’ on David Green, The Law and Policy Blog (30 March 2020) <https://davidallengreen.com/2020/03/>).

29. The new laws have been enacted by the ACT Legislative Assembly. But that is not the distinguishing point. The significant point made by Mr Green is that “the public health emergency takes absolute priority”. Each and every aspect of daily life is now dictated by the emergency. This means that the emergency enables the imposition of laws and regulations previously not contemplated.

30. If it is in the interests of justice that criminal trials should continue then they must continue within the constraints imposed by the public health emergency. If the only means of achieving this end is through judge alone trials, then, subject to unique factors in individual cases, judge alone trials should be ordered. The only caveat to this should be that a judge alone trial that would not enable an accused person to have a fair trial should not be ordered.

31. Ultimately then on this question, the attitude of the parties is a factor that a judge will take into account but it is not determinative, provided a judge alone trial fits within the scope of s 68BA(3).

Can a judge alone trial be as fair to an accused as a trial before a judge and jury?

32. Judge alone trials are not new. They have been allowed in the ACT since September 1993. In 2011, amendments were made to s 68B to exclude certain offences from being tried by a judge alone. Of course, consistently through the legislation prior to the recent amendments, the consent of the accused to a judge alone trial was always necessary.

33. The fairness of a judge alone trial has received considerable comment both in decisions of courts and through academic analysis and comment.

34. In R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 the New South Wales Court of Criminal Appeal considered an appeal by the Crown against an order by a District Court judge allowing an accused’s application for a judge alone trial. The application had been made under s 132 of the Criminal Procedure Act 1986 (NSW). McClellan CJ at CL, commencing at [23], gave a comprehensive analysis on the origins of trials by jury and the more recent permission for trials by a judge alone. His Honour, at [38], quoted from the decision of the High Court in Dupas v The Queen [2010] HCA 20; 241 CLR 237, including this passage:

Whilst the criminal justice system assumes the efficacy of juries, that does not involve the assumption that their decision-making is unaffected by matters of possible prejudice. In Glennon, Mason CJ and Toohey J recognised that “[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.” What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.

(Footnotes omitted)

35. After examining decisions in other jurisdictions, McClellan CJ at CL concluded in this way:

112 As the reasons of Martin CJ in Arthurs (Arthurs v State of Western Australia [2007] WASC 182) make plain, the Chief Justice considered the requirement for a judge to give reasons to be a significant factor when considering where the interests of justice lie. To my mind the opportunity which a reasoned judgment affords to the accused and to the public to understand the steps in the reasoning process of the decision-maker, compared with the inscrutability of the jury's decision, will depending upon all the circumstances, be a factor which is relevant to the decision as to whether to order a judge-alone trial. However, it is but one factor and the weight to be given to it will depend upon the nature of the issues to be determined in the trial. If the trial will involve complex engineering, scientific or medical issues it may be more readily concluded that a verdict accompanied by the reasons of the trial judge will enhance the interests of justice, both in relation to the accused and the maintenance of confidence in the criminal justice system. It would inevitably facilitate an appeal if the trial judge has erred.

113 As Martin CJ remarked in Arthurs, the recent trend in many areas has been to require a decision-maker to provide reasons for his or her decision. The giving of reasons requires the decision maker to consider the evidence, follow accepted methods of reasoning, and express the reasons for the decision in a manner which can be understood and analysed by others. If accepted to be sound, published reasons must serve to enhance confidence in the process of the law. If not sound, they can be challenged and, where relevant error is identified, the decision can be corrected.

114 Whether a jury has correctly understood the facts and correctly applied the law can never be authoritatively determined. However, it must be remembered that the jury's verdict is a "community decision." The jury has a right to bring in a perverse verdict and acquit an accused: Bushell's Case (1670) 124 ER 1006; R v Shipley (1784) 99 ER 774 at 824; Chandler v Director of Public Prosecutions (UK) [1964] AC 763 at 804. Whether that right is compatible with contemporary notions of justice, balancing the interests of an accused and the State, and whether it is still generally accepted by the community, is of course unknown. However, any accused person who believes that right of a jury may be to their advantage is unlikely to apply for a judge-alone trial. Notwithstanding the significance of these issues, as I have discussed, the decision in this case does not turn upon them.

36. Basten JA, in Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197discussed some of the principles to be applied by a judge making a decision about the appropriateness of a judge alone trial, starting at [9]:

9 It may be right to say that a trial judge faced with an application under s 132 should not approach the task imposed by the provision by reference to “presumptions” or “assumptions”. That language may be inapt. However, the task cannot be assayed without bearing in mind that trial by jury is the conventional approach and, in the absence of an order under s 132, is mandated by s 131 of the Criminal Procedure Act.

