High Court terrorism ruling points to need for Constitutional reform

15th Jun 2016

Australian Lawyers Alliance Spokesman Greg Barns said the High Court decision regarding Hamdi Alqudsi, who is charged with offences relating to involvement in the conflict in Syria and who sought a judge only trial in the New South Wales Supreme Court, showed the need for Constitutional reform to allow defendants to opt for a trial by a judge alone. “In terrorism cases the risks of pre-trial publicity impacting on the jury’s ability to be impartial is significant. In such cases a judge-only trial might be essential to ensure justice prevails.” Mr Barns said.

“In New South Wales, Queensland, Western Australia, South Australia and the ACT a defendant can make an application for a judge alone trial.  We have seen this in recent years in high profile murder cases such as that involving lawyer Lloyd Rayney in Western Australia, who was acquitted of a charge of murdering his wife after a judge alone trial in 2013. Simon Gittany made the same choice in New South Wales, where he was ultimately convicted of throwing his partner off a balcony in Sydney.  A person should not be afforded lesser rights simply because they were charged under Commonwealth laws rather than state laws.

“Where allegations of terrorist activities lead to charges under Commonwealth laws, this is particularly relevant.  The media, politicians and police have shown on many occasions that they do not respect the right to a fair trial by making statements that appear to assume the guilt of those charged and creating an atmosphere of fear around the defendants,” Mr Barns said.

Today, however, the Court ruled that judge-only trials are not available when someone has been charged with an offence under Commonwealth legislation, due to section 80 of the Constitution.

“In the 21st century, with saturation media coverage being the order of the day in terrorism matters, surely a person should have the option, as should the prosecution, of asking a court for a trial by a judge alone?  The High Court decision today shows that the Constitution may need amending to give parties that right,” Mr Barns concluded.

Section 80 of the Constitution provides "The trial on indictment of any offence against any law of the Commonwealth shall be by jury”. The Court, in its majority decision (Chief Justice Robert French dissented) upheld the view that section 80 cannot be interpreted to allow judge-only trials in any circumstances: “a trial on indictment for an offence against a law of the Commonwealth does … have to be before a jury.”

For further details, contact Australian Lawyers Alliance Legal and Policy Adviser, Anna Talbot, on (02) 9258 7700 or at

Tags: Human rights Access to justice Criminal justice terrorism Greg Barns