R v Girvan [2012] ACTSC 142

Criminal Proceedings Legislation Amendment Act 2011 (ACT)

Human Rights Act 2004 (ACT), s 21(1)

Legislation Act 2001 (ACT), ss 6, 84

Supreme Court Act 1933 (ACT), s 68B

Acts Interpretation Act 1915 (SA), s 16(1)(c)

Interpretation Act 1984 (WA), s 37(1)(c)

Gans, J, Henning, T, Hurnter, T, and Warner, K, Criminal Process and Human Rights (Federation Press, 2011)

Garner, B A, (ed), Black's Law Dictionary (Thomson West, 8th ed, 2004)

Pearce, D C, and Geddes, R S, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011)

Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed, 2009)

Oxford English Dictionary (Clarendon Press, 2nd ed, 1989)

Ah Hing v Hough (1926) 28 WALR 95

Colonial Sugar Refinery Co Ltd v Irving [1905] AC 369

Commonwealth of Australia v Vance [2005] ACTCA 35; (2005) 158 ACTR 47

Director of Public Works v Ho Po Sang [1961] AC 901

Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Howard v Bondfield (1974) 3 ACTR 62

Keating v Calas [1974] VicRp 47; [1974] VR 381

Looker v Holcomb [1827] EngR 460; (1827) 4 Bing 183; 130 ER 738

Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

MCP Muswellbrook Pty Ltd v Deutsche Bank (Asia) AG (1988) 12 NSWLR 16

Newell v The King [1936] HCA 50; (1936) 55 CLR 707

R v McNeill (No 3) [2007] NFSC 4; (2007) 209 FLR 176

Re Government Railways No 1 Award [1918] AR (NSW) 213

Richardson v Shipp [1970] Tas SR 105

Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515

W v The Queen [2001] FCA 1648; (2001) 115 FCR 41

Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229

Zollner v Sydney Municipal Council (1917) 17 SR(NSW) 164

1. The election made by William Thomas Girvan on 14 July 2011 is effective to require that the trial of the indictment dated 1 April 2011 be by judge alone.

1. Over some years, there has been discussion in this Territory about the extent of the availability for accused persons of an election to be tried not by a jury but by judge alone and whether it was availed of by accused persons too readily or too frequently.

2. As a result of this consideration, the ACT Legislative Assembly enacted the Criminal Proceedings Legislation Amendment Act 2011 (ACT) (the amending Act), which limited the class of offences in respect of which such an election could be made. That Act amended s 68B of the Supreme Court Act 1933 (ACT) on 7 July 2011.

3. On 20 January 2011, the accused, William Thomas Girvan, was committed for trial to this Court on two counts of committing an act of indecency on a person under the age of 16 years. The indictment was filed on 1 April 2011.

4. On 14 July 2011, Mr Girvan elected for trial by judge alone. As the mode of trial is a question of jurisdiction, I raised with the parties at the beginning of the trial the question of whether the election was valid.

5. On 13 August 2012, I declared that the election was valid. As the question has some current importance, I now publish my reasons.

6. Section 68B of the Supreme Court Act empowers an accused to elect for trial by judge alone. Until 7 July 2011, it provided as follows:

Trial by judge alone in criminal proceedings

(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.

7. As from 7 July 2011, the amendments made by the amending Act inserted for

s 68B(1) a new chapeau (that is the introductory words of the section which govern the subordinate provisions that follow: Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed, 2009) at 290) as follows:

(1) A criminal proceeding against an accused person for an offence other than an excluded offence must be tried by a judge alone if -

8. There were some minor drafting changes in the balance of the sub-section and a new sub-section 68B(4) was included as follows:

excluded offence means an offence against a provision mentioned in an item in schedule 2 (Trial by judge alone - excluded offences), part 2.2, column 3 of an Act mentioned in the item, column 2.