10 It is also important to bear in mind the nature of the public interest which underpins the standard procedure of trial by jury. It was succinctly articulated by McHugh J in Fittock v The Queen, by reference to the constitutional provision:

“The purpose of s 80 is to protect the citizen from the executive and judicial power of the Commonwealth by ensuring that trials on indictment will be determined by representatives of the community who are unanimous in their verdicts.”

Beyond such statements, applications under s 132 do not require a generic assessment of the perceived benefits and disadvantages of trial by jury as against trial by judge alone. Counsel should not be expected to engage in such a task, nor should the judge determining the application, nor should this Court on an appeal. It is sufficient to note that, as drafted, s 132 gives weight to the importance of the application of objective community standards in the resolution of a range of factual issues, some only of which are expressly identified. That is a consideration which favours trial by jury, in accordance with underlying principle. What is required is an assessment of the particular circumstances of the case.

11 Without seeking to be restrictive of the circumstances in which such orders are appropriate, it is helpful to note that the decided cases reveal judge alone trials may be preferable in relation to lengthy complex trials involving significant disputes between experts and in cases where the judge is not satisfied that a fair trial can be achieved with a jury, perhaps because a particularly horrendous crime has inflamed public sentiment in a small community. On the other hand, it is clear that an order is not to be made because the judge has a preference for trials without a jury because, for example, a reasoned judgment is more transparent than a jury verdict, the trial is likely to be shorter and less expensive to run, or a “correct” result is more likely.

(Footnotes omitted)

37. The principles enunciated above must be read against the background that, under s 132, a judge alone trial will never be ordered where the accused opposes the order. What can however, for present purposes, be taken from the above principles is that a jury trial is the norm and a judge alone trial will only be ordered where particular circumstances make it more preferable.

38. Basten JA commented on his decision in Farrugia, in Brown, Michael John v Director of Public Prosecutions (NSW) [2018] NSWCCA 94, at [30] and [31]:

30 As I sought to explain in Director of Public Prosecutions (NSW) v Farrugia, it has long been considered a fundamental aspect of the administration of criminal justice that a trial on indictment be conducted before a jury of 12 persons. That procedure was prescribed with respect to Commonwealth offences by s 80 of the Constitution. It remains the usual method of trial in this State, as reflected in s 131 of the Criminal Procedure Act.

31 This principle has two underlying rationales. The first is protective of the accused person. That such a justification remains is reflected in s 132(3), prohibiting a trial by judge alone in the absence of informed agreement of the accused. Secondly, there is the value accorded to the involvement of the representatives of the community in the determination of the guilt or innocence of persons accused of serious crime. The direct involvement of the community is a mechanism for preserving confidence in the criminal justice system. That rationale is reflected in the fact that a judge alone trial will not be granted merely on the request of the accused and that the court is specifically required to have regard to matters involving the application of objective community standards.

(Footnotes omitted)

39. Priest JA, a judge of the Victorian Court of Appeal, advocating for the introduction, as an option, of judge alone trials in Victoria, recently wrote the following in the Australian Law Journal:

It must be acknowledged that there has been general satisfaction with jury verdicts over a great many years. The experience of most trial judges is that juries of old coped well with large drug trials, complex frauds, terrorism cases and underworld murders. Times, however, have changed. Lack of restraint by traditional news media, and the ubiquity of incensed, overwrought and uncontrolled comment in social media, pose significant challenges to the integrity of trial by jury in sex offences, drugs and other cases. In some cases, judicial direction simply will not be adequate to nullify the prejudice engendered by pretrial publicity (or ongoing prejudicial publication on social media). The proliferation of social media has made it virtually impossible for a trial judge to monitor potential sources of prejudicial material to which a jury may have been exposed. And since a jury does not have to give reasons, and what occurred in the jury room can rarely be explored, it is impossible to determine whether in any given case a jury’s verdict has been influenced by improper considerations. That perhaps provides the strongest argument in favour of trial by judge alone. A judge must give reasons. His or her path of reasoning must be exposed. The evidence that he or she accepted or rejected, and the reasons for that acceptance or rejection, must be explained. Relevant legal principles, and how they were applied to the evidence must be set out. A jury’s verdict, on the other hand, is largely inscrutable. In a trial by judge alone, the verdict is therefore transparent in a way that a jury verdict never can be. (Justice Phillip Priest, ‘Crime and Evidence’ (2020) 94 Australian Law Journal 110).

