A 75-year-old Canberra man accused of historical child sexual abuse is facing a judge-alone trial after a legal mandate for him to be judged by a jury of his peers was set aside in an extremely rare move.
In the ACT, all those accused of sexual assault offences must have their cases heard in front of a jury.
But lawyers for the 75-year-old convinced the ACT Supreme Court that the legal mandate did not apply to the allegations against the man because those allegations dated back to the 1970s – prior to the requirement coming into effect.
The man, who cannot be named for legal reasons, is accused of two counts of acts of indecency against two young female relations – his sister and his niece.
The trial is being heard by Justice Chrissa Loukas-Karlsson.
In a police interview played to the court, the man's sister said he had come into her room and assaulted her when she was staying with him during school holidays when she was a teenager.
The court heard the woman died by suicide earlier this year.
She described to police how her brother allegedly committed one act of indecency against her when she was eight or nine.
She said she was sitting on his knee in a room full of people when he touched her inappropriately.
She said her brother had been a "trendy" man who wore flares and modern shirts, and thought he was "a ladies' man".
"He was very chauvinistic," she told police.
"He would never have made a bed or washed up."
Under questioning by police, she was emphatic that it was her brother who had assaulted her in the dark when she stayed with him.
"I knew it was him," the woman told police.
Her husband told the court today he had spoken to his wife's brother about the abuse on the phone in 2018.
"You know what you've done," he said he had told his brother-in-law.
He said the man had replied: "I can't recall doing anything, and if I did I am sorry."
In her police interview, the man's niece gave details about how he had abused her when she was in bed at night, during times she stayed with his family.
She said the man would come into the room where his own child was also sleeping, on the ruse of saying good night.
Not clear if rule about jury trials was intended to be retrospective, court hears
The ACT changed its law about jury trials in 2011 after a series of judge-alone trials involving homicide and other serious crimes raised concern about public confidence in the courts.
The only time the rule has been relaxed was during the pandemic, when judge-alone trials were the only option, but that was reversed some time ago.
Prosecutor Anthony Williamson argued against the judge-alone trial in his submissions to the court.
"Prior to 1993, all indictable matters in the territory were tried before a jury," he said.
"There was no scope for judge-alone trials prior to 1993.
"Had the index matters been prosecuted proximate to the time of their alleged commission, that trial would have been before a jury."
But the question before the court was whether the alleged offences could be regarded as excluded from the 2011 changes.
Counsel for the accused man, barrister Jon White, said it was not clear in the 2011 law that it was to have retrospective as well as prospective effect.
He said there was nothing to say the Legislative Assembly had intended anything extra.
"There is simply no basis to infer that the legislature 'overlooked' anything," he said.
"The provision is clear on its face."
The court found the law about mandatory jury trials only applied to sexual crimes dating back to 1985, and has allowed the case to be heard by a single judge.
