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?”
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.”