40. Dr Fiona Hanlon, a former Deputy Secretary of the Victorian Department of Justice wrote a detailed article on judge alone trials in both Australia and some foreign jurisdictions (‘Trying serious offences by judge alone: towards an understanding of its impact on judicial administration in Australia’ (2014) 23 Journal of Judicial Administration 137). She concluded as follows:

A discussion began in the last quarter of the 20th century about the continued suitability of jury trial for particular types of offences. That discussion focused on the capacity of jurors to comprehend complex evidence, particularly technical and financial evidence involved in complex and lengthy fraud trials. In the 21st century, greater attention to pretrial processes and case management have, to some extent, lessened the immediacy of the issue of efficacy of jury trial in complex cases. Expectations that accused persons would opt for criminal trial by judge alone rarely, and for cases involving complex evidence, have not been fulfilled.

As the concept of criminal trial by judge alone has developed in Australia the thinking around it and its place in the criminal justice system has also developed. The focus of that thinking is not on unfairness to the accused because of denial of jury trial. Rather, it is evolving on the basis that one mode of trial is not inherently fairer than the other. This potentially permits a view of criminal trial by judge alone as a legitimate counterpart to jury trial in appropriate cases and not as an exceptional or remedial fix. Judge-alone trials may even facilitate a new approach to community participation and engagement with the administration of criminal justice through openness and transparency facilitated by the provision of a reasoned verdict, something absent from jury trial.

The New South Wales Legislative Council Standing Committee on Law and Justice in its 2010 report commented that a potential increase in the number of judicial decisions arising from judge-alone trials would provide greater transparency in decision-making, and allow the community to develop an enhanced understanding of why a particular verdict had been reached.

Evolving concepts of community engagement with the criminal justice system, and of criminal trial by judge alone as a legitimate form of fair trial that can co-exist with jury trial, may lead to a further evolution where the discussion of trial mode is genuinely one about deciding which form of trial best suits which situations leading to a concept of “appropriate” cases for criminal trial by judge alone. However, that requires a good understanding of criminal trial by judge alone in practice as a counterpart to jury trial.

(Footnotes omitted)

41. Without any disrespect to the detailed arguments contained in the above judgments and articles I think the second of the three questions I posed above can be answered in this way: A judge alone trial can be a fair trial, but the decision on whether or not to order a judge alone trial has been influenced by the nature of the case and dictated by the wishes of the accused.

42. However, as discussed above, under the new legislation, the wishes of the accused may be a relevant factor, but they no longer dictate an outcome. Nevertheless, a fair trial remains the determinative factor. It is to be remembered that judge alone trials have existed in the ACT since 1993. The new legislation has not introduced judge alone trials. It has not even made them compulsory. It may have removed the consent of the accused but it has retained the vital requirement that the proposal to order a judge alone trial is made in the interests of justice. The Court must still decide that the trial can be fair.

If the answer to the preceding question is “Yes”, is there anything particular about the accused or the circumstances of his or her case that renders a trial by judge alone unfair?

43. The accused is aged 27. He was taken into custody on 13 February 2018. This is not the only trial he is confronting. Originally, he faced charges in respect of a number of robberies, some with a co-accused, which were to take place over a period of some months beginning in February 2020. As a result of pleas of guilty and the Crown declining to proceed on some charges, it is now anticipated that the accused, besides this matter, will face another three trials.

44. In the trial to which the proposed order applies, the accused is facing the following charges:

(a) One count of aggravated burglary;

(b) One count of theft;

(c) One count of causing damage to property; and

(d) One count of dishonestly driving a motor vehicle.

45. All of the charges arise from a single criminal enterprise. The Crown alleges that on 11 December 2017 the accused drove a stolen car to the Lanyon Vikings Club. It is asserted that his DNA was identified on the motor vehicle’s controls. The Crown case then says that the accused and another person entered the club, from the rear, with their faces covered and wearing gloves. The accused is alleged to have been carrying a crowbar and the other person a barbell. They entered the club through a window and then forced open five lockboxes attached to poker machines. They then allegedly removed the cash canisters from the lockboxes and departed with the $1,515.00 that had been in the canisters. Their attack on the poker machines caused damage amounting to $151,250.00.

46. The Crown told me that its evidence is substantially made up of DNA findings and CCTV footage.

47. I anticipate that the main issue in this trial is likely to be identification. There is no reason to suppose a jury has any advantage in deciding this question. To the contrary it might be thought that a judge’s application of the concise rules regarding identification could favour an accused.

