Vunilagi v The Queen [2023] HCA 24

Vunilagi v The Queen [2023] HCA 24

Section 68BA of the Supreme Court Act 1933 (ACT), as applied, did not impair the institutional integrity of the ACT Supreme Court and was not contrary to the Kable principle, as the power in s 68BA(4) was ancillary to the core judicial function, facilitating procedural fairness and case management during the COVID-19 pandemic. Offences under ss 54 and 60 of the Crimes Act 1900 (ACT) were, by the time of trial, part of Territory law (enacted or adopted by the ACT Legislative Assembly) rather than Commonwealth law. Therefore, s 80 of the Constitution, which requires trial by jury for offences against a law of the Commonwealth, did not apply. The appeal was accordingly dismissed.

Parties
Appellant: Simon Vunilagi; First Respondent: The Queen; Second Respondent: Attorney-General for the Australian Capital Territory; Intervener: Attorney-General of the Commonwealth (intervening); Intervener: Attorney-General for the Northern Territory (intervening)
Jurisdiction
Australia
Judgment Date
08 August 2023
Procedural Posture
Appeal (criminal, Constitutional) / High Court Appeal From Supreme Court of the Australian Capital Territory, on Appeal From the Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Section 80 of the Constitution—trial by Jury, Kable Principle—institutional Integrity of Territory Courts, Jurisdiction of Territory Courts—trial by Judge Alone, Source of Legislative Power—territory Laws Versus Commonwealth Laws, COVID 19 and Emergency Legal Responses—judge Alone Trials
Constitutional Law (commonwealth) Criminal Law Judicial Power Section 80 of the Constitution—trial by Jury Kable Principle—institutional Integrity of Territory Courts Jurisdiction of Territory Courts—trial by Judge Alone Source of Legislative Power—territory Laws Versus Commonwealth Laws COVID 19 and Emergency Legal Responses—judge Alone Trials

Case Brief

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Parties

Simon Vunilagi

Appellant

The Queen

First Respondent

Attorney-General for the Australian Capital Territory

Second Respondent

Attorney-General of the Commonwealth (intervening)

Intervener

Attorney-General for the Northern Territory (intervening)

Intervener

Procedural Posture

Appeal (criminal, Constitutional) / High Court Appeal From Supreme Court of the Australian Capital Territory, on Appeal From the Court of Appeal

Legal Issues

  1. 1 Whether s 68BA of the Supreme Court Act 1933 (ACT) impairs the institutional integrity of the Supreme Court of the ACT (Kable principle)
  2. 2 Whether the offences under ss 54 and 60 of the Crimes Act 1900 (ACT) are offences against a law of the Commonwealth for the purposes of s 80 of the Constitution
  3. 3 Whether s 80 of the Constitution requires trial by jury for offences against ACT law, and whether R v Bernasconi should be revisited or overruled

Ratio Decidendi

Section 68BA of the Supreme Court Act 1933 (ACT), as applied, did not impair the institutional integrity of the ACT Supreme Court and was not contrary to the Kable principle, as the power in s 68BA(4) was ancillary to the core judicial function, facilitating procedural fairness and case management during the COVID-19 pandemic. Offences under ss 54 and 60 of the Crimes Act 1900 (ACT) were, by the time of trial, part of Territory law (enacted or adopted by the ACT Legislative Assembly) rather than Commonwealth law. Therefore, s 80 of the Constitution, which requires trial by jury for offences against a law of the Commonwealth, did not apply. The appeal was accordingly dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed.