Vunilagi v The Queen [2023] HCA 24

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

SIMON VUNILAGI APPELLANT

AND

THE QUEEN & ANOR RESPONDENTS

Vunilagi v The Queen

[2023] HCA 24

Date of Hearing: 8 & 9 February 2023

Date of Judgment: 8 August 2023

C13/2022

ORDER

Appeal dismissed.

On appeal from the Supreme Court of the Australian Capital Territory

Representation

B W Walker SC with J S Stellios for the appellant (instructed by Hugo Law Group)

K L McCann with K V Lee for the first respondent (instructed by Office of the Director of Public Prosecutions (ACT))

P J F Garrisson SC, Solicitor-General for the Australian Capital Territory, and H Younan SC with A M Hammond for the second respondent (instructed by Government Solicitor for the Australian Capital Territory)

S P Donaghue KC, Solicitor General of the Commonwealth, with B K Lim and C Ernst for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

N Christrup SC, Solicitor-General for the Northern Territory, with L S Peattie for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Vunilagi v The Queen

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in Territory courts – Institutional integrity of Territory courts – Where s 68BA inserted into Supreme Court Act 1933 (ACT) in response to COVID-19 pandemic – Where s 68BA(3) allowed Supreme Court of Australian Capital Territory ("ACT") to make order for trial by judge alone for previously excluded indictable offences if satisfied order would ensure orderly and expeditious discharge of Court business and in interests of justice – Where s 68BA(4) required judge to provide written notice of proposed order under s 68BA(3) – Where no requirement for election or consent by accused – Where Justice of Supreme Court proposed to and did order trial by judge alone despite appellant's submissions opposing order – Where appellant tried and convicted under ss 54 and 60 of Crimes Act 1900 (ACT) – Whether s 68BA(4) substantially impaired institutional integrity of Territory courts as function conferred incompatible with position of Territory court as repository of federal jurisdiction.