A Canberra gang rape "ringleader" has convinced the High Court to hear him challenge the constitutional validity of the ACT's COVID-19 emergency laws, which deprived him of the right to a jury trial.
Three judges granted Saimoni Vunilagi, aged in his 30s, special leave to appeal on Friday, in a decision that could have ramifications for "a handful" of other ACT cases.
Vunilagi is currently behind bars at the Alexander Maconochie Centre, serving a jail sentence of more than six years, over a 2019 gang rape at a unit in Downer.
The Fijian was described as "the ringleader" of a group that took a woman to the home and violated her after meeting her at Mooseheads nightclub in Civic.
While he denied any wrongdoing, former chief justice Helen Murrell found him guilty of eight sexual offences when he stood trial in the ACT Supreme Court.
People accused of sexual assault must ordinarily be tried by a jury in the territory, but Vunilagi's trial was scheduled at a time the coronavirus pandemic was causing havoc in terms of social distancing in courts.
With jury trials suspended in the ACT, initially across the board and later in a significant number of matters, the Legislative Assembly gave the Supreme Court the power to order judge-alone trials without the consent of accused people.
That is what happened in the case of Vunilagi, who subsequently argued in the ACT Court of Appeal that the laws creating this power were incompatible with the constitution.
The Court of Appeal ruled against him, prompting an application for special leave to appeal to the High Court.
"I am deeply troubled that the Legislative Assembly has been able to legislate away a person's right to be tried by a jury," his solicitor, Tom Taylor, told The Canberra Times after the application was lodged.
When the application was heard on Friday, barrister Bret Walker SC, for Vunilagi, told the High Court "a handful" of other accused people had also been ordered to face a judge-alone trial while the ACT's emergency laws were in force.
Mr Walker argued depriving an accused of the right to a trial by jury "departs from the necessary equality before the law".
He said the risk of jurors contracting COVID-19 was "absolutely equal" in every case, but the emergency laws had created inequality by allowing judges to deprive some people of a jury trial when others were still entitled to one.
The top silk ultimately urged the High Court to grant special leave, saying the issue was an important one that affected his client "vitally".
ACT solicitor-general Peter Garrisson SC argued to the contrary, saying the Court of Appeal's decision was not "attended by sufficient doubt" to warrant leave.
Mr Garrisson said the emergency laws had given judges a "case management" power to keep courts running during the pandemic.
In Vunilagi's case, he said, Chief Justice Murrell had carefully considered the issue of whether to order a judge-alone trial, allowing those involved to make submissions and giving "detailed reasons" for her decision.
In terms of the emergency laws' alleged incompatibility with the constitution, Mr Garrisson said a previous High Court decision made it clear territory parliaments were "standalone legislatures" capable of exercising their own powers to legislate.
Prosecutor Katie McCann, on behalf of the ACT Director of Public Prosecutions, joined Mr Garrisson in urging the High Court to refuse special leave to appeal.
Justice Patrick Keane, who heard the application alongside Justice James Edelman and Justice Jacqueline Gleeson, said special leave would be granted.
He told the parties to the case to liaise with a registrar about having Vunilagi's matter listed for an appeal hearing, which Mr Walker indicated would take a full day.
Vunilagi has sought orders, in the event his appeal succeeds, that his convictions be quashed.