48. I can see nothing in the alleged facts which renders the trial more suited to a jury than a judge. I note that prior to the amendments the accused had the option to elect a judge alone trial. Importantly, the accused conceded that there was no particular element arising from the alleged facts which made the matter more suited to determination by a jury than by a judge alone. He relied on his wish to have a jury trial as the only subjective feature in favour of his submissions.

49. The accused submitted that the proposed order would be made without the benefit of any evidence. It was seemingly suggested that the Court should adopt an inquisitorial role and gather evidence to justify making the order. I reject this suggestion. I note no evidence was tendered by the accused. He did not even say why he wished to have a jury trial.

50. I do however think there are some subjective features that assist him. The accused has not yet been sentenced for the offences to which he pleaded guilty. That will occur when all of his trials have been completed. Nevertheless, it must be recognised that although the accused will receive credit for some, if not most, of the time he has spent in custody so far, he is likely to be in custody for some time into the future. This to some degree diminishes the factor in favour of a judge alone trial arising from him being a person in custody awaiting his trial.

51. It also emphasises the Crown submission that little prejudice will be suffered by the accused if his trial is delayed by some months.

52. At the same time, however, he is a young man, albeit with a well-established criminal record, who is in custody and entitled to have his case dealt with as soon as possible. He of course has said that he abrogates that entitlement, but I do not think that his abrogation affects the unquestioned necessity that persons awaiting trial, even if already in custody or on bail, should come to trial as early as possible.

53. As stated at the outset, the accused does not consent to a judge alone trial. This is a powerful reason against the proposed order. However, other than this absence of consent, I can see no other reason not to order a judge alone trial. Section 68BA explicitly sanctions an order against the wishes of an accused, provided only that the Court is satisfied of the matters set out in s 68BA(3).

54. Frequently heard phrases like ‘justice delayed is justice denied’ are repeated for good reason. A criminal justice system must continue notwithstanding that other areas of society have come to a standstill. If an accused’s trial can be a fair trial, then the proposed order should be made.

The parties’ submissions

55. Most of the submissions made by the parties have been canvassed in the above discussion. Nevertheless, I think some further comments need to be made.

56. The approach taken by the Crown was to list a number of factors which it submitted a court should have regard to in coming to a decision about a proposed order. The Crown then examined each factor individually and reached a conclusion that the particular factor was in favour, against or neutral as to the making of the proposed order. I will comment on those factors that are said to be against the making of the proposed order.

57. As I read the submissions the most forceful factor put against the making of the proposed order is that the “right to a jury trial is fundamental”. The Crown concluded it submissions on this point with this passage:

The Crown submits that imposing a judge alone trial on an unwilling accused could only ever be justifiable, and thus in the interests of justice, where it is the only means of ensuring that justice can be done. Put differently, a judge alone trial should only be ordered where a refusal to do so would inevitably lead to serious injustice.

58. In my view the flaw in this argument is that the Crown has effectively reversed the fundamental question to be asked. The true question is: Can a judge alone trial meet the interests of justice? It is not, as posed by the Crown; is the only means of avoiding an injustice by a judge alone trial?

59. The “length of the likely sentence” is said by the Crown to be a factor that “to a moderate degree” weighs against the proposed order. The Crown has pointed out that the charges are serious and, in particular, the maximum sentence for aggravated burglary is 20 years’ imprisonment. Further, the amount of damage done to the poker machines would place the relevant offence at about the mid-range of objective seriousness.

60. Consequently, said the Crown, based on current sentencing practices, this accused, taking into account his criminal history “could expect a head sentence of somewhere between 2 years and 6 months to 4 years and 6 months imprisonment if convicted”.

61. The Crown then went on to observe that without the intervention of s 68BA the accused could only face a trial without a jury in the Magistrates Court where he would face a maximum sentence for an indictable offence of two years’ imprisonment. The Crown then continues that the higher the sentence “the greater the interests of justice will weigh against ordering a judge alone trial against the will of the accused”.

62. In my view this is not a relevant factor. Firstly, a sentence in the order of four years and six months is not so high as to be remarkable and secondly, and more importantly, it is the trial that must be fair. Whether convicted by a judge alone or a jury, the sentence will be imposed by the judge.

