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Legislative Assembly for the ACT: 2002 Week 1 Hansard (12 December) . . Page.. 116..


MR STEFANIAK (continuing):

Another salient feature is the provision of a $100,000 fine as an option for a court. The courts are usually quite unlikely to impose a maximum fine, but with a fine such as that a person could be easily deterred and in some instances suitably punished by the court imposing a $10,000 or $20,000 fine, for example. That would probably have a much greater effect on such a person than a suspended sentence or some other non-custodial option. A custodial option is there, as it is in the government bill. In that respect both bills are the same-10 years. Both bills also are the same in relation to the provision for persons acting outside the Australian Capital Territory.

In conclusion, Mr Speaker, I commend the bill to the Assembly. I think it is sensible, because of the need to act promