“Fundamentally unsound and misguided”, ACT removes right to trial by jury

Dominic Giannini 6 April 2020 32
ACT Attorney-General Gordon Ramsay

ACT Attorney-General Gordon Ramsay says the new measures would allow justice to continue to be delivered promptly. Photo: Region Media.

Canberran’s could have their right to a trial by jury overruled and replaced by a judge-only trial under new emergency COVID-19 legislation passed by the ACT Legislative Assembly.

However, the ACT Law Society has called the new amendments “fundamentally unsound and misguided”, and the Chair of the Criminal Law Committee, Michael Kukulies-Smith, says the new laws could be illegal, opening them 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,” Mr Kukulies-Smith said.

Criminal offences, which previously had to be trial by jury, are now able to 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 perceives it to be “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.

ACT Attorney-General Gordon Ramsay said that justice still had to be delivered in a timely manner.

“Justice delayed is justice denied,” Mr Ramsay told the ACT Legislative Assembly.

“Delays in criminal proceedings have adverse-affects and may combine with many other factors, such as the loss of evidence to deny accused [people] a fair trial.

“Delayed trials can prolong the trauma of the survivors and make it substantially more difficult for them to be able to move on in their life.”

However, Mr Kukulies-Smith said the Territory should have implemented the same model as NSW to better protect the defendant’s right to a trial by jury.

Legislation passed in NSW would allow for judge-alone trials in matters that previously had to be heard before a jury, but the defendant would have to agree to waive their rights to a jury trial and the judge must be satisfied that they had received adequate legal advice on the subject.

“The reality is the purpose of this provision is that judges can force people [to proceed] irrespective of their wishes,” Mr Kukulies-Smith told Region Media.

“It is not good enough to say they might not, the fact is the government should not have given the judges that power. It is too much power.

“We have said that [NSW] is a balanced approach and the ACT should follow. You hear Andrew Barr saying every day that the ACT needs to stay in step with NSW and respond to COVID-19 in a manner consistent with NSW.

“Well, why the hell didn’t they do that here?”

Michael Kukulies-Smith

Michael Kukulies-Smith, one of Canberra’s top criminal lawyers, has said the new legislation will certainly be challenged. Photo: Supplied.

Opposition MLA Jeremy Hanson moved a motion in the Assembly to bring the ACT’s bill in line with its NSW counterpart, but it was defeated.

“In all cases the court must be satisfied the accused person has sought and received proper legal advice. This is an important distinction – that judge-alone trials may only proceed with accused’s consent,” Mr Hanson said of his amendments.

“It is a distinction that recognises that, even in extraordinary times, some rights should be protected.”

But Mr Ramsay was adamant that the defendant’s human rights have not been infringed through the new measures.

“Our aim is to keep courts operating efficiently to avoid a potential backlog of cases or delays in our justice system following the COVID-19 public health emergency, particularly where defendants are being held in custody awaiting trial,” he said.

“The right to a fair trial is enshrined in Human Rights law and this can be provided by a judge-alone trial.

“We recognise the essential service to community ACT Law Courts provide and will do all within our power to support the courts to hear cases in a timely way.”

Although the legislation could potentially have the opposite effect, Mr Kukulies-Smith said the new measures would invite lengthy court challenges if a defendant was ordered to proceed to a judge-alone trial against their wishes.

“I think it will be challenged as soon as a judge makes an order within a case where the defendant does not want a judge-alone trial,” he said.

“The consensus is the Legal Aid office is interested in challenging, the ACT Bar Association and the Law Society are all suggesting to their members that it should be challenged. I would absolutely [challenge it].

“Enough people would elect [to proceed anyway] that it would fill the court list. There will be some people who do not, and those people will have to wait, and they will no doubt be given that advice by their lawyers as part of their decision-making process.”

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32 Responses to “Fundamentally unsound and misguided”, ACT removes right to trial by jury
Heavs Heavs 2:05 pm 09 Apr 20

High Court has basically said juries are irrelevant now anyway so why not just make it a permanent measure.

I remember back when CJ Higgins was still in charge all these criminal lawyers were lining up round the block to get in front of him in a judge alone trial.

Cleve Gabriel Cleve Gabriel 6:59 am 08 Apr 20

Was going to comment in relation to Pell but changed my mind

Shayne Borger Shayne Borger 5:39 pm 07 Apr 20

Absolute atrocity of fairness and removal of civil liberties. This Government is SO on the nose they MUST GO!

    Ben Appleton Ben Appleton 9:43 pm 07 Apr 20

    Shayne Borger simple. Don’t do the wrong thing 🤷🏻‍♂️

Neica Hall Neica Hall 5:07 pm 07 Apr 20

Trial by jury has become a very bad joke today. Why would you bother.

Carli Prestwich Carli Prestwich 4:22 pm 07 Apr 20

Alejandra Brown Might get off jury duty!

John Greene John Greene 3:02 pm 07 Apr 20

I don’t see how it’s such a big issue. A court room is “supposed” to be purely about the facts. Prosecution presents their facts and evidence towards a crime, defence presents their facts and evidence to prove innocence. Defence don’t want this because the judge is required to adjudicate based purely on facts and evidence. Opinion and emotions shouldn’t play a part in a court case which is what the “human factor” of a jury provides

    Michael Strand Michael Strand 4:21 pm 07 Apr 20

    Yoiu are advocating for a Kangaroo court...very dangerous path. Judges are just people, they all have their own biases....which is really going to suck if their bias doesn't favour you. The whole point of a jury is to overcome personal biases in the deciders.

