On 8 August, the High Court unanimously dismissed an appeal against the conviction of Simon Vunilagi who, along with several other men, perpetrated a series of multiple-perpetrator sexual assaults in a Downer flat in November 2019. The ruling is significant because the original trial was held before a judge sitting alone, without a jury, under emergency provisions for judge-alone trials made by the ACT Legislative Assembly at the start of the COVID-19 pandemic. Similar laws were enacted across Australia as social distancing rules and the easy transmission of the virus made many criminal trials uncertain.

The emergency provisions allowed the Supreme Court to order that a criminal trial be heard without a jury if it was in the interests of justice to do so, regardless of whether the defendant consented to being tried this way. Normally, as is the case now, trials for sexual assault must be heard by a jury with no option for trial by judge-alone, even if the defendant consents. The criminal proceedings for the group started in June 2020 with counsel for both sides asked to make submissions on whether an order for a judge-alone trial should be made.

In August 2020, the Supreme Court made an order under the emergency provisions on the basis that the social distancing guidelines in effect meant that it would not be possible to safely accommodate the judge, court staff, the four accused, their lawyers, and the jury in the courtroom. The Court also reasoned that there would likely be long delays before a jury trial could take place which would have led to a long wait on remand and a breach of their right to a speedy trial.

Three members of the group, including Mr Vunilagi, were found guilty in October 2020. Mr Vunilagi was sentenced to six years imprisonment.

Mr Vunilagi appealed to the ACT Court of Appeal arguing that his trial was invalid because the emergency provisions breached the Australian Constitution. According to Mr Vunilagi’s lawyers, it either breached a constitutional principle of judicial independence and integrity or a right to trial for serious federal crimes found at section 80. The Court of Appeal dismissed the appeal, in part because there was a binding High Court case from 1915, the Bernasconi case, which had held that section 80 did not apply to an external territory. That case had long meant that juries were not required in Australia’s other territories, including the ACT.

Mr Vunilagi applied to appeal to the High Court on similar grounds. In a win for the ACT’s autonomous form of government, though perhaps not the right to trial by jury, the Court held that criminal offences against laws made by the Legislative Assembly are not “offences under any law of the Commonwealth” for the purposes of section 80 of the Constitution. That section requires a trial by jury for most serious crimes made illegal under federal law, but not crimes under State laws or (as now ruled) those of Territories like the ACT.

The Court also held that the emergency provisions did not breach the constitutional principle for judicial integrity. They reasoned that the procedure for making a judge-alone order, including taking submissions from both the prosecution and the defence, was akin to normal case management orders routinely made by courts. 

The ruling means that criminal convictions handed down by courts in the Territories, including the ACT, without juries are now safe. It also means that Mr Vunilagi will be held behind bars for the foreseeable future.