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4. Criminal Procedure
D. Juries and Trials by Judge Alone
i. Legislation
Victoria:
Criminal Procedure Act 2009 (Vic) amended by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).
New South Wales:
Jury Act 1977 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW).
Court Security Act 2005 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures—Attorney General) Act 2020 (NSW): enables a security officer to require a person entering or in court premises to submit to testing or questioning, to determine whether a person is suffering from a symptom related to COVID-19 or is likely to have been exposed to COVID-19. Such officers are also empowered to refuse a person entry to court premises or require them to leave court premises. Where the person is a juror selected to a jury panel, the matter should be referred to the relevant judicial officer or coroner. The provisions also provide for a process of notification if the person is required to leave court premises or is refused entry to court premises and the person was required to attend court on that day. The proposed amendment is repealed on 26 September 2020 unless the regulations prescribe a later date for the repeal, not being later than 26 March 2021.
ACT:
Supreme Court Act 1933 (ACT) amended by the COVID-19 Emergency Response Act 2020 (ACT).
ii. Case law
The COVID-19 pandemic may be relevant to the exercise of a court’s discretion as to whether to discharge an individual juror on the basis of illness (see R v WE (No.18) [2020] NSWSC 373, although COVID-19 considerations might not be essential to that decision: see [8], [12]).
Provision is made in the legislation of various jurisdictions for trials in respect of non-federal offences, which might otherwise be heard by jury, to be heard by judge alone.
One example is s 68BA(4) of the Supreme Court Act 1933 (ACT), which was introduced by the COVID-19 Emergency Response Act 2020 (ACT) and purports to allow the ACT Supreme Court to decide in certain circumstances, and without the consent of the accused, that a trial should proceed by judge alone. Arguments concerning the constitutional validity of s 68BA(4) of the Supreme Court Act 1933 (ACT) have been raised, although not yet decided, in the ACT Supreme Court: R v UD [2020] ACTSC 88. In R v UD (No 2) [2020] ACTSC 90, those arguments were still not decided, but Elkaim J determined, under the new provisions, to order a trial of the accused by judge alone, despite the accused's objection to that course. Section 68BA(3) of the Supreme Court Act 1933 (ACT) provided “[t]he 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”. The case turned on (b), and specifically whether a judge alone trial of the accused could be fair. His Honour opined that “[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” (at [41]), and went on to determine that nothing in the specific circumstances of the accused or the case against him made trial by judge alone “unfair”.
In R v Coleman [2020] ACTS 97, Elkaim J again ordered that the accused be tried by judge alone, without his consent. In that case, his Honour indicated that credibility issues were not necessarily better suited to a trial by jury than a judge alone (at [35]). Murrell CJ agreed in R v IB (No 3) [2020] ACTSC 103 at [57]. In that decision, her Honour ordered that the accused be tried by judge alone, rejecting arguments based on the Human Rights Act 2004 (ACT) and Magna Carta. Interestingly, her Honour quoted with approval observations made in the course of refusing adjournments in civil proceedings by the WA Court of Appeal (at [77]) and the Federal Court (at [88]), to the effect that what would in ordinary times be unsatisfactory must be tolerated in order that the administration of justice continue during the COVID-19 period. Her Honour then observed that there was a “greater imperative in the case of criminal trials” (at [89]).
In both R v BD (No. 1) [2020] NSWDC 150 and R v Johnson [2020] NSWDC 153, the accused applied for a trial by judge alone, opposed by the Crown, requiring the NSW District Court to consider and apply new s 365 of the Criminal Procedure Act 1986 (NSW), which empowered the Court to order a judge-alone trial as a measure in response to COVID-19. Section 365(2)(b) provided that the Court could make such an order only if, where the prosecutor does not agree to the accused person being tried by a judge alone, the court considers it to be in the interests of justice. In both cases, the District Court relied on the observations made by the ACT Supreme Court in R v UD [2020] ACTSC 88 and R v Coleman [2020] ACTSC 97 (discussed above), in particular Elkaim J’s observation in R v Coleman (at [41]) that “[t]he legislation intends the business of the court to continue”. See also R v MPW [2020] NSWDC 170; R v Swain [2020] NSWDC 198, [12]–[29].
In R v Mitchell [2020] QDC 89, an order was made for trial by judge alone under pre-COVID-19 provisions, on the basis that it was in the interests of justice to do so, in circumstances where jury trials had been suspended for an indefinite period. It does not appear that the Court was referred to the ACT or NSW decisions above.
The Victorian Supreme and County Courts have recently been given powers to order that trials for certain Victorian offences be heard by judge alone, if it is in the interests of justice to do so and the accused consents (after having received legal advice): see the amendments made to the Criminal Procedure Act 2009 (Vic) by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic). The Supreme Court of Victoria has issued a practice note on the Trial by Judge Alone COVID-19 Emergency Protocol.
The Constitution requires federal offences (tried “on indictment”) to be tried by jury: Constitution, s 80; Alqudsi v The Queen (2016) 258 CLR 203, [114]-[115] (Kiefel, Bell and Keane JJ), [140]-[141] (Gageler J), [213] (Nettle and Gordon JJ).
