Page 2506 - Week 06 - Thursday, 23 June 2011
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In my opinion, the right to elect for trial by a judge alone is not part of, or an aspect of, the right to a fair trial in section 21 of the HRA.
But Chief Justice Higgins noted:
To so limit the existing right to choose trial by judge-alone clearly creates a real risk of offending the Human Rights Act … (ACT). In particular section 21 of that Act which provides the right to a fair trial.
The human rights commissioner, Dr Watchirs, stated this week:
On balance, I recommend that a less restrictive approach be taken to allow judge-alone trials to proceed, rather than the blanket approach in the bill.
Dr Watchirs goes on to give her advice that an approach somewhat like the Western Australian model would be preferable. So to fix these failures, I will be proposing an amendment that mirrors the Western Australian model, such that application can be made to the court for a judge-alone trial. This will include the relevant guidelines for the court to consider and a requirement that an election application must be made before the court allocates a trial date and before the identity of the trial judge is known. The amendment would also prevent the court from revoking an order for a judge-alone trial after the identity of the trial judge is known. This amendment will fix the sledgehammer approach of the government, leaving the door open for judge-alone trials, but in much more restricted circumstances.
I do acknowledge that the model I am proposing will add to the range of matters that are heard in the Supreme Court, but I contend that the guidelines my amendment proposes will in practice serve to restrict the number of applications and the time needed to be taken to consider them.
The model also raises the question of whether appeals against court decisions in relation to judge-alone trials might arise, and I contend that the appeals will be rare because the applications themselves will be rare. The operation of this model as it occurs in Western Australia will serve to restrict the number of cases that proceed to judge-alone trials. It will thus relieve Mr Corbell’s apparent embarrassment that the ACT has too many judge-alone trials compared to other jurisdictions.
Another failure of this bill is Mr Corbell’s amendment that requires a judge-alone election to be made before the identity of the trial judge is known. The Australian Federal Police Association has pointed out to me and to Mr Corbell that this amendment serves merely to establish that applications for judge-alone trials will continue to become routine. It fails because it provides that the accused can change their mind before arraignment and revert to a jury trial. Instances can arise in which the identity of the trial judge becomes known before arraignment.
The advice that I have received from practising criminal lawyers on this matter goes like this. If there are pre-trial applications, for instance, about the admissibility of evidence, these will be listed before the judge who will ultimately hear the trial. Such applications are frequently listed prior to arraignment. Another situation would be if
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