Court of Appeal (ACT)|2009-02-24

The application for leave to appeal from the orders made by Higgins CJ on 31 March 2008 be granted.

3. The second order made by Higgins CJ on 31 March 2008 be set aside.

The purported written elections for trial by judge alone made by the respondent and filed in Court on 31 March 2008 and 2 April 2008, respectively, are not valid and effective elections for the purposes of s 68B of the Supreme Court Act 1933 (ACT).

IN THE SUPREME COURT OF THE ) No. ACTCA 6-2008

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. I agree with the orders proposed by Besanko J and the reasons that he has expressed for making those orders. I also agree with the comments made by Penfold J on the practical aspects on the making of election for trial by judge alone. Like her, I too see a benefit in amending the provisions to permit an election to be made with the leave of the court after the trial date is first set, either in the discretion of the court or in specified circumstances so as to ensure that the interests of justice are best served.

I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

IN THE SUPREME COURT OF THE ) No. ACTCA 6-2008

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. I have read the reasons for judgment of Besanko J, which set out the background to this appeal, and I agree with the orders proposed by him, namely that the application for leave to appeal be granted, the appeal be allowed, and the second order made by the primary judge on 31 March 2008 be set aside. I also agree with Besanko J that the Court should make a declaration that the purported written elections for trial by judge alone made by the respondent and filed in Court on 31 March 2008 and 2 April 2008 are not valid and effective elections for the purposes of s 68B of the Supreme Court Act 1933 (ACT) (the SCA).

3. I agree with Besanko J's reasons for granting leave to appeal.

Did the respondent make an effective election for trial by judge alone?

4. First, I agree with Besanko J that the question whether the respondent made an effective election for trial by judge alone depends on the interpretation of s 68B of the SCA. For reasons which I set out below, I consider that the respondent did not make an effective election, despite the vacation of the trial date, and therefore it seems to me that there is no need to make a finding whether the first order made by the primary judge, permitting the vacation of the trial date, was made in an inappropriate exercise of his discretion to permit a trial date to be vacated. However, if the primary judge was, contrary to my view, correct in finding that permitting the vacation of the trial date would enable the respondent to make an effective election for trial by judge alone, then, having regard to the matters he took into account, I cannot see that there is any basis for saying that his discretion was incorrectly exercised.

5. There is no discretion given to the court to dispense with the requirements of s 68B, and for that reason I consider that the second order made by the primary judge, that the respondent "be allowed to elect to be tried by a judge alone", was also not effective.

Interpretation of s 68B

1"> 6. Section 68B(1)(c) of the SCA sets out one of the requirements for an effective election for trial by a judge alone, namely that "the election is made before the court first allocates a date for the person's trial". In the present case, the significant words in the paragraph are "first" and "the person's trial".

7. Once a date has been set for "the person's trial", then the date has "first" been set, and under s 68B there is no further scope for an election to be made in relation to that trial. The more difficult question is how to delimit the proceedings covered by "the person's trial". Both the words of the paragraph, and earlier ACT cases, provide some help in this.

8. The use of "first" in s 68B(1)(c) is relevant in defining "the person's trial". It is implicit in the reference in s 68B(1)(c) to the court "first" allocating a trial date that a trial is not defined by its date, and that there will be occasions on which the date first set for a trial will not in fact be the date that the trial goes ahead. Thus, the trial for which a date has been set cannot be converted into a different trial, a trial for which a date has not been set (such that the opportunity for an election under 68B arises again), merely by the trial date being vacated. Furthermore, since vacating a trial date of itself does not change the impact of the first allocation of the date for that trial, it does not matter whether the next date set is the same as the vacated date or another date; in either case this simply amounts to the second or subsequent allocation of a date for the same trial, an action which is clearly contemplated by s 68B(1)(c) and which does not in any way affect the operation of that paragraph.

9. The circumstances of W v The Queen [2001] FCA 1648; (2001) 115 FCR 41 (W v The Queen), a decision of a Full Court of the Federal Court sitting on appeal from a judge of the ACT Supreme Court, are set out by Besanko J at [66] to [68]. In that case Whitlam J, with whom Madgwick J agreed on this point, held (at [69]) that a person:

will not be "an accused person in criminal proceedings" within the meaning of s 68B(1) until an indictment has been filed.

10. That is, if no indictment has been filed, any purported setting of a trial date is irrelevant for the purposes of s 68B(1)(c).

11. In R v Tran [2002] ACTSC 56; (2002) 167 FLR 345 (Tran), the circumstances of which are set out by Besanko J at [70], a Full Court of the ACT Supreme Court held (at [61]) that, where a jury verdict was set aside and a new trial ordered:

The choice by the accused of trial by judge alone arises before the date is set for the trial of counts contained in an indictment duly filed or presented, whether or not the accused has been arraigned. The relevant trial in this case, the first trial being held to have been defective, is the new trial.

(a) if a trial has actually been conducted and concluded with a verdict, the application of s 68B to a subsequent trial of the same charges ordered because of some defect in the first trial is not affected by the fact that a trial date was set for that first trial; and

(b) in such circumstances, s 68B(1)(c) does not purport to close off the opportunity to make an election for the second trial by reference to the first setting of a date for the first trial.

13. The effects of the words of the paragraph and the cases cited above can be summarised as set out below.

14. The two cases set outer limits for the meaning of the expression "the person's trial" in s 68(1)(c), although they do not rule out the possibility that the scope of any particular application of s 68B in criminal proceedings might be even narrower. The outer limits so set can be described as follows:

(a) At the beginning of the process, there is no trial at least until an indictment has been filed (W v The Queen).

(b) At the end of the process, the first setting of the date for a trial ceases to be relevant if a new trial has been ordered after a verdict was reached in a previous trial (Tran). If there is to be a new trial, even a new trial on identical charges, then it is the time at which the date for that new trial is first set that is relevant for the purposes of an election under s 68B in relation to that new trial.

15. The two cases cited do not rule out the possibility that in some circumstances "the person's trial" for the purposes of a particular application of s 68B might refer to an even more limited part of those proceedings, and that before a verdict is reached in a trial, there may be other events that would be found to change the character of the trial sufficiently to dispose of the trial for which the date has "first" been set. However, on the interpretation of s 68B set out at [8] above:

(a) the mere vacation of a trial date as such does not change the character of the trial in a relevant respect, and therefore does not dispose of the trial concerned; and

(b) as long as that trial remains the same trial, the setting of the date that has been vacated remains the "first" allocation of a date for that trial, whatever date in due course replaces it.

Other events that might dispose of a particular trial

16. As mentioned above, there are various events that can happen after a trial date is first set, and before any verdict is returned in that trial, that might be found to have the effect of disposing of the trial for which a date has been set and re-opening the opportunity under s 68B(1)(c) for the accused person to elect for a trial by judge alone. For present purposes it is unnecessary to make any finding about the significance of such events, but it may be useful to mention them briefly to identify the general difference between events that might produce a new trial and events (for instance vacating a trial date as such) that I consider would not for the purposes of s 68B dispose of the earlier trial and produce a new trial with a new opportunity under s 68B.