D. Juries and Trials by Judge Alone
i. Legislation
Victoria:
Criminal Procedure Act 2009 (Vic) amended by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).
New South Wales:
Jury Act 1977 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW).
Court Security Act 2005 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures—Attorney General) Act 2020 (NSW): enables a security officer to require a person entering or in court premises to submit to testing or questioning, to determine whether a person is suffering from a symptom related to COVID-19 or is likely to have been exposed to COVID-19. Such officers are also empowered to refuse a person entry to court premises or require them to leave court premises. Where the person is a juror selected to a jury panel, the matter should be referred to the relevant judicial officer or coroner. The provisions also provide for a process of notification if the person is required to leave court premises or is refused entry to court premises and the person was required to attend court on that day. The proposed amendment is repealed on 26 September 2020 unless the regulations prescribe a later date for the repeal, not being later than 26 March 2021.
ACT:
Supreme Court Act 1933 (ACT) amended by the COVID-19 Emergency Response Act 2020 (ACT).
ii. Case law
The COVID-19 pandemic may be relevant to the exercise of a court’s discretion as to whether to discharge an individual juror on the basis of illness (see R v WE (No.18) [2020] NSWSC 373, although COVID-19 considerations might not be essential to that decision: see [8], [12]).
Provision is made in the legislation of various jurisdictions for trials in respect of non-federal offences, which might otherwise be heard by jury, to be heard by judge alone.
One example is s 68BA(4) of the Supreme Court Act 1933 (ACT), which was introduced by the COVID-19 Emergency Response Act 2020 (ACT) and purports to allow the ACT Supreme Court to decide in certain circumstances, and without the consent of the accused, that a trial should proceed by judge alone. Arguments concerning the constitutional validity of s 68BA(4) of the Supreme Court Act 1933 (ACT) have been raised, although not yet decided, in the ACT Supreme Court: R v UD [2020] ACTSC 88. In R v UD (No 2) [2020] ACTSC 90, those arguments were still not decided, but Elkaim J determined, under the new provisions, to order a trial of the accused by judge alone, despite the accused's objection to that course. Section 68BA(3) of the Supreme Court Act 1933 (ACT) provided “[t]he 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”. The case turned on (b), and specifically whether a judge alone trial of the accused could be fair. His Honour opined that “[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” (at [41]), and went on to determine that nothing in the specific circumstances of the accused or the case against him made trial by judge alone “unfair”.
In R v Coleman [2020] ACTS 97, Elkaim J again ordered that the accused be tried by judge alone, without his consent. In that case, his Honour indicated that credibility issues were not necessarily better suited to a trial by jury than a judge alone (at [35]). Murrell CJ agreed in R v IB (No 3) [2020] ACTSC 103 at [57]. In that decision, her Honour ordered that the accused be tried by judge alone, rejecting arguments based on the Human Rights Act 2004 (ACT) and Magna Carta. Interestingly, her Honour quoted with approval observations made in the course of refusing adjournments in civil proceedings by the WA Court of Appeal (at [77]) and the Federal Court (at [88]), to the effect that what would in ordinary times be unsatisfactory must be tolerated in order that the administration of justice continue during the COVID-19 period. Her Honour then observed that there was a “greater imperative in the case of criminal trials” (at [89]).
In both R v BD (No. 1) [2020] NSWDC 150 and R v Johnson [2020] NSWDC 153, the accused applied for a trial by judge alone, opposed by the Crown, requiring the NSW District Court to consider and apply new s 365 of the Criminal Procedure Act 1986 (NSW), which empowered the Court to order a judge-alone trial as a measure in response to COVID-19. Section 365(2)(b) provided that the Court could make such an order only if, where the prosecutor does not agree to the accused person being tried by a judge alone, the court considers it to be in the interests of justice. In both cases, the District Court relied on the observations made by the ACT Supreme Court in R v UD [2020] ACTSC 88 and R v Coleman [2020] ACTSC 97 (discussed above), in particular Elkaim J’s observation in R v Coleman (at [41]) that “[t]he legislation intends the business of the court to continue”. See also R v MPW [2020] NSWDC 170; R v Swain [2020] NSWDC 198, [12]–[29].
In R v Mitchell [2020] QDC 89, an order was made for trial by judge alone under pre-COVID-19 provisions, on the basis that it was in the interests of justice to do so, in circumstances where jury trials had been suspended for an indefinite period. It does not appear that the Court was referred to the ACT or NSW decisions above.
The Victorian Supreme and County Courts have recently been given powers to order that trials for certain Victorian offences be heard by judge alone, if it is in the interests of justice to do so and the accused consents (after having received legal advice): see the amendments made to the Criminal Procedure Act 2009 (Vic) by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic). The Supreme Court of Victoria has issued a practice note on the Trial by Judge Alone COVID-19 Emergency Protocol.
The Constitution requires federal offences (tried “on indictment”) to be tried by jury: Constitution, s 80; Alqudsi v The Queen (2016) 258 CLR 203, [114]-[115] (Kiefel, Bell and Keane JJ), [140]-[141] (Gageler J), [213] (Nettle and Gordon JJ).
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