A convicted gang rape ringleader would be entitled to ask "why me?" as he sits in a Canberra jail cell, having been deprived of the right to a jury trial by COVID-19 emergency laws, his barrister says.
But counsel for the ACT Attorney-General has urged the High Court to dismiss Saimoni Vunilagi's appeal, which argues his judge-alone trial was constitutionally invalid, warning its success would have "serious and wide-reaching consequences" for the administration of justice in the territory.
Vunilagi, who also uses the first name Simon, is serving a jail sentence of more than six years after former ACT chief justice Helen Murrell found him guilty of eight charges laid over a 2019 gang rape.
The offender, aged in his 30s, was described as the "ringleader" of a group that met a young woman at Civic nightclub Mooseheads, then took her to a unit in Downer and sexually violated her.
He will be eligible for parole in June but is almost certain to be deported to Fiji upon his release from prison unless he succeeds in his last-ditch appeal to the country's top court.
Vunilagi wanted to be tried by his peers but the ACT Supreme Court placed his fate in the hands of a judge in 2020, when the Legislative Assembly had passed emergency laws suspending jury trials.
He later tried unsuccessfully to convince the ACT Court of Appeal his trial had been incompatible with the constitution, which requires juries for offences against Commonwealth law.
The High Court subsequently gave him another chance to make that argument, granting him special leave to appeal.
Vunilagi's barrister, Bret Walker SC, told a full bench of the High Court on Wednesday the emergency laws had created an inequality that left his client in "peril".
Mr Walker said the laws did not disclose the criteria the Supreme Court had to consider when selecting cases to be tried without a jury during the pandemic's emergency period, nor did a judge who made such an order have to give reasons.
"'Why me?' is an appropriate question," he said.
"There is absolutely nothing to explain how you avoid a case that is materially identical being determined oppositely."
Mr Walker went on to argue the offences Vunilagi was found to have committed were criminalised by laws of the Commonwealth, having been "picked up" from NSW and "foisted upon" the ACT by the federal parliament prior to self-government in the territory.
Because the laws in question derived their force from the Commonwealth, he argued, Vunilagi should have been precluded from having a judge-alone trial.
But ACT Solicitor-General Peter Garrisson SC, appearing for Attorney-General Shane Rattenbury, argued the offences were in fact territory laws not covered by the relevant section of the constitution.
Mr Garrisson told the High Court the territory's Crimes Act, which criminalises the offences Vunilagi committed, ceased to be Commonwealth legislation in 1990 and became ACT law.
It had also been amended since then, he said, including to change the definition of sexual intercourse in 2013.
Mr Garrisson also expanded on claims made in his written submissions last year, when he said success for Vunilagi could have "extensive consequences for the administration of justice in the ACT".
He warned the appeal being upheld would overturn "decades of practice", rendering the 30-year regime of optional judge-alone trials in the territory unconstitutional.
The validity of appointments of acting judges and special magistrates would also be called into question, he said, along with the schemes for inquiries into convictions and the exercise of judicial power by non-court bodies like the ACT Civil and Administrative Tribunal.
Commonwealth Solicitor-General Stephen Donaghue KC, who also urged the High Court to dismiss Vunilagi's appeal, described the potential impacts of its success as "startling".
The appeal hearing is set to continue on Thursday with more submissions from Dr Donaghue, followed by Northern Territory Solicitor-General Nikolai Christrup SC.