17. For instance, where a trial has been aborted after it starts but before a verdict is returned, the Tran approach might be found to allow the accused to make an election before a date is set for any further trial (indeed the primary judge noted that there had been such cases in the ACT, but without identifying them).

18. It is also possible to imagine cases in which events before any hearing begins might change the character of the scheduled trial to the extent that the trial that is to go ahead should be regarded as different from the trial for which a date has first been set. This would also have the effect that the accused's ability to elect for judge-alone trial becomes available in relation to the different trial irrespective of the setting of a date for the original trial. This might be the case, for instance, if a settled indictment is amended so that the charges the accused must defend are significantly different from those that were to be defended when a trial date was first set, or if a co-accused pleads guilty to charges so that the trial is no longer to be a joint trial (Whitlam J's remark in W v The Queen at [69] about the need for an accused to know "whether there is more than one accused and what are the charges", while made in relation to an earlier stage of the proceedings, seems to support this proposition).

19. Of course, whether a trial involves a jury or is to be heard before a judge alone may be seen as in some way fundamental to the nature of the trial. However, since that aspect of the trial cannot change except within the scheme provided by s 68B, that cannot be an aspect of the trial, however fundamental, that could ever be relevant to turning the trial into a different trial for the purposes of s 68B(1)(c). Whatever are the defining features of "the person's trial" for the purposes of that paragraph, whether the trial involves a jury or only a judge cannot be one of them.

20. I agree with Besanko J's reasoning and conclusions about the operation of the Human Rights Act 2004 (ACT), and about its effect in this case.

(a) the date for the trial of the respondent was set after an indictment was filed (but before the respondent made an election under s 68B); at one stage the Director of Public Prosecutions apparently indicated an intention to amend the indictment in a minor respect, but this proposal was later abandoned and is therefore irrelevant for present purposes;

(b) the trial on that indictment had not proceeded to a verdict;

(c) the respondent has not identified anything except the vacation of the trial date that might raise the possibility that the original trial had been disposed of otherwise than by a verdict.

22. Having held that a mere vacation of a trial date as such does not dispose of "the person's trial" for the purposes of s 68B(1)(c), I find that:

(a) the vacation permitted by the primary judge was not effective to dispose of the trial for which a date had been set;

(b) there is no other basis on which to find that that trial had been disposed of; and

(c) therefore, as a result of the setting of the original trial date, the respondent's opportunity to make an election in respect of that trial had passed, and has not been "revived".

23. Nor, of course, could the opportunity to make an election be revived by the mere fact that, as a result of this appeal, a further date will need to be set for a trial on the indictment filed in August 2007.

1"> 24. The Presentation Speech made by the Attorney-General on the introduction of the Supreme Court (Amendment) Bill 1993 (ACT) on 17 June 1993 said that the requirement to elect for trial by judge alone before a trial date is set:

... protects the judicial system from misuse by a defendant who might try to use its provisions to delay his or her trial and to inconvenience the court.

25. In R v Perry (1993) 29 NSWLR 589, Gleeson CJ at 594 and Abadee J at 592 indicated in relation to judge-alone elections in NSW that the deadline for the making of an election in that jurisdiction, "before the date fixed for the trial", was aimed at preventing the appearance of judge-shopping. Of course, as Besanko J points out, that deadline is different from the one provided in the ACT by s 68B of the SCA, and so the NSW rationale may not be relevant in the ACT.

26. However, neither the expressed aim of the ACT restrictions nor, if it is relevant, the aim of preventing the appearance of judge-shopping, would seem to be significantly compromised by amending these provisions to permit an election to be made with the leave of the court after a trial date is first set, either in the general discretion of the court or in specified circumstances. Such an amendment would seem to enhance the system by providing some flexibility in cases such as this in which, apart from the clear words of the legislation, the interests of justice would seem to have favoured allowing the making of the election.

27. I note also, as did the primary judge, that the cause of possible unfairness of a jury trial identified by the respondent, namely the possible prejudicial effect on the jury of some of the victim's evidence of her actions after the alleged assault, may be able to be addressed in the course of the trial, whether on grounds relating to the relevance of the evidence or by a claim under s 137 of the Evidence Act 1995 (Cth) that the evidence should be excluded on the ground that its probative value is outweighed by the danger of unfair prejudice to the respondent.

I certify that the preceding paragraphs numbered two to twenty-seven (2-27) are a true copy of the Reasons for Judgment herein her Honour Justice Penfold.

IN THE SUPREME COURT OF THE ) No. ACTCA 6-2008

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

28. The Crown seeks leave to appeal from orders made by Higgins CJ in a criminal proceeding in this Court. The respondent to the application is Mr David Arthur Fearnside.

29. It is alleged by the applicant that on 25 October 2006 the respondent was an appointee of the Australian Federal Police. It is alleged by the applicant that on that date the respondent intentionally and unlawfully administered to Ms Fiona Corrigan an injurious substance, namely, oleoresin capsicum spray, with intent to cause her pain or discomfort contrary to s 28 of the Crimes Act 1900 (ACT).

30. On 21 June 2007 the respondent was committed for trial on that charge. The Supreme Court conducted directions hearings in the matter on 5 July 2007 and 2 August 2007. On or about 21 August 2007 an indictment was signed and filed. It charged the respondent with the above offence and, by way of a second count, with the assault of Ms Corrigan. At a directions hearing conducted by the Supreme Court on 9 October 2007 the indictment was presented. The respondent was arraigned and he pleaded not guilty. A trial date was fixed, namely, 7 April 2008. A further directions hearing was fixed for 19 March 2008.

31. The factual basis of the charges is set out in a case statement filed by the applicant. It is not necessary for me to set out the factual allegations in any detail. It is sufficient to say that it is alleged by the applicant that the respondent sprayed a strong type of capsicum spray over Ms Corrigan while she was in custody. It is alleged that act caused her considerable pain and discomfort for which she received no assistance. It is alleged that at one point, Ms Corrigan, who was naked as a result of being sprayed by another officer at an earlier point in time, splashed herself with water from the toilet bowl in her cell in an attempt to alleviate the pain and discomfort. It seems that the respondent considers that this evidence, if presented to a jury, will be prejudicial to his case in a way which cannot be overcome by a direction from the trial judge warning against the misuse of the evidence.

32. The respondent put evidence before this Court, without objection, that after he was charged, but before the committal proceedings, he consulted his legal advisers and decided that he would seek a trial by judge alone rather than a trial by jury. He had a right to do that under s 68B of the Supreme Court Act 1933 (ACT) (SCA). Despite having made that decision the respondent did not make an election in accordance with s 68B(1)(c) of the SCA before 9 October 2007 which was the date upon which the trial date of 7 April 2008 was fixed. In fact, despite his intention to elect for trial by judge alone, the respondent, or his legal advisers, in a questionnaire the parties to criminal proceedings are required to complete before trial, stated that no election had been made for trial by judge alone.

33. Section 68A provides that "[c]riminal proceedings shall be tried by a jury, except as otherwise provided by this part". The relevant Part is Pt 7 of the SCA, which also contains s 68B which is in the following terms:

_(1) An accused person in criminal proceedings shall be tried by a judge alone if - _

(a) the accused person elects in writing to undergo such a trial; and

_(b) the accused person produces a certificate signed by a legal practitioner stating that - _

(i) he or she has advised the accused in relation to the election; and

(ii) the accused person has made the election freely; and

(c) the election is made before the court first allocates a date for the person's trial; and

_(d) if there is more than 1 accused person in the proceedings - _

(i) each other accused person also elects to be tried by the judge alone; and

(ii) each accused person's election is made in relation to all offences with which he or she is charged.