9. Schedule 2 included a range of offences involving a death or sex-related crimes. It included the offence under s 61 of the Crimes Act 1900 (ACT) of committing an act of indecency upon a young person. This was the offence in respect of which each of the two counts on the indictment were laid against Mr Girvan.

1 April 2011 Indictment filed in the Supreme Court;

7 July 2011 Amendment to s 68B of the Supreme Court Act commences;

14 July 2011 Mr Girvan makes election for trial by judge alone;

2 August 2011 Mr Girvan arraigned and the trial date first set;

11. The question was whether the amendment of s 68B of the Supreme Court Act had ended Mr Girvan's opportunity to elect for trial by judge alone before he made the election.

12. There were, regrettably, no transitional provisions for the amendments, so no indication was given by the legislature as to whether it had considered this position and, if so, what intention it was expressing.

13. In D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) at 211; [6.8], the authors suggest that

[t]o avoid the need to include transitional provisions whenever Acts or sections of Acts are repealed or omitted, Interpretation Acts include provisions having the effect of preserving the position as it existed under the repealed Act. In particular, express words are necessary to take away rights that have accrued or liabilities that have been incurred under a repealed Act (footnote omitted).

14. Reference in the footnote was made, inter alia, to s 84 of the Legislation Act 2001 (ACT), which provides:

Saving of operation of repealed and amended laws

(1) The repeal or amendment of a law does not -

(a) revive anything not in force or existing when the repeal or amendment takes effect; or

(b) affect the previous operation of the law or anything done, begun or suffered under the law; or

(c) affect an existing right, privilege or liability acquired, accrued or incurred under the law.

(2) An investigation, proceeding or remedy in relation to an existing right, privilege or liability under the law may be started, exercised, continued or completed, and the right, privilege or liability may be enforced and any penalty imposed, as if the repeal or amendment had not happened.

(3) Without limiting subsections (1) and (2), the repeal or amendment of a law does not affect -

(a) the proof of anything that has happened; or

(b) any right, privilege or liability saved by the law.

(4) This section does not limit any other provision of this chapter and is in addition to any provision of the law by which the repeal or amendment is made.

(5) This section is a determinative provision.

(6) In this section:

liability includes liability to penalty for an offence against the law.

penalty includes punishment and forfeiture.

privilege includes immunity.

right includes capacity, interest, status and title.

15. As can be seen, this provision applies not just to the repeal of laws but also to their amendment. It is worth noting, too, that sub-s (6) is a reference to s 6 of the Legislation Act, which provides that a determinative provision is one which "may be displaced expressly or by a manifest contrary intention".

16. Applying this provision, then, it appears that if the opportunity to make an election was a right or privilege that existed when the amending Act commenced, that opportunity would be preserved notwithstanding the amendment to s 68B of the Supreme Court Act.

(a) Is the opportunity to make an election a right or a privilege?

(b) If so, was it an existing right or privilege that Mr Girvan had by 7 July 2011?

18. Ordinarily, a statute that is concerned with procedure does not create or alter rights. Thus, the provisions of the statute apply as from the date they are made to procedure thereafter no matter what previously applied. As Dixon CJ said in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v Erlanger [(1876) 3 Ch D 62]. 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done' [Republic of Costa Rica v Erlanger at 69].

The distinction is clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its application. In some cases they have been due to the discovery in the nature or context of the legislation or in its subject matter of indications, whether faint and conjectural or strong and persuasive, of a desire to cover situations already existing. In other cases the difficulty has been traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance. Again, enactments in truth conferring or denying rights are not seldom expressed in terms of remedy.

19. Perhaps more relevantly, a unanimous court said in Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 at 518-9:

The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided they do not affect existing rights or obligations.

[O]rdinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish L.J. in the passage cited by Dixon C.J. in Maxwell v Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years: see also Wright v Hale per Wilde B; Attorney-General v Sillem, per Lord Wensleydale; Warner v Murdoch, per James L.J. (footnotes omitted).

