Attorney-General Shane Rattenbury has confirmed that the Solicitor-General will represent the ACT Government in a court appeal challenging the constitutional grounds of judge-alone trials which were implemented during the pandemic.
Judge-alone trials were brought in last year by former Attorney-General Gordon Ramsay and gave magistrates the power to overrule the right to a jury trial.
The laws were called “fundamentally unsound and misguided” at the time, with the chair of the Criminal Law Committee, Michael Kukulies-Smith, saying the law could be illegal.
Criminal offences, which previously had to be trial by jury, could be heard before a judge, and a judge trying a case can force the defendant to proceed to a judge-only trial – even if they do not consent – if the judge perceived that it was “in the interest of justice”.
Previously, offences like murder, manslaughter and sexual offences (ranging from sexual assaults to acts of indecency and child exploitation) had to be heard in front of a jury.
The legislation was in place between April and June last year before it was decided that it was safe to conduct jury trials again during the pandemic.
More than half a dozen judge-alone trials were ordered, and the judge overruled the request of either the prosecution or the accused and proceeded without their consent in two cases, ACT Director of Public Prosecutions Shane Drumgold said.
One is subject to appeal and will include the argument that the judge-alone trial against the consent of the accused was illegal. The other was subsequently settled, Mr Drumgold said.
Mr Rattenbury signed a letter giving the Solicitor-General leave to represent the government in court on Thursday night (18 February).
Preliminary deliberations for the proceedings are expected to be completed by the middle of the year and hearings will likely commence in the second half of 2021.
Canberra Liberals MLA Jeremy Hanson, who was the shadow Attorney-General at the time, proposed a motion at the time that would have brought the ACT’s bill in line with NSW and would only have allowed judge-alone trials to proceed with the consent of the accused.
Opposition Leader and Shadow Attorney-General Elizabeth Lee said the government did not respect the rule of law when passing the legislation.
“This is an arrogant government that has wilfully ignored the advice from the legal profession and unilaterally removed a fundamental human right,” Ms Lee said.
“This government has demonstrated its clear disrespect for the rule of law and the fundamental protection of human rights despite strong condemnation from the legal profession at the time these laws were being debated.”
Former deputy chief executive of Legal Aid ACT Jane Campbell, who is now a special magistrate, also argued that the trials likely breached the constitution.
“On its face, the Court lacked true discretion in making its orders to proceed to hold trials by judge alone, which is potentially incompatible with constitutional legal doctrine,” a paper she co-authored while at Legal Aid stated.
“Other jurisdictions were able to address this problem without intruding upon the right of an accused to have their matter heard by a jury of their peers.
“This amendment evidences the danger of legislative overreach during a crisis.”