(2) An accused person who elects to be tried by a judge alone may, at any time before he or she is arraigned, elect to be tried by a jury.

(3) If an accused person makes and then withdraws an election, he or she shall not make another election.

34. On 13 March 2008 the Director of Public Prosecutions, who prosecutes the proceedings on behalf of the applicant, wrote to the respondent advising him that the prosecution intended to amend the indictment "to make it clear that the second count is charged in the alternative to the first count, not in addition to the first count". Since 13 March 2008 the Director has made it clear that he no longer intends to amend the indictment. Despite that statement of intention, the Director made submissions to this Court on the type of amendments to an indictment which would or would not revive or reactivate the right to elect for trial by judge alone. In the circumstances it is not necessary to address that issue. It is sufficient for me to say that the small and, in the circumstances, obvious amendment originally proposed by the Director was of such a nature that, had it been pursued, it would not have revived or reactivated the right to elect for trial by judge alone.

35. The directions hearing fixed for 19 March 2008 did not proceed because the respondent was absent. At a directions hearing held on 25 March 2008 the respondent indicated that he wished to elect for trial by judge alone. He asked that the trial date be vacated so that he could do this. By written application dated 28 March 2008 the respondent applied for the following orders:

That the date of the trial of David Arthur Fearnside, the accused person, be vacated;
That David Arthur Fearnside, the accused person, be allowed to elect to be tried by a judge alone;
Any other orders that the Court considers appropriate.

36. The respondent's application came on for hearing before Higgins CJ on 31 March 2008. After hearing submissions, the primary judge made the following orders, relevantly:

Application of Accused to vacate trial date granted.
Leave granted for the Accused to file in court an election for trial by Judge alone.
Trial date fixed for 7 April 2008 at 10am.

37. I will refer in detail to the primary judge's reasons later in these reasons.

38. On the date of the hearing before the primary judge the respondent filed in Court an election to be tried by judge alone. That was done pursuant to the leave granted in the second order made by the primary judge. The election is signed by the applicant and it also contains a certificate of a legal practitioner. It is incorrectly dated 7 April 2008 but that is of no consequence for present purposes.

39. Section 68B does not state expressly to whom the election is to be communicated. However, it seems to me clear that the fact of the election must be communicated to the Court because the Court is the body which must make arrangements for trial by jury or by judge alone. This conclusion is supported by the reference in s 68B(1)(b) to an accused person "producing" a certificate.

40. Section 68B does not give the Court power to allow a person to elect for trial by judge alone and there is no discretion given to the Court by s 68B to make such an order. Whether a person has elected for trial by judge alone will turn on compliance with the statutory provisions, not the exercise of a statutory discretion vested in the Court. It follows that the second order made by the primary judge on 31 March 2008 did not have a statutory or other basis. Nevertheless, the primary judge no doubt saw considerable benefit in making it clear that in his opinion the result of his first order was that the election was legally effective.

41. The applicant immediately sought leave to appeal from the orders made by the primary judge on 31 March 2008 and that application came on for hearing before the President of this Court. His Honour heard submissions on the application on 2 April 2008 and then made the following orders, relevantly:

The question of leave to appeal an interlocutory decision be referred to the Full Bench of the Court of Appeal.
The appeal be listed for the same day as the application for leave.

42. The criminal proceedings came on before the primary judge later on 2 April 2008. Having regard to the matters to be determined by the Court of Appeal, the applicant applied for the trial date of 7 April 2008 to be vacated and that order was made. The respondent took the opportunity to have placed on the court file another written election in the same terms as the earlier one except that it is dated 2 April 2008.

43. On 17 April 2008 the applicant gave notice under s 34 of the Human Rights Act 2004 (ACT) (HRA) to the Attorney-General for the Australian Capital Territory and to the Human Rights Commission of the proceedings before this Court.

44. The applicant seeks leave to appeal in relation to two grounds of appeal. They are as follows:

(1) The decision to vacate the trial date was not made in the proper exercise of judicial discretion.

Particulars:

(a) The discretion took into account an irrelevant consideration, namely, the desire of the Respondent that his trial be by judge alone.

(b) The discretion was exercised for the purpose of avoiding the effect of s 68B(1)(c) Supreme Court Act 1933.

(2) The decision to accept the Respondent's election for trial by judge alone as a valid and effective election for the purposes of s 68B(1) Supreme Court Act was wrong in law.

Particulars:

The election failed to comply with the requirement of s 68B(1)(c) Supreme Court Act that it be made before the Court first allocated a date for the Respondent's trial.

45. On the appeal the applicant seeks the following orders:

(1) That the order vacating the Respondent's trial date be set aside.

(2) That the Respondent's election for trial by judge alone be declared ineffective for the purposes of s 68B(1) Supreme Court Act.

(3) That the matter be remitted to the Court to be dealt with in accordance with the reasons of the Court.

46. In his submissions to the primary judge the respondent made it clear that he was asking that the trial date be vacated so that he could elect for trial by judge alone. That was the sole reason advanced for the application for an order vacating the trial date. The respondent submitted to the primary judge that he had always wished to elect for trial by judge alone and that the only reason that was not done before 9 October 2007 was because of error or oversight. Although no evidence was put before the primary judge in support of that assertion, it is, as I have said, established by evidence put before this Court without objection.

47. In his submissions to the primary judge, the respondent accepted that absent an order vacating the trial date he did not have a right to elect to be tried by judge alone and that by reason of s 68A of the SCA the charges against him would be tried by a jury. The primary judge accepted the respondent's submission that an order vacating the trial date "revived" (to use a word used by the primary judge) his right of election. The primary judge said that the right to elect may be revived in certain circumstances and he referred to cases which have dealt with s 68B and, in particular, subs (1)(c): W v The Queen [2001] FCA 1648; (2001) 115 FCR 41 (W v The Queen) and R v Tran [2002] ACTSC 56; (2002) 167 FLR 345 (Tran). The primary judge said that one circumstance in which s 68B was "reactivated" (again, to use a word used by the primary judge) was where the trial date is vacated because the trial is aborted because of an event arising in the course of a trial, or because a witness is unavailable, or "any other reason which might be sufficient to cause the trial date to be vacated". The primary judge concluded that an order vacating the trial date would revive or reactivate the right to elect to be tried by judge alone in s 68B. He then turned to consider whether as a matter of discretion it was appropriate to vacate the trial date for the purpose of reviving or reactivating the right of election. He made reference to the common law right to a fair trial or, as he put it, not to have an unfair trial, and he referred to the decision in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. The primary judge referred to the HRA and then said:

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 [sic]. It is open, however, to reactivate that in this case.

48. The primary judge said that there were no countervailing considerations to an exercise of the discretion in favour of the respondent, such as "judge-shopping" or prejudice to the Crown. In the concluding paragraph of his reasons the primary judge said:

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.