21. Their Honours had, in a preceding passage, however, referred to Newell v The King [1936] HCA 50; (1936) 55 CLR 707, where, after an accused had been arraigned on an indictment for manslaughter and an earlier trial had ended in a hung jury, the Jury Act 1936 (Tas), had been amended to provide for majority verdicts of a jury in certain circumstances. The Court there held that the amendment did not apply to the appellant's further trial. In that case, Latham CJ expressed the view (at 711) that "[t]he right to a jury is one of the fundamental rights of citizenship", while Evatt J (at 713) held that "trial by jury has been universally regarded as a fundamental right of the subject". Of course, the amendment did not take away the right to trial by jury, only the right to unanimity of 12 jurors.

22. Indeed, Latham CJ referred with approval (at 711-12) to what Best CJ said in Looker v Holcomb [1827] EngR 460; (1827) 4 Bing 183 at [188]-[189]; [1827] EngR 460; 130 ER 738 at 740-1:

An act of parliament which takes away the right of trial by jury, and abridges the liberty of the subject, ought to receive the strictest construction; nothing should be holden to come under its operation that is not expressly within the letter and spirit of the act.

23. In Rodway v The Queen, the Court stated (at 520-1) that Newell v The King was to be understood in the following way:

[W]hat appears to have been important was that upon the commencement of his trial the accused had joined issue with the Crown and had placed himself in jeopardy of conviction upon the unanimous verdict of twelve men, not a majority of ten. It was in those narrow circumstances inappropriate to give the Jury Act a retrospective operation by applying it to a trial already begun.

24. That, of course, was relevant for the particular circumstances of the situation there and the relevant legislation.

25. Thus, in R v McNeill (No 3) [2007] NFSC 4; (2007) 209 FLR 176, an amendment to the Juries Act 1960 (NI), which provided for the discharge of a juror but only so as not to reduce the number of remaining jurors below 10 was held, notwithstanding Newell v The King, to be applicable to a trial which had begun with the arraignment of the accused, even though the amendment was made "long after this offence was committed [sic], and only shortly before the accused was arraigned." Again, this depended to a large extent upon the relevant legislation. It did not suggest that trial by a jury of 12 was not a right but merely that, at the relevant date (there, the commencement of the trial by arraignment) it had not accrued.

26. Of course, in this case, the legislation is not removing a right to trial by jury from the accused; indeed, it is preventing its removal (at the instance of the accused) in certain cases. The question is whether the amending Act should apply to criminal proceedings that have already commenced.

27. In Zollner v Sydney Municipal Council (1917) 17 SR(NSW) 164, a civil case, the legislature amended the Act enabling claims for compensation for land resumed by the Council so as to abolish trial by jury for such claims. The court held that such an amendment was procedural and that, though the action in that case had been commenced some time before the amendment, the action was to be heard by a judge alone. Pring J said (at 167):

I feel no doubt whatever that a section which alters the constitution of the tribunal which is to try the issues is a section merely dealing with procedure. It does not affect the right of the parties in any way.

28. That approach has, however, not always been followed. See Re Government Railways No 1 Award [1918] AR (NSW) 213 where an amendment requiring the Industrial Court to sit with assessors was held not to apply to applications made but not heard.

29. Amongst other matters which have been held to be a right preserved in this way, however, are sentencing principles extant at the date when a person is sentenced so that they must be followed on appeal: Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229.

30. In Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430, the High Court held that an applicant for review of a determination of a claim made under an Act that had been repealed after an application for review had been lodged but before the hearing of it had an accrued right to have his claim determined in his favour, if the original determination was incorrect on the law as it stood at the time the determination was made. The majority referred to alternative characterisations of the effect of the lodging of the application for review; it was not, their Honours held (at 440), "a power to take advantage of an enactment" nor "a mere matter of procedure" but "a substantive right".

31. It is instructive to refer briefly to these three characterisations. As to the first, referred to by Gibbs J in Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 23, the mere possibility of a right being granted to a person under legislation, is not sufficient to amount to an accrued right. See, for example, Director of Public Works v Ho Po Sang [1961] AC 901.