    Eric Anthony Lucas Eric Anthony Lucas 5:44 pm 07 Apr 20

    John Greene judges tend to convict more often than juries, in my experience.

John Dillon John Dillon 2:26 pm 07 Apr 20

Off this topic, but when our CM Andrew Barr declared this emergency with the TV coverage didn't he state he would deal with any price gouging during this time, well still waiting Andrew, the price of fuel in this town I would argue is the definition of gouging.......crickets......

    Adrian Fitzgerald Adrian Fitzgerald 3:42 pm 07 Apr 20

    John Dillon have you seen the prices elsewhere in the country, it’s down around a $1 a litre.🤷‍♂️🤬

    John Dillon John Dillon 6:39 pm 07 Apr 20

    That's what I mean, then our CM will come out with the standard "we will let market forces decide ". Not for rates and taxes, but for petrol it's the line the weak local council will take.

Jim Jim Jim Jim 2:24 pm 07 Apr 20

This is insane.

Jen Jen Jen Jen 2:20 pm 07 Apr 20

Pell’s verdict shows it doesn’t matter if you have a jury anyway 💁‍♀️

Christopher Cuba Rabanal Christopher Cuba Rabanal 1:10 pm 07 Apr 20


It will become a Kangaroo courtroom

Cary Elliot Johnson Cary Elliot Johnson 11:53 am 07 Apr 20

Well that’s weird coming from a City State that prides itself on being socially inclusive and advanced on all matters modern.

Ben Roberts Ben Roberts 11:26 am 07 Apr 20


Trial by jury

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

    Tim Cole Tim Cole 12:51 pm 07 Apr 20

    I'm not sure that this applies to state/territory laws? They aren't laws of the Commonwealth

    Ben Roberts Ben Roberts 3:31 pm 07 Apr 20

    Tim Cole Constitution overrules all mate

    Tim Cole Tim Cole 3:34 pm 07 Apr 20

    Yes, it does, but the paragraph you've quoted is explicitly stating an offence against any law of the Commonwealth.

    State and Territory laws are not laws of the Commonwealth. Otherwise every case in the local Magistrates Court would have a jury when this isn't the case.

Ben Roberts Ben Roberts 11:24 am 07 Apr 20

This law is unconstitutional.

Lorraine Marsh Lorraine Marsh 7:54 am 07 Apr 20

Justice is never quick or correct. The lawyers always drag in out for more money.

This serves no purpose.

Acton Acton 6:22 am 07 Apr 20

We are now living in a police state of mass hysteria and mutual suspicion, giving up our freedom of movement, economy and way of life on account of government induced fear and panic. 1984 has arrived in 2020.

Gabriel Spacca Gabriel Spacca 10:46 pm 06 Apr 20

Friends of mine have expressed concern about the types of decisions being made in the name of fighting Covid 19.

Up to now I’ve been happy to give governments, of all flavours, the benefit of the doubt. But I’m now seeing a lot of decisions being made which impact our civil rights and are hard to see being unwound once the pandemic is under control.

This is one of them. If it’s possible to set up Telehealth capabilities for people to still access medical advice, it should be possible to set up ‘virtual’ courtrooms with the jurors isolated from each other and the physical courtroom. Better that, than the erosion of our hard-won judicial system.

    Lauren KC Lauren KC 10:52 pm 06 Apr 20

    Gabriel Spacca it goes beyond just protecting potential jurors from COVID-19. A lot of potential ACT jurors are now essential staff, or now have carer obligations. So it's now more difficult to find a suitable pool to draw from

    Speaking as someone who had to challenge a jury summons for April-May.

    Gabriel Spacca Gabriel Spacca 11:56 pm 06 Apr 20

    Good points. But I still don’t think this is the best solution. As they say in the classics; “The road to Hell is paved with good intentions.”

Robyn Holder Robyn Holder 9:04 pm 06 Apr 20

Oh yeah let's put them all together snuggled up in the jury section. That's a much better idea.

Anthony Briscoe Anthony Briscoe 7:36 pm 06 Apr 20

Get rid of this lot. Now something that has severed the justice system for centuries is not good enough for the ACT

Jeannou Zoides Jeannou Zoides 7:16 pm 06 Apr 20

Why? What purpose does that serve?

    Scott Humphries Scott Humphries 7:26 pm 06 Apr 20

    Protecting jurors from covid19 exposure, and not delaying trials?

    Richard Willcoxson Richard Willcoxson 7:47 pm 06 Apr 20

    Scott Humphries that’s right Scott. Heard a bloke on ABC radio complaining about this. This right to have either a juror or judge trial goes back to Magna Carta days in 1215. Apparently there is enough cases for judge only trials that there is no need for this. All they have to do is move the orders around

    Helen Keayes Helen Keayes 7:59 pm 06 Apr 20

    As a practising lawyer, I would NEVER opt for a judge only trial.

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