AT least one case is being appealed in the Supreme Court after the ACT government passed a bill that allowed judge-only trials during the height of the pandemic.
In an ACT Legislative Assembly Estimates Hearing today (February 19), it was revealed that several judge-only trials took place in the Supreme Court between April and mid-June without the consent of the accused.
The revelation comes after a paper, published in “Current Issues in Criminal Justice” this month, posited that the ACT government may have been outside their constitutional bounds after passing legislation in April that allowed judges to order Supreme Court trials to proceed without a jury due to covid safety restrictions.
Then attorney-general at the time, Gordon Ramsay, explained that the legislation sought to address issues surrounding delayed trials, including the prolonging of trauma faced by victims of crime.
But the ACT Law Society cited the bill as “fundamentally unsound and misguided” and warned the government could be opening themselves up to legal challenges.
“The right to trial by jury is a significant, longstanding right in our legal system that has been consistently observed by the High Court of Australia,” said the society’s criminal law committee chair, Michael Kukulies-Smith.
However, the ACT government was confident in its decision, with a spokesperson saying the government “sought legal advice on the amendments to section 68B of the Supreme Court ACT 1933 (ACT) before proceeding”.
Section 68B states that “a criminal proceeding against an accused person for an offence other than an excluded offence must be tried by a judge alone if the person elects in writing to be tried by a judge alone”.
The NSW and Victoria governments, at the time, passed bills that allowed for judge-only trials, but only with consent given from the accused, which according to the paper recently published “addressed the problem of delays without intruding upon the right of an accused to have their matter heard by a jury”.