32. As to the second, matters of mere procedure would include rules of Court which may clearly be varied during the pendency of proceedings, with the proceedings thereafter conducted in accordance with the rules as varied: Commonwealth of Australia v Vance [2005] ACTCA 35; (2005) 158 ACTR 47 at 49; [8]. Cases in which matters of procedure have been identified are helpfully listed by D C Pearce and R S Geddes at 338-343; [10.23]-[10.33].

33. As to the third, such rights include a right of appeal which, according to the Privy Council in Colonial Sugar Refinery Co Ltd v Irving [1905] AC 369 at 372, included the deprivation from "a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right". See also Howard v Bondfield (1974) 3 ACTR 62 at 63. This has some similarity to the situation here, where the commencement of the proceedings included a choice of method of trial.

34. Additionally, despite the reference in Rodway v The Queen to admissibility of evidence in the passage quoted above (at [20]), a number of decisions have held that changes in admissibility are either not procedural or that, as they affect rights at trial, should not be given retrospective effect. See Ah Hing v Hough (1926) 28 WALR 95 at 98-9; Richardson v Shipp [1970] Tas SR 105; Keating v Calas [1974] VicRp 47; [1974] VR 381 at 384; MCP Muswellbrook Pty Ltd v Deutsche Bank (Asia) AG (1988) 12 NSWLR 16 at 31-2. These cases concerned, of course, quite fundamental issues, especially as to the onus of proof, but nevertheless referred to rights at trial.

35. These authorities and principles do not uniformly point in one direction. It is hard to discern a clear pattern or approach. In my view, however, they are not inconsistent with the election for trial by judge alone being a right given to an accused person who falls within the circumstances envisaged by s 68B of the Supreme Court Act. Indeed, the importance of the tribunal to hear the proceedings and some similarity with a right of appeal suggests the election may amount to a right which, once accrued, survives the amendment to s 68B.

36. I also refer, briefly, to the Human Rights Act 2004 (ACT) to ascertain whether it contributes to this issue. Section 21(1) of that Act refers to the right to have "criminal charges ... decided by a competent, independent and impartial court", thus making the nature of the decision-maker important.

37. In R v Fearnside (2009) 3 ACTLR 25, Besanko J, with whom the other members of the court expressly agreed, said (at 50; [101]) that in his Honour's opinion, "the right to elect for trial by judge alone is not part of, nor any aspect of, the right to a fair trial on s 21 of the [Human Rights Act]." That, with respect, must be right.

38. His Honour also said earlier in the same paragraph that "a jury trial would not result in an unfair hearing". That was clearly correct in that case and, given the restrictions on jury membership, is likely to be right in most cases of jury trial in Australia.

39. As has, however, been said in Jeremy Gans et al, Criminal Process and Human Rights (Federation Press, 2011) at 403, "[f]air trial obligations also dictate the broad requirements of how courts are constituted". Thus, in R v Abdroikov [2007] 1 WLR 2679, the House of Lords upheld appeals against two of three challenges to jury trials on the grounds that the juries had an appearance of bias given their constitution and the issues in the cases they tried. The trials, though by jury, did not, therefore, provide a human rights compliant fair trial.

40. While this shows that the election for trial by judge alone is not a human right, or part of that right protected by s 21 of the Human Rights Act, it does seem to me that the constitution of the tribunal which hears and determines a criminal charge is a matter of significance and importance. This tends to support the view that the election is nevertheless a right within the meaning of s 84 of the Legislation Act.

41. There are, however, two further matters which seem to me, together with what I have said above, to resolve the issue.

42. The first is that, despite the Court deciding it was not a human right under the Human Rights Act, reference to the election for trial by judge alone was, however, described as a right in R v Fearnside itself. There, a date had been set for the trial of the accused who had failed to elect for trial by judge alone. The trial judge vacated the trial date and permitted the accused to make the election and then re-set the date for trial. The Court of Appeal held the election was not a valid or effective election.

43. While the issue of the nature of the availability of an election was not directly the subject of controversy in the decision, it appears to have been a matter canvassed in argument.

44. In any event, Besanko J, with whom Gray P agreed, said (at 43; [72]) that "[i]n 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."

45. Penfold J delivered a concurring judgment. Her Honour did not direct attention to the precise issue. She did refer, however, (at 31; [16]) to the "opportunity under s 68B" (and to similar effect at 32; [23]), but in the context of the re-opening by subsequent events of the opportunity to elect, which may be seen as the opportunity to exercise the right of election. Presumably, once the election was made, there was in existence a right to trial by judge alone.

46. The decision is binding on me on this point unless I am convinced it is wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at 152; [135]. I am not convinced it is wrong on this point.

47. In addition, I note that s 84 of the Legislation Act defines "right", as used in s 84(3), to include a "capacity". It is not clear to me exactly what "capacity" means in this context. It is used in this way in only two other interpretation statutes in Australia,

s 37(1)(c) of the Interpretation Act 1984 (WA) and s 16(1)(c) of the Acts Interpretation Act 1915 (SA). Despite extensive searches, I could find no authority addressing the meaning of capacity in these statutes or, indeed, in s 84 of the Legislation Act.

48. The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) at 857 defines capacity to mean, in law, "[l]egal competency or qualification". The only two other relevant meanings there given are "[t]he quality or condition of admitting or being open to action or treatment; capability; possibility" and "to be put in, put into or out of a capacity; i.e. a position which enables, or renders capable", though the latter is said to be obsolete.

49. Bryan A Garner (ed), Black's Law Dictionary (Thomson West, 8th ed, 2004) at 220 refers to it as "[t]he role in which one performs an act" or "[t]he power to create or enter into a legal relation[ship]".

50. The Macquarie Dictionary states a number of relevant meanings as follows (at 257):

4. power, ability, or possibility of doing something ... 6. position; function; relation: in the capacity of legal adviser. 7. Law the ability to perform legally binding or legally punishable transactions.

51. It seems to me that once an accused person is in a position to make the election under s 68B of the Supreme Court Act, then, he or she has the capacity to make the election and thereby to require the trial to be one conducted by a judge alone.

52. For these reasons, I was satisfied that the election was a right in the sense in which that term was used in s 84 of the Legislation Act.

53. Section 68B refers to "an accused person in criminal proceedings" in its unamended form and, as amended, to "a criminal proceeding against an accused person".

54. "Criminal proceeding" is defined in the Dictionary to the Supreme Court Act to mean "proceedings in the court for the prosecution of a person on indictment". In W v The Queen [2001] FCA 1648; (2001) 115 FCR 41 at 64; [69], Whitlam J, with whom Madgwick J agreed, referred to the words in the unamended version and said that, on being committed for trial, the person so committed was "an accused person" but until an indictment was filed was not "an accused person in criminal proceedings". As his Honour put it (at 64; [68]), "[s]ections 68A and 68B come into play once an indictment is filed". This approach was followed by all members of the Court of Appeal in R v Fearnside.

55. Thus, the capacity or the right to make an election is only accrued when an indictment has been filed, but it is then accrued, that is, in the terms of s 84, existing. While nothing stops a person filing the relevant document after committal but prior to an indictment being filed, the right does not accrue upon committal but when the indictment is filed.

56. In this case, the indictment was filed prior to the commencement of the amending Act. Accordingly, it seems to me that the right to make an election thereupon accrued and was preserved by s 84 of the Legislation Act. Thus, at the date of his election, Mr Girvan's right to elect has been preserved and was capable of being exercised.

57. Neither prosecution nor defence counsel submitted otherwise; indeed, both accepted that Mr Girvan had validly elected for trial by judge alone.

58. Accordingly, I accepted the election as valid and proceeded with the trial as a judge alone trial.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Wilson Phillips Lawyers