Where Section 68BA(4) of the Supreme Court Act 1933 (ACT) required judge to provide written notice of proposed order under Section 68BA(3), did Section 68BA(4) offend the Kable principle?

Vunilagi v The Queen [2023] HCA 24 (8 August 2023)

Facts:

The appellant, with three co-accused, was charged with offences against ss 54 and 60 of the Crimes Act 1900 (ACT) ("the Crimes Act (ACT)"). His trial in the Supreme Court of the Australian Capital Territory was listed to commence on 7 September 2020. On 13 August 2020, Murrell CJ made an order under s 68BA(3) of the Supreme Court Act 1933 (ACT) that the proceeding be tried by judge alone.

The background to the enactment of s 68BA and the order made by Murrell CJ was the onset of the COVID‑19 pandemic and the requirements of public health emergency declarations, which had an impact on jury trials. In late March 2020, the Supreme Court directed that jury trials would proceed in limited numbers and subject to social distancing requirements[2], but subsequently directed that jury trials would not proceed until further notice[3].

Relevant legislation

Relevant to this appeal, the Emergency Response Act added s 68BA, which was in part in these terms:

"(1) This section applies to a criminal proceeding against an accused person for an offence against a territory law if the trial is to be conducted, in whole or in part, during the COVID-19 emergency period.

(2) To remove any doubt, this section applies—

(a) to a criminal proceeding—

(i) that begins before, on or after the commencement day; and

(ii) for an excluded offence within the meaning of section 68B(4); and

(b) whether or not an election has been made by the accused person under section 68B, including before the commencement day.

(3) The court may order that the proceeding will be tried by judge alone if satisfied the order—

(a) will ensure the orderly and expeditious discharge of the business of the court; and

(b) is otherwise in the interests of justice.

(4) Before making an order under subsection (3), the court must—

(a) give the parties to the proceeding written notice of the proposed order; and

(b) in the notice, invite the parties to make submissions about the proposed order within 7 days after receiving the notice."

On 18 June 2020, notice was given to the appellant and his co-accused (under s 68BA(4)), who were then invited to make submissions because Murrell CJ proposed to make an order under s 68BA(3). The appellant made submissions and opposed the order. By the time of the hearing, his co-accused supported the making of the order. Her Honour found that it was in the interests of justice that the trial proceed before a judge alone and, as noted at the outset of these reasons, made an order accordingly. In relation to the matter stated in s 68BA(3)(a), her Honour found that the trial could not proceed as a jury trial in accordance with social distancing requirements given, in particular, the number of legal representatives. The length of the trial rendered greater the likelihood of delays being caused as a result of COVID‑19 testing requirements and constraints. Her Honour considered that it was in the interests of the complainant, the witnesses and the accused that the matter be resolved expeditiously, noting that three accused were detained in custody.

Following his conviction, the appellant appealed to the Court of Appeal. He argued that his trial miscarried on the basis that s 68BA was invalid. The Court of Appeal dismissed the appeal.

Issues:-

a) Did s 68BA, in its continuing operation, contravene the limitation derived from this Court's decision in Kable v Director of Public Prosecutions (NSW); and

b) Is the section inconsistent with the requirement in s 80 of the Constitution that the appellant's mode of trial be by jury.

Consideration:-

The Kable principle

It is not in issue that laws enacted by the Legislative Assembly for the Australian Capital Territory which affect the functions and processes of the courts are subject to the Kable principle. The principle for which Kable stands, being the same for the courts of a Territory as it is with respect to courts of the States, is that:-

"because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid".

The appellant's case is that the function given to the Supreme Court by s 68BA(4) impaired its institutional integrity by departing to a significant degree from the processes which characterise the exercise of judicial power. As noted above, the appellant focuses only upon what was involved in the process prescribed by sub-s (4). The appellant does not challenge the process undertaken under s 68BA(3).

The constitutional flaw which the appellant identifies in s 68BA, as relevant to the Kable principle, was in the "gatekeeping function" given to a judge under s 68BA(4) to determine the persons, from a relevantly identical class, to be subject to the exercise of the judicial function under sub-s (3). By contrast to the function under sub-s (3), the application of the gatekeeping function in sub-s (4) was inscrutable, the appellant submits. It exposed some, but not all, persons to the risk of losing a jury trial. This latter submission appears to be based upon an incorrect premise that s 80 confers something in the nature of a personal right to a trial by jury but this may be put to one side.

Section 68BA was general in its application. By s 68BA(1) and (2) it applied to all criminal proceedings where the trial was to be conducted during the COVID‑19 emergency period. Section 68BA(3) was central to the section and its purpose. It provided the power for the Supreme Court to determine if a criminal proceeding was to be tried by a judge alone. It was expressly subject to satisfaction of the two conditions that such an order: (a) would ensure the orderly and expeditious discharge of the business of the Court; and (b) was otherwise in the interests of justice. Section 68BA(4) added a further condition to the exercise of that power. It required that before an order for a judge alone trial was made: (a) a notice be given to the parties of the proposed order; and (b) the parties be invited to make submissions about the proposed order.

Properly construed, sub-ss (3) and (4) operated together. Far from operating as a "gatekeeping" function, sub-s (4) is to be understood as facilitative of and ancillary to the power which was to be exercised under sub-s (3). The function of the sub-sections was more in the nature of case management. The appellant does not deny this. By these means the Court was able to manage its criminal caseload during a public health emergency whilst at the same time ensuring that the interests of justice were served.

The function involved in 68BA(4) was not one to consider which criminal proceedings might be a candidate for an order under sub-s (3). It did not involve any assessment or evaluation of that kind. Its sole criterion was the circumstance that an order under sub-s (3) was proposed. As soon as such a proposal was made the Court came under a duty to provide the notice and the invitation referred to in sub-s (4).

The evident purpose of s 68BA(4), as the Explanatory Statement confirms, was to provide procedural fairness to any person who might be affected if the order proposed to be made under sub-s (3) was made. It ensured that no accused person would have their mode of trial altered without first being given notice of that proposal and the opportunity to be heard with respect to it. The appellant accepts that procedural fairness is required if a court's procedure can be said to conform to the Kable principle.

Ground 2: Section 80 of the Constitution

Section 80 of the Constitution, which appears in Ch III, provides in relevant part that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury ...". The offences in question here were against ss 54 and 60 of the Crimes Act (ACT). The first question which arises with respect to s 80 of the Constitution, the appellant accepts, is whether they are laws of the Commonwealth. The appellant also raises a second and alternative question. It is whether the reference in s 80 to "any law of the Commonwealth" includes a law made by the legislature of a territory. The answer to both questions is "no".

Conclusion:-

Appeal is dismissed.