63. The next factor said to weigh against a judge alone trial is that the victim in this matter is a corporation who is not “pressing for a quick trial”. This is to be contrasted to a victim who has suffered personal harm and is waiting for ‘justice to be done’. I think this generalised statement is wrong. A victim who is a person may well be anxious for a trial to be completed. However, so may a corporation, in particular a corporation exposed to offences of this type. The corporation will be concerned that persons who attack its premises will be swiftly brought to justice to deter other potential offenders who may view the premises as an attractive target.

64. There is another element to this point. Rising unemployment, as is already becoming evident, is likely to reach levels not seen for many years. The courts must be seen to be continuing to hear criminal cases to ensure public confidence in the justice system and as a deterrent to persons seeking unlawful alternate or supplementary sources of income.

65. The next factor stated by the Crown to weigh against a judge alone trial was that, at least as presently envisaged, the delay in a jury trial is likely to be between three and six months. This of course ignores the fact that the emergency period is not, subject to further order, due to end until 31 December 2020. It is of course possible that some vestige of normality will return before the end of the year, but that is mere speculation. At present the emergency, evidenced by the extreme measures taken to combat it, must be seen as likely to last for many months into the future.

66. The Crown pointed out that the ACT Supreme Court “is one of the more efficient Courts in the country”. Accordingly, in summary, it has some leeway in accumulating a backlog. Noting that all other States and Territories have stopped jury trials, but have not enacted legislation such s 68BA, the ACT should not place the accumulation of a modest backlog ahead of the interests of justice.

67. As noted above s 68BA(3) is not only concerned with the interests of justice but also with ensuring “the orderly and expeditious discharge of the business of the court”. This business is the running of criminal trials and, in doing so, the avoidance of a backlog, noting that every case caught in a backlog is a case that is unduly awaiting just determination.

68. The Crown further noted that when the previous judge alone trial regime was introduced in 2011 the court was considerably less efficient but yet the legislature did not see it as appropriate to enact legislation similar to s 68BA. The answer to this point is short: There was no COVID-19 emergency in 2011.

69. The next factor against the making of an order arose from the accused being in custody. It was suggested that a delay in coming to trial of up to two and a half years is “tolerable”. The submission was derived from a number of bail cases where an accused person had been remanded for comparable lengths of time. Each bail case of course rests on its own facts. Some cases require the proof of exceptional circumstances. Whatever the case I do not accept that it can ever be appropriate for a person to wait for over two years before coming to trial.

70. As stated above I do accept that this accused’s current custody is probably more attributable to matters to which he has pleaded guilty than him awaiting trial. Nevertheless, I am firmly of the view that persons should be brought to trial as soon as possible and that delays in the order of two and a half years should be strenuously avoided.

71. I initially thought the strongest point made by the Crown was this: The accused is in custody. He is likely to remain in custody for some time, the evidence against him does not rely on the well-being of any particular witness and the evidence will not degrade over time. Therefore, remembering that he does not wish to have a judge alone trial, what harm is there in waiting for even a year for him to come to trial. On reflection, and with respect, I think the submission ignores the primary intent of the legislation. The business of the court must proceed and is constrained only by the interests of justice. If there is no reason why a judge alone trial is not fair to the accused, then the trial should proceed.

72. The accused made this submission about s 68BA(3)(a). Ms Morrisroe said that the word “ensure” meant “to make certain of something or to guarantee something”. She continued: “Ultimately, in my submission, in the COVID-19 world that we find ourselves in, the ability to make certain of something, to guarantee something, or indeed to ensure something, is near impossible”. I entirely agree but am at a loss to understand why the uncertainty of the world should prevent a court from pursuing its primary business. The new legislation is an attempt to defeat the uncertainty. The Court should not impede this quest by refusing to act in what it considers are the interests of justice.

Conclusion

73. My conclusion therefore, consistent with the intent of the legislation, and notwithstanding the attitude of the accused, is that a judge alone trial should be ordered.

74. There will be cases where an accused will establish that his or her trial is only suited to a determination by a jury. I do not think this is such a case. As has been discussed above, it cannot be said, without more, that a person subjected to a judge alone trial will not receive a fair trial. There is not more in this case. That being the position,

s 68BA(3)(a) requires the proposed order to be made.

75. It also follows that, if my reasoning is correct, future submissions to halt the making of a proposed order should concentrate on features relevant to the facts of the trial, perhaps including subjective traits of the accused, to establish that in the particular case a judge alone trial will be against the interests of justice.

76. I mentioned at the outset that the validity challenge to the legislation had been deferred pending the completion of these reasons. I will therefore not now make any order other than to say that if I reach a conclusion that the laws are valid, I will then make an order that there be a judge alone trial.