R v DA [2008] ACTSC 26

3. Of course, as Mr Buchanan SC points out in response, there are ways of ensuring that the jury is not prejudiced unfairly by such evidence. First of all, that evidence might be permitted only to be given in a modified form. It might be excluded as being irrelevant to the proper purpose of proving the charge against the accused. The jury might be warned about inappropriately using evidence that might be presented, and invited to ignore any untoward emotional reactions. All of those things are, of course, open.

4. Mr Purnell SC submits that there is a discretion, effectively, to vacate the hearing date and places it fairly and squarely on the right of the accused to exercise the election conferred by statute under s 68B of the Supreme Court Act 1933. That raises a number of issues. It raises an issue about what is the nature of that right and how it should be approached. As I said to Mr Buchanan SC, and there is a record in the case of R v W (SCC 117 / 00), it had been my view that the term "date first allocated" fixed that date in respect of that indictment, so that once a date was fixed for the trial of that indictment then the accused had no further right of election. I was told very firmly in W v The Queen [2001] FCA 1648; (2001) 115 FCR 41 that I was wrong, and that, of course, I accepted when I participated in the case of R v Tran (2002) 167 FLR 345; [2002] ACTSC 56.

5. It now appears that the right of election, although it arises only in respect of a trial of a particular indictment, may be revived. Firstly, if that indictment is amended, because then the trial date is not set in respect of that indictment but another one. Secondly, where the initial trial date, for whatever reason, cannot be or is not availed of, and that may be for a number of reasons. As in R v Tran (supra), it may be because a successful appeal leads to a new trial being ordered, which means that the old trial date has become irrelevant, and the fact that that old trial date was set and first set, and another date is now being set for the trial of the same indictment, is not to be regarded as any barrier to s 68B being reactivated.

6. The other, as has been the practice in several cases already, is where, for instance, the trial date is availed of but, for whatever reason, the case cannot proceed on that day, whether because the trial is aborted by reason of a certain event arising in the course of the trial, or simply because a witness is unavailable, or any other reason which might be sufficient to cause the trial date to be vacated, either on the date in question or in advance of it, and that is the reason, of course, why Mr Purnell SC asks me now to vacate the trial date. The question then is: what is the nature of the right that is conferred by s 68B?

7. The case of Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 indicates there is recognised at common law a right to not have an unfair trial, which is different from s 21 of the Human Rights Act 2004 (ACT) which confers a right to a fair trial. That is a very different emphasis. It seems to me that activates the remarks that Kirby J made in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 where his Honour departed from the approach of the other members of the Court on that very distinction. The majority were looking at the question of the right to avoid, in respect of a trial, unfairness. His Honour referred to various Human Rights Conventions, including the International Covenant on Civil and Political Rights (ICCPR) upon which the Human Rights Act 2004 of this Territory is based, and as a result held that there is, or ought to be, a right recognised under common law to a fair trial. See also Cornelius Stevens v Emily McCallum [2006] ACTCA 13. We do not have to have that debate in this Territory because that right is conferred by the Human Rights Act 2004, thereby modifying the common law accordingly.

8. In essence, it comes down to this. This is not a case where I could hold that to vacate the trial date, so as to reinstate the s 68B right in the accused to elect for trial by judge alone, would result in an unfair trial. It seems to me that is no longer the test: the test is whether the accused has the right to make an election as part of the holding of a fair trial. In other words, fairness is not only a question of objective fact, but also a question of perception. The accused person who, I am told, wished to make the election for trial by judge alone from the outset and by error has failed to make that election, might, by force of the statute, otherwise be shut out from doing do. It is open, however, to reactivate that in this case.

9. There is a second point, of course, or a second strand of public policy that activates or underlies s 68B itself. That is the need to avoid what might be called forum shopping, judge shopping, administrative inconvenience, injustice and effect on other litigants by vacating trial dates and forcing other litigants to wait, or to have waited, unfairly for their trials. However, that aspect does not arise in this case because the accused does not seek to have fixed a later date, but rather to simply have the date vacated with a view to fixing a date on either that, or a very close, date for the purpose of then proceeding with the trial. That application of course is foreshadowed at this point, as it is contingent on whether the trial date be vacated.

10. It seems to me that, having regard to s 21 of the Human Rights Act 2004, I ought to give decisive weight in the circumstance of there being no prejudice to the Crown or to any Crown witness, or to the trial, the efficiency or otherwise of the trial. Indeed it may be to the greater efficiency of the trial to accede to the application made, so I do so. I will grant your application, Mr Purnell SC, to vacate the trial date.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Crown: Director of Public Prosecutions for the ACT