Canberra · Trials and serious crime
Criminal trials in the ACT Supreme Court.
Serious indictable charges in the ACT are tried in the ACT Supreme Court. A trial is won or lost on the brief, the elements the Crown must prove, and the decisions taken long before the jury is empanelled. This is a practice built to run those matters.
- Trial courtACT Supreme CourtNo District Court in the ACT
- Jury12 jurorsJuries Act 1967 (ACT), s 7
- Judge-alones 68B electionSupreme Court Act 1933 (ACT)
- AppealsCourt of AppealConviction and sentence
What a trial practice actually is.
A trial practice starts from the brief of evidence and the elements. The prosecution has to prove every element of the charge beyond reasonable doubt. The defence work is to test whether it can, and to decide, early and deliberately, whether a matter is defended and how. Every serious matter is prepared as if it will be tried, because that is the only way to know whether it should be.
That is different from a volume plea practice. It changes how bail is run, how the brief is read, what is admitted and what is put in issue, and whether the matter is tried by a jury or a judge alone. Aaron Kernaghan runs ACT matters that way, and briefs senior counsel where a matter calls for it.
How a serious matter reaches the Supreme Court.
A serious indictable charge starts in the ACT Magistrates Court. Before it can be tried in the Supreme Court it passes through a committal. Under the Magistrates Court Act 1930 (ACT), the magistrate commits a person for trial unless satisfied there is no reasonable prospect that a jury, properly instructed, would convict. If that threshold is not met, the person is discharged.
Committal is not a formality. It is the first point at which the Crown case is exposed, and it is where a weak case can be attacked or narrowed. How the committal is run shapes the trial that follows.
Jury trials in the ACT.
A Supreme Court trial is ordinarily heard by a jury. Under the Juries Act 1967 (ACT), a criminal jury is 12 people drawn from the electoral roll. If a juror is discharged during the trial, it can continue with as few as 10. The jury is the judge of the facts; the trial judge rules on the law and directs the jury.
A jury verdict must ordinarily be unanimous. For a territory offence, a majority verdict of 11 of 12 can be taken, but only after the jury has deliberated for a reasonable period of at least six hours and the judge is satisfied a unanimous verdict is not likely. A majority verdict is not available for a Commonwealth offence, where the Constitution requires unanimity.
Judge-alone trials: the ACT election.
The ACT is one of the few places where an accused can choose a trial by judge alone for many offences. Under s 68B of the Supreme Court Act 1933 (ACT), the accused elects in writing, supported by a certificate from a legal practitioner confirming the accused was advised about the election and made it freely, filed before the identity of the trial judge is known.
The election cannot be made for an excluded offence in Schedule 2, which includes murder, manslaughter, sexual offences and culpable driving causing death. Where there are co-accused, they must all elect, and none can be charged with an excluded offence. An accused can revert to a jury before arraignment, but only once; an election that is made and withdrawn cannot be made again.
Whether to elect is a real strategic decision. A judge gives reasons and can be persuaded on a technical or legal defence that a jury might decide on impression. It is a decision to take on advice, matter by matter.
Serious offences tried in the ACT Supreme Court.
The most serious ACT offences are strictly indictable and are tried in the Supreme Court. Murder under s 12 of the Crimes Act 1900 (ACT) carries life imprisonment, and the ACT definition includes an intent to cause serious harm, which is broader than a pure intent to kill. Manslaughter under s 15 carries 20 years. Serious sexual offences sit in ss 51 to 54. Trafficking in a controlled drug under s 603 of the Criminal Code 2002 (ACT) carries up to life for a large commercial quantity.
Appeals.
A conviction or sentence in the Supreme Court can be appealed to the ACT Court of Appeal. An appeal is not a rehearing. It requires error, and the grounds and the record have to be prepared with care. A trial run well is also the best foundation for an appeal if one is needed.
Frequently asked.
Where are serious criminal trials heard in the ACT?
In the ACT Supreme Court. The ACT has no District Court, so all serious indictable trials are heard in the Supreme Court, with appeals to the Court of Appeal.
How many people are on an ACT jury?
Twelve, drawn from the electoral roll under the Juries Act 1967 (ACT). A trial can continue with as few as 10 if jurors are discharged.
Can I be tried by a judge without a jury in the ACT?
For many offences, yes. Section 68B of the Supreme Court Act 1933 (ACT) allows an accused to elect a judge-alone trial, in writing and with a legal practitioner's certificate. Excluded offences in Schedule 2, including murder, manslaughter and sexual offences, cannot be tried this way.
Does an ACT jury have to be unanimous?
Ordinarily yes. For a territory offence a majority verdict of 11 of 12 can be taken after at least six hours of deliberation if the judge is satisfied unanimity is unlikely. Commonwealth offences require a unanimous verdict.
Do you brief senior counsel for trials?
Where a matter calls for it, yes. The decision is made on the matter, so the client has the right advocate for the trial.
Facing a trial in the ACT Supreme Court?
A confidential first conference. The brief is read. The realistic options are set out. Speak to Aaron Kernaghan directly before you decide anything.
Request a confidential consult 0421 717 019