49. In summary, the primary judge's reasoning involved consideration of two questions. The first question was whether an order vacating the trial date would revive or reactivate the right to elect for trial by judge alone. The primary judge answered that question in the affirmative. He then considered the second question which was whether in the exercise of his discretion, he should make an order vacating the trial date. He also answered that question in the affirmative.

50. It seems that the primary judge did not rely on s 21(1) of the HRA in construing or determining the meaning of s 68B(1)(c) of the SCA which was the task involved in a consideration of the first question. Rather, the primary judge reached the conclusion that an order vacating the trial date would have the effect of reviving or reactivating the right of election and in doing so he placed considerable reliance on the reasoning in W v The Queen and Tran. The primary judge referred to s 21(1) of the HRA in the context of the second question involving his discretion to make an order vacating the trial date. He considered that a consequence of not exercising the discretion to vacate the trial date would be that the right to elect for trial by judge alone would not be revived or reactivated. He considered that that consequence would impinge on the respondent's right to a fair trial as contained in s 21(1) of the HRA. As will be apparent from the passage set out in [47] above, the primary judge said that although the respondent's right to a fair trial would not, in an objective sense, be affected because a trial by jury could not be considered unfair, the right to a fair trial included a perception by the person charged that he will receive, or has received, a fair trial and, in the respondent's case, that would be affected.

51. The right of appeal to this Court is limited to an appeal from "orders" of the Court: SCA s 37E(2)(a). The word "order" is defined very widely in the SCA and includes "a judgment, decree, direction or decision": s 2 and the Dictionary. If there is an order, but it is an interlocutory order of the Court constituted by a single judge, then the appeal may only be brought with leave: s 37E(4). Both parties argued their respective cases on the basis that the primary judge had made orders within s 37E(2)(a) of the SCA, but that they were interlocutory and leave to appeal was required.

52. In my opinion, the primary judge's acts on 31 March 2008 were "orders" within s 37E(2)(a) of the SCA. The phrase "judgment or order" or a similar phrase has been the subject of a good deal of judicial consideration. I refer, for example, to Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; R v Mifsud (unreported, Supreme Court of New South Wales Court of Criminal Appeal, Gleeson CJ, Levine and Dowd JJ, 8 November 1995); R v Bozatsis (1997) 97 A Crim R 296. There appears to be no bright line test for distinguishing between judgments or orders on the one hand, and rulings on the other: The Queen v Lethlean (1995) 83 A Crim R 197. In R v Bozatsis, Gleeson CJ (with whom the other members of the Court agreed) said (at 303) that the Court needed to consider the character of the question for decision and the effect of the decision in determining whether a judicial act was a judgment or order. Whether the judicial act was final or could be revised was an important consideration. The effect of the orders made by the primary judge on 31 March 2008 is to determine in a final way the mode of the respondent's trial, that is to say, whether he is to be tried by judge alone or by jury. That means the orders have the feature of finality and the effect of the orders is sufficiently significant to impress upon them the character of a judgment or order. That conclusion is reinforced by the wide definition of order in the SCA and, in particular, the fact that that definition includes directions and decisions. In my opinion, the primary judge's acts on 31 March 2008 were orders within s 37E(2)(a) of the SCA. It is not necessary for me to consider how far the definition in the SCA expands the common law formulations set out in the above cases. On one view the definition extends them considerably.

53. I will proceed on the basis that the orders are interlocutory orders. In my opinion, leave to appeal should be granted because there is sufficient doubt attending the decision to make them and, in fact, for reasons I will give, I have concluded that the primary judge erred in law and that the appeal should be allowed. The questions raised are of substantial importance to the parties and to the public because, if the criminal proceedings against the respondent are heard by a judge alone and the respondent is convicted and it transpires that the primary judge is wrong, the result may be that the conviction is set aside: R v Perry (1993) 29 NSWLR 589; W v The Queen at 65 [75] per Whitlam J.

54. As I have said, the primary judge first addressed the question whether an order vacating the trial date would revive or reactivate the right to elect for trial by judge alone under s 68B of the SCA. The submissions before the primary judge proceeded on the basis that the right of election had been lost and could, at best, be revived or reactivated.

55. The respondent put a submission on the appeal which had not been put to the primary judge. He submitted that compliance with s 68B(1)(c) was not essential to a valid election for trial by judge alone. In other words, an election made without complying with s 68B(1)(c) was not thereby invalid (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky)). This submission was not developed in any detail and I reject it. The structure of s 68A and s 68B and the words used including those in subs (1)(c) suggest that compliance with, inter alia, subs (1)(c) is essential to a valid election. Furthermore, the Court is entitled to have regard to the consequences of holding that compliance with s 68B(1)(c) is, or is not, essential to a valid election. To allow an accused person to elect for trial by judge alone irrespective of whether a trial date has been fixed is likely to cause considerable inconvenience to the efficient and orderly administration of justice. In my opinion, compliance with s 68B(1)(c) is essential to a valid and effective election and the real question is: what do the words of the paragraph mean?

56. The competing contentions as to the proper construction of s 68B(1)(c) are clear enough. The applicant submits that the words of s 68B(1)(c) are clear and that the word "first" must be given work to do. The right of election for trial by judge alone is lost once the court first allocates a date for an accused person's trial. A second or subsequent allocation of a trial date is irrelevant to the right of election. The respondent submits that an accused person can elect for trial by judge alone at any time up to the allocation of a trial date. That means that the right of election can be revived or reactivated if a trial date is vacated. The respondent relied on authorities in which it had been held that there was a right of election even though a trial date had previously been allocated in the proceeding. The authorities on which the respondent relied were W v The Queen and Tran.

57. In Project Blue Sky, the majority (McHugh, Gummow, Kirby and Hayne JJ) referred (at 382 [71]) to the well-established principle that a court construing a statutory provision must strive to give meaning to every word in the provision. In this case that is the starting point.

58. Section 68B(1)(c) of the SCA must be interpreted in its statutory context. The relevant principles of interpretation or construction are the common law principles and the principles set out in the Legislation Act 2001 (ACT) (Legislation Act). The HRA and the interpretative principle in s 30 are not relevant for reasons I will give.

59. Particularly significant in this case are the principles in s 138 and s 139 of the Legislation Act. Section 139 requires the Court to take the purposive approach to issues of statutory interpretation. The two sections are in the following terms:

Meaning of working out the meaning of an Act

In this part:

working out the meaning of an Act _means - _

(a) resolving an ambiguous or obscure provision of the Act; or

(b) confirming or displacing the apparent meaning of the Act; or

(c) finding the meaning of the Act when its apparent meaning leads to a result that it manifestly absurd or is unreasonable; or

(d) finding the meaning of the Act in any other case.

Interpretation best achieving Act's purpose

(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

(2) This section applies whether or not the Act's purpose is expressly stated in the Act.

Note The Human Rights Act 2004, s 30(1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.

60. Subject to one qualification, s 139 of the Legislation Act can be described as the Territory's equivalent of s 15AA of the Acts Interpretation Act 1901 (Cth). It is clear enough that under s 139 a court can have regard to the purpose of a provision to determine whether more than one construction of the provision is open even though on its face the provision is not ambiguous. That follows from the definition of "working out the meaning of an Act" (which is the exercise referred to in the section) which includes by reason of the definition in s 138 "(b) confirming or displacing the apparent meaning of the Act" and, in any event, is the position at common law: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235 per Dawson J. Neither s 139 nor s 15AA of the Commonwealth Act authorises a court to rewrite legislation, and the construction adopted must be one which is open having regard to the words of the legislation. The qualification referred to earlier is that the words in s 139 differ from those in s 15AA. Section 139 refers to an interpretation which would "best achieve" the purpose of the provision, whereas s 15AA refers to preferring a construction that would promote the purpose or object underlying the provision to a construction that would not promote that purpose or object. It is not clear on the authorities whether the difference in the words used means that the sections have different effects: see Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at 262 per Dawson, Toohey and Gaudron JJ; Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed, LexisNexis Butterworths, 2006) at 37-38 [2.15].

61. Section 139 of the Legislation Act does not have any wider operation than that which I have indicated. It is convenient to deal with the suggestion (which I reject) that the Court in Kingsley's Chicken Pty Ltd v Queensland Investment Corp [2006] ACTCA 9 (Kingsley's Chicken) gave a much wider operation to s 139 in the context of my examination of the scope and effect of s 30 of the HRA.

62. The purpose of s 68B(1)(c) of the SCA was described by the Attorney-General in his Presentation Speech for the Supreme Court (Amendment) Bill 1993 (ACT), which introduced the right of election, as follows:

The Bill also protects the judicial system from misuse by a defendant who might try to use its provisions to delay his or her trial and to inconvenience the court. An accused person who wishes to waive the right to trial by jury must elect to do that before the trial date is fixed. The election may be withdrawn before the trial commences, but once withdrawn no further election may be made.

The Court can have regard to this material by reason of s 141 and s 142 of the Legislation Act.

63. In R v Perry, the New South Wales Court of Criminal Appeal considered s 32(4) of the Criminal Procedure Act 1986 (NSW), which allowed an accused person to elect to be tried by a judge alone provided the election was made "before the date fixed for the trial" of the accused person. Gleeson CJ considered the legislative purposes of the subsection and said (at 594):

I have no doubt that one of the legislative purposes underlying s 32(4) of the Criminal Procedure Act is concerned with an important matter of appearances. One of the reasons why the legislation provides that an election for trial without a jury must be made before the date fixed for trial is that if an election could be made on the date fixed for trial, it might appear that accused persons were making such elections in the light of a knowledge of the identity of the trial judge. It is, of course, impossible to eliminate altogether appearances of that kind, and there may well be circumstances in which elections will in fact be made in the light of some knowledge of the identity of a trial judge. However, it clearly goes some way towards eliminating such appearances if elections have to be made before the trial date.

The making of an election on the date fixed for trial is such an obvious possibility that it is clear from the language of s 32(4) that the legislature intended to eliminate that possibility. In its legislative context I have no doubt that the requirement that an election for trial by judge alone must be made before the date fixed for trial is mandatory.

64. In R v Coles (1993) 31 NSWLR 550 the New South Wales Court of Criminal Appeal held that an election for trial by judge alone was valid and effective in circumstances in which the judge had adjourned the commencement of a trial for a day, at least in part, to allow an election for trial by judge alone to be made.

65. The wording of what I will call the time limit in s 68B(1)(c) is different from the wording of the New South Wales provision as it was when considered in R v Perry and R v Coles. The rationale for s 68B(1)(c) may also be different in that the Attorney-General's Second Reading Speech (see [62]) suggests that it was inserted to avoid delay and inconvenience to the Court rather than to avoid judge-shopping.

66. As I have said, the respondent relied on the reasoning in W v The Queen and Tran. In the former case the appellant was convicted of four offences of a sexual nature. One ground of appeal was that the trial judge had erred in refusing the appellant the right of election to trial by judge alone under s 68B of the SCA. A trial date had been fixed before an indictment had been presented and, indeed, before a draft indictment had been filed. The appellant had purported to elect for trial by judge alone after the trial date had been fixed, but the trial judge ruled that he could not do so. Whitlam J (with whom Madgwick J agreed at 66 [77]) held that the trial judge erred. Miles J dissented on this point.

67. Whitlam J referred to the words in s 68B(1) "[a]n accused person in criminal proceedings" and said that on being committed for trial the respondent was "an accused person" but that until an indictment was filed he was not "an accused person in criminal proceedings". Whitlam J said (at 64 [71]):

The relevant power to allocate a date was only enlivened when the indictment was filed in court on the morning of 18 September 2000. The order of Higgins J then made, standing the matter over to 2.15 pm that afternoon, may be accepted as the first allocation of a date for trial for the purposes of s 68B(1)(c). However, before that order was made, the appellant had made his election in writing and filed it in the Registry. Fortuitously he was able to do so because he knew the charges he would face as a result of his Honour's earlier ruling on 15 September 2000.

68. The essence of Whitlam J's reasoning was that until an indictment or information was filed there was no criminal proceeding within the SCA and there was no power to allocate a trial date within s 68B(1)(c) of the SCA before there was a criminal proceeding. The appellant had elected for trial by judge alone before the Court had, in accordance with law, first allocated a date for the appellant's trial within s 68B(1)(c). Whitlam J went on to say that the jury had no jurisdiction and the trial of the appellant was a nullity.

69. The applicant submitted that the decision in W v The Queen is distinguishable from the present case. That submission is correct, as in this case an indictment had been presented or filed before the first allocation of a trial date. I respectfully agree with reasoning of the majority in W v The Queen, but that reasoning does not determine the outcome of the present case.

70. In Tran the appellant in March 2000 was found guilty by a jury of serious crimes. In December 2000 the convictions and sentences were quashed and a retrial ordered. Following this the Director of Public Prosecutions of the Australian Capital Territory re-presented the indictment upon which the earlier trial had proceeded. In April 2001 the appellant for the first time signed a notice of election for the retrial to take place before a judge alone. The Court (Crispin, Higgins and Gray JJ) held the appellant had the right to elect for trial by judge alone, saying (at 351 [60]-[63]):

It seems to us that the result of the order for a new trial is that the accused is put back in the same position as if no trial had been held. Nevertheless, the Crown may elect to proceed on the indictment already filed and if the accused has pleaded to it (and adheres to the plea) the next step is to set a date for that new trial. The previous arraignment, if the Crown elects to proceed on the existing indictment, stands.

The choice by the accused of trial by judge alone arises before the date is set for the trial of counts contained in an indictment duly filed or presented, whether or not the accused has been arraigned. The relevant trial in this case, the first trial being held to have been defective, is the new trial.

Being a new trial, this accused is in the same position as if an indictment has been presented or filed and he has been arraigned but no date for the trial has yet been set.

In present circumstances, in our view, as the court has yet to allocate a date for this trial of the accused, he may validly elect for trial by judge alone. Even though, having been arraigned, the accused might not be able to change that election (s 68B(3)).

1"> 71. Again, the applicant submitted that the decision in Tran is distinguishable. That submission is correct. There is no issue here of a trial being held and then an appeal court later finding that the trial was defective. In my opinion, there are some arguments which may be put against the reasoning in Tran, but it is not necessary for me to consider them. The case is distinguishable and the submissions before this Court proceeded on the basis that the decision is correct.

72. In my opinion the meaning of s 68B(1)(c) of the SCA is clear. The election for trial by judge alone must be made before the Court first allocates a date for the person's trial, which in this case was before 9 October 2007. This construction gives the word "first" work to do whereas the respondent's proposed construction does not. This construction gives effect to every word in s 68B(1)(c) and does not produce a result which is "incongruous" or contrary to the objects of the Act or "capricious and irrational": Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 305 per Gibbs CJ, at 311 per Stephen J, at 321 per Mason and Wilson JJ. In enacting s 68B, the legislature's purpose was to create a new right, namely, the right to elect for trial by judge alone, and s 68B(1)(c) is part of the definition of the right or a condition of the right. It might be said that this construction of s 68B(1)(c) produces a harsh result where, as in this case, it may be accepted that the respondent did not exercise his right to elect within the prescribed time due to error or inadvertence (although precise details were not provided). Although a statutory purpose to give a right of election is obvious, it must be noted that the legislature rarely pursues a purpose in an unqualified way or without regard to other, and perhaps countervailing, considerations and that is the case here (see Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at 142-143 [5]- [6] per Gleeson CJ).

73. I have said that the HRA and the interpretative principle of s 30 of that Act are not relevant to the resolution of the issues before the Court and I turn now to explain why I have reached that conclusion.

74. The primary judge referred to the HRA but he did not rely on it for the purposes of deciding that an order vacating the trial date would have the effect of reviving or reactivating the right of election in s 68B. In other words, he reached his conclusion that an order vacating the trial date would revive or reactivate the right of election without regard to the provisions of the HRA. The primary judge did rely on the provisions of the HRA in deciding that he should exercise his discretion to make an order vacating the trial date. His reasoning in that regard is set out above ([47]).

75. On the application and appeal, the applicant challenged this reasoning and submitted that the provisions of the HRA did not assist in the resolution of the issues before the Court, in particular the proper construction of s 68B(1)(c) of the SCA or the proper exercise of the discretion to make an order vacating the trial date. The respondent sought to support the primary judge's reasoning, but it is fair to say that he did not put the provisions of the HRA at the forefront of his submissions. The Attorney-General intervened and his counsel made detailed submissions on whether the provisions of the HRA were relevant to either of the two issues before the Court. The Human Rights and Discrimination Commissioner did not intervene but she did offer to make written submissions on the provisions of the HRA if invited by the Court to do so.

76. The HRA came into effect on 1 July 2004. Its long title describes it as an Act "to respect, protect and promote human rights". It contains a statement of a number of civil and political rights. They are set out in Pt 3 and are clearly based on the International Covenant on Civil and Political Rights. Only individuals have human rights under the Act and the rights set out in the Act are not exhaustive of the rights an individual may have under domestic or international law: s 6 and s 7.

77. Human rights in the HRA do not give individuals enforceable rights of action against other persons or entities. In fact, if a Territory law is inconsistent with a human right the law prevails and even if the Court is persuaded that it is appropriate to make a declaration of incompatibility under s 32(2), subs (3) provides that such a declaration does not affect:

(a) the validity, operation or enforcement of the law; or

(b) the rights or obligations of anyone.

78. The human right which the primary judge considered was relevant is that contained in s 21 of the HRA. That section relevantly provides:

(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

79. Section 28 is also in Pt 3 of the HRA and it provides:

(1) Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(a) the nature of the right affected;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

This section reflects one of the statements in the Preamble to the Act:

Few rights are absolute. Human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society. One individual's rights may also need to be weighed against another individual's rights.

A Territory law which sets a reasonable limit on a human right within s 28 of the HRA is not incompatible or inconsistent with the human right; it simply sets a permissible limit or boundary to the human right.

80. As I have said, the HRA does not create legally enforceable rights. However, human rights are recognised in a variety of other ways. First, in s 30 the legislature has provided for an interpretative principle as follows:

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

Secondly, as previously stated, the Court may make a declaration of incompatibility under s 32 and that leads to a political process under s 33. Thirdly, under Pt 5 proposed Territory Bills are subject to political scrutiny for their consistency with human rights. Finally, the Human Rights Commission is given a review function under Pt 6.

81. The above summary highlights the salient points of the HRA as it stood at the time the appeal was heard. Significant amendments were made to the Act by the Human Rights Amendment Act 2008 (ACT). Some of the amendments came into effect on 18 March 2008 and others came into effect on 1 January 2009.

82. The amendments in the latter category include the insertion of Pt 5A, which gives individuals rights of action (not including rights of action for damages) against public authorities for the infringement of human rights. The circumstances in which those rights arise are defined in Pt 5A, but it is not necessary for me to set them out.

83. The amendments that came into effect on 18 March 2008 are reflected in the above summary, but the position before that date should also be noted because such authorities as there are in this jurisdiction on the provisions of the HRA deal with the Act as it was before that date. Before 18 March 2008, s 28 consisted only of what is now subs (1); subs (2) was added by the Human Rights Amendment Act 2008 (ACT). More importantly for present purposes is the change effected to s 30. Before 18 March 2008, s 30 read:

(1) In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.

(2) Subsection (1) is subject to the Legislation Act, section 139.

Note Legislation Act, s 139 requires the interpretation that would best achieve the purpose of a law to be preferred to any other interpretation (the purposive test).

(3) In this section:

working out the meaning of a Territory law _means - _

(a) resolving an ambiguous or obscure provision of the law; or

(b) confirming or displacing the apparent meaning of the law; or

(c) finding the meaning of the law when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d) finding the meaning of the law in any other case.

84. The Court was referred to a recent decision of this Court which discussed the meaning of s 30 of the HRA in its pre-amended form. In Kingsley's Chicken the Court said (at [49]-[52]):

It should be noted that the Legislation Act does not merely provide that the court may have regard to legislative history in construing an Act. Rather, s 139 is a positive requirement that -

(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

This provision, it seems to us, is in similar form to the interpretive provision in the Human Rights Act 1998 (UK) referred to by the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557. Section 3(1) of that Act provides that -

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

An equivalent provision is to be found in s 30(1) of the Human Rights Act 2004, which provides that -

(1) In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.

The legislative direction to "prefer" an interpretation that is consistent with a policy objective was given effect to in Ghadidan [sic] v Godin-Mendoza. Lord Nicholls of Birkenhead said (at 571) -

the interpretive obligation decreed by section 3 is of an unusual and far reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question.

85. The Convention rights referred to in s 3(1) of the Human Rights Act 1998 (UK) are those contained in the European Convention on Human Rights. In Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 (Ghaidan) the House of Lords gave s 3(1) of the Human Rights Act 1998 (UK) a very broad operation including, inter alia, an operation which allowed a court to depart from the unambiguous meaning the legislation would otherwise bear and to read in words which changed the meaning of the legislation: at 571-572 [29]-[32] per Lord Nicholls of Birkenhead, at 601 [122] per Lord Rodger of Earlsferry.

86. In the present case, it was suggested that the Court in Kingsley's Chicken had sanctioned the adoption of the Ghaidan approach. I do not think that is the case. In my opinion, in the passages I have set out, the Court was observing that each of s 3(1) of the United Kingdom Act, s 139 of the Legislation Act and s 30(1) of the HRA imposed a "positive requirement" to "prefer" a particular type of interpretation. It was to that extent that s 139(1) was in "similar form" to s 3(1) of the United Kingdom Act and s 30(1) was an "equivalent provision" to s 3(1). The Court was not suggesting that s 139(1) of the Legislation Act or s 30(1) of the HRA authorised and required a court to take the type of approach taken by the House of Lords in Ghaidan. If I am wrong, and the Court was suggesting that that approach could and should be taken, then I would respectfully decline to follow the Court's observations, which were obiter.

87. In relation to s 139, those observations do not recognise the difference in wording between s 139(1) of the Legislation Act and s 3(1) of the United Kingdom Act, or the well-established authorities on the scope and operation of s 15AA of the Acts Interpretation Act 1901 (Cth). Nor, in my respectful opinion, does s 30 in its pre-amended form, or in its present form, authorise and require the Court to take the type of approach taken by the House of Lords in Ghaidan.

88. The scope and operation of s 30 in its pre-amended form is far from clear. Section 30(1) was expressed to be subject to the Legislation Act s 139: s 30(2). Section 139 of the Legislation Act requires the Court to ascertain the purpose of a law and then adopt the interpretation which best achieves that purpose. In my opinion the effect of s 30 of the HRA in its pre-amended form was that a Court interpreting a Territory law applied s 139 of the Legislation Act by reference to the principles which have been developed in relation to the application of that section, with the qualification that if the law was open to two interpretations which best achieved the purpose of the law then s 30 required the Court to prefer the interpretation which was also consistent with the human right.

89. In its present form, s 30 appears to give the Court a broader power to adopt an interpretation of a Territory law which is consistent with a relevant human right. I am conscious of the fact that discussing the matter in the abstract is of limited assistance. Nevertheless, I think s 30 would enable a Court to adopt an interpretation of a legislative provision compatible with human rights which did not necessarily best achieve the purpose of that provision or promote that purpose, providing the interpretation was consistent with that purpose. On the other hand, I do not think s 30 authorises and requires the Court to take the type of approach taken by the House of Lords in Ghaidan. There is no reference to purpose in s 3(1) of the United Kingdom Act and the primary constraint in that subsection is stated in terms of what is or is not possible. By contrast, under s 30 in the HRA the purpose or purposes of the legislative provision must be ascertained through well-established methods, and the interpretation adopted by the Court must be consistent with that purpose or those purposes.

90. I have considered the explanatory statements in relation to s 30 in its pre-amended form and s 30 in its present form. I am permitted to consider the explanatory statements: s 141 and s 142 of the Legislation Act. Nothing said in those statements causes me to alter the conclusions expressed above.

91. The Court was also referred to the decision in Stevens v McCallum [2006] ACTCA 13. In that case the Court referred to s 21(1) of the HRA and then said (at [138]):

138. Those rights are both recognised and enforceable (see R v YL [2004] ACTSC 115; Skaramuca v Craft [2005] ACTSC 61; SI bhnf CC v KS bhnf IS [2005] ACTSC 125). There is, of course, no specified remedy for breach but, in proceedings of the kind now under consideration, the action required to remedy a breach of s 21(1) (HR Act) is simply to declare the impugned trial to have miscarried, set aside the verdict and sentence and remit the matter for a hearing according to, and not contrary to, law.

92. For reasons I have given, the rights in the HRA as it stood before 1 January 2009 were not "enforceable" by legal action (cf Pt 5A - see [82] above).

93. Counsel for the Attorney-General submitted that in a case such as the present there is, in effect, a three-stage process. First, it is necessary to consider whether s 68B of the SCA "enlivens" a human right. Secondly, if, but only if, the answer to the first question is yes, it is necessary to consider whether s 68B contains a limitation which is reasonable within s 28. Thirdly, if, but only if, the answer to the first question is yes and the answer to the second question is no, it is necessary to consider and apply the interpretative principle in s 30. The Attorney-General went on to submit that s 68B did not enliven a human right and that it is not necessary to proceed to the second or third stages. Alternatively, he submitted that s 68B(1)(c) is a reasonable limit within s 28, or in the further alternative, s 68B(1)(c) is so clear in its terms that it does not permit of an interpretation compatible with the alleged human right.

94. The human rights set out in the HRA are in Pt 3, as is s 28, and, in my opinion, the Attorney-General's submission that the human right for the purposes of applying the principle of interpretation in s 30 is the human right as defined in Pt 3, including s 28, is correct. The relevant human right is the right defined by any reasonable limit within the terms of s 28. That conclusion suggests that the order of the Attorney-General's three-stage process is correct. On the other hand, s 30 provides for a principle of interpretation and it might be said that it is not possible to apply s 28 without interpreting the relevant Territory law and therefore without applying s 30. That might suggest that it is not possible to distinguish clearly between stages two and three.

95. The courts in New Zealand have grappled with this problem of the proper approach to similar provisions. The New Zealand Bill of Rights Act 1990 (NZ) has an equivalent, although not identical, section to s 28, that is, s 5, and an equivalent, although not identical section to s 30, that is, s 6. In Moonen v Film and Literature Board of Review (No 1) [1999] NZCA 329; [2000] 2 NZLR 9 (Moonen (No 1)) at [17]-[19] the Court of Appeal suggested that a five-step approach was appropriate. The adoption of the Moonen (No 1) approach would require this Court to apply s 28 and s 30 together. If only one meaning is open then that is the meaning which is adopted. On the assumption that there is more than one meaning available, s 28 and s 30 require the Court to adopt the meaning that constitutes the least possible limitation on the right in question. The Court then considers if the limitation can be justified under s 28.

96. In Moonen v Film and Literature Board of Review (No 2) [2002] NZCA 69; [2002] 2 NZLR 754 the Court of Appeal was asked to reconsider the five-step approach described in Moonen (No 1). It declined to do so, noting that the Court in Moonen (No 1) did not intend the approach to be prescriptive and that other approaches were open.

97. The Supreme Court of New Zealand in R v Hansen [2007] NZSC 7; [2007] 3 NZLR 1 (Hansen) was prepared to consider the proper approach and by a majority favoured an approach to the second and third stages broadly similar to that advanced by the Attorney-General in this case. Tipping J said (at 37 [92]):

A summary may be helpful:

Step 1. Ascertain Parliament's intended meaning.

Step 2. Ascertain whether that meaning is apparently inconsistent with a relevant right or freedom.

Step 3. If apparent inconsistency is found at step 2, ascertain whether that inconsistency is nevertheless a justified limit in terms of s 5.

Step 4. If the inconsistency is a justified limit, the apparent inconsistency at step 2 is legitimised and Parliament's intended meaning prevails.

Step 5. If Parliament's intended meaning represents an unjustified limit under s 5, the Court must examine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted.

Step 6. If it is not reasonably possible to find a consistent or less inconsistent meaning, s 4 mandates that Parliament's intended meaning be adopted.

The approaches of Blanchard J (at 27 [60]) and McGrath J (at 66 [192]) were to similar effect.

98. It seems to me that the general approach taken by the majority in Hansen is the correct one, although whether that will be so in every case is best left for a case in which the issue is decisive and is the subject of detailed submissions from both sides: see Wilberg H, "The Bill of Rights and Other Enactments" [2007] NZLJ 112. In the present case any reliance on the HRA fails at the first stage.

99. At the first stage one must consider whether the relevant legislative provision, that is, s 68B(1)(c) of the SCA, affects, impinges upon or diminishes a relevant human right, that is, the right in s 21(1) of the HRA. There are two broad aspects to s 21(1) of the HRA, and they relate to the nature and quality of the body deciding the criminal charges and the nature and quality of the hearing conducted before it. The body must be competent, independent and impartial. The hearing must be fair and, subject to the qualifications in subs (2), conducted in public. The primary judge and the respondent relied on the right to a fair hearing.

100. It might be said that it would be a surprising conclusion that a trial by jury would not secure to all accused persons a fair hearing by a competent, independent and impartial court having regard to the facts that before the Supreme Court (Amendment) Act 1993 (ACT) all charges of serious criminal offences were tried by jury, that in some other jurisdictions in Australia a trial must be by jury and there is no right in an accused person to elect for trial by judge alone and that in the case of Commonwealth offences trial by jury is prescribed by s 80 of the Constitution. Under s 31(1) of the HRA, a court in interpreting a human right may have regard to international law and the judgments of foreign and international courts and tribunals. Those sources indicate that s 21 secures certain rights and the Attorney-General set out those rights in his outline of submissions. Those sources also indicate that, subject to the usual safeguards and rules (see, for example, the provisions of the Juries Act 1967 (ACT) concerning juries under the common law system), a jury is a competent, independent and impartial body for the purpose of the trial of criminal charges: Holm v Sweden, 25 November 1993, Series A No 279-A (European Court of Human Rights); Pullar v United Kingdom, 10 June 1996, Reports 1996-III (European Court of Human Rights).

101. Furthermore, a jury trial would not result in an unfair hearing for the purposes of s 21(1) of the HRA. I do not think that fairness can turn on the perception of the defendant; it is a question of objective fact, although clearly the perception of an objective member of the public may be relevant to other issues such as bias. In the present case the only matter said by the respondent to raise unfairness in a trial by jury is the possible prejudicial effect on the jury of the evidence of the victim that, while naked, and without being given any assistance, she tried to wash herself with the water from the toilet bowl in her cell. While no submissions were made identifying the precise provisions of the relevant Territory laws, it is clear that under Australian law there are a number of discretions designed to protect the position of an accused person: Heydon JD, Cross on Evidence (7th Australian ed, LexisNexis Butterworths, 2004) at 352-356 [11125]; R v Swaffield [1998] HCA 1; (1997) 192 CLR 159. Those discretions are designed to ensure, among other things, that the trial is fair. In my opinion, the right to elect for trial by judge alone is not part of, or an aspect of, the right to a fair trial in s 21 of the HRA.

102. As I accept the Attorney-General's submission in relation to the first stage, it is not strictly necessary to consider the second and third stages. However, as the Attorney-General made submissions in relation to those stages I will briefly say something about them.

103. In order to address the second stage, I must assume (contrary to my earlier conclusion) that the opportunity to elect for trial by judge alone is part of, or an aspect of, the right to a fair trial in s 21 of the HRA. The ordinary or intended meaning of s 68B(1)(c) of the SCA is that the right to elect must be made before the court first allocates a date for the person's trial. The question is whether that is a reasonable limit that can be demonstrably justified in a free and democratic society. No doubt a time limit such that the making of an election before a trial commences is necessary. At the same time, as the legislation and rules in other jurisdictions in Australia make clear, other time limits can be prescribed or, alternatively, a different approach can be taken involving the conferring of a discretion on the Court to relax the time limit in appropriate circumstances. Clearly, the matters in s 28(2) must be considered, and assistance in this regard is provided by overseas authorities which have considered the issue (see, for example, Moonen (No 1), Hansen, R v Oakes [1986] 1 SCR 103 at 140 et seq per Dickson CJ, R v Sharpe [2001] SCR 45 at 102 [97]). These matters were not addressed in detail on both sides of the question and I have concluded that it is not appropriate for me to express any final views about the possible application of s 28.

104. Had it been necessary to apply the interpretative principle in s 30, that principle would not have displaced the ordinary or intended meaning of s 68B(1)(c). The words of s 68B(1)(c) are too clear to admit of any interpretation other than that which I have adopted.

105. I return then to the proper construction of s 68B(1)(c) of the SCA. For the reasons I have already given, in my respectful opinion, the primary judge erred in concluding that an order vacating the trial date had the consequence that the right to elect for trial by judge alone was revived or reactivated. It follows that neither the purported right of election filed in Court on 31 March 2008, nor the purported right of election filed in Court on 2 April 2008, was a valid and effective election for the purposes of s 68B of the SCA. The primary judge therefore erred in making the second order made on 31 March 2008.

106. The primary judge exercised the discretion to make an order vacating the trial date on a basis which was legally incorrect. In those circumstances the exercise of the discretion by the primary judge miscarried.

107. In the alternative, even if an order vacating the trial date revived or reactivated the right of election under s 68B, in my respectful opinion, it would not be a proper exercise of the discretion to exercise it solely on the ground that it would revive or reactivate the right of election. It is plain that the primary judge did so solely on that ground because on 31 March 2008 he vacated the trial date of 7 April 2008 and then refixed it for the same date.

108. The application for leave to appeal should be granted and the appeal should be allowed. The second order made by the primary judge on 31 March 2008 should be set aside. There is no utility in setting aside the first order because the date has passed. The third order made by the primary judge on 31 March 2008 was varied by the primary judge on 2 April 2008 and there is no utility in setting aside the order made by the primary judge on the latter date.

109. The applicant sought a declaration that the two purported written elections by the respondent were not valid and effective elections for the purposes of s 68B of the SCA. That would be an unusual order to make on appeal, but I think it is one called for in the circumstances of this case. It was not suggested by the respondent that this Court did not have power to make such a declaration and I think the Court does have such power: SCA s 37O; Court Procedures Rules 2006 (ACT), r 2900. It is desirable that such a declaration be made so that the legal position in relation to the purported elections is perfectly clear. I would make such a declaration.

110. In my opinion, the following orders should be made:

1. The application for leave to appeal from the orders made by Higgins CJ on 31 March 2008 be granted.

3. The second order made by Higgins CJ on 31 March 2008 be set aside.

In addition, the Court should make a declaration that the purported written elections for trial by judge alone made by the respondent and filed in Court on 31 March 2008 and 2 April 2008 respectively are not valid and effective elections for the purposes of s 68B of the Supreme Court Act 1933 (ACT).

I certify that the preceding paragraphs numbered twenty-eight to one hundred and ten (28-110) are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Solicitor for the Applicant: Director of Public Prosecutions (ACT)

Solicitor for the Intervener: ACT Government Solicitor

Human Rights Amendment Act 2008(ACT)

Supreme Court (Amendment) Act 1993(ACT)

Interpretation Act 1901

Procedures Rules 2006

Rights Amendment Act 2008

Zealand Bill of Rights Act 1990

Court (Amendment) Act 1993

Human Rights Act 1998

New Zealand Bill of Rights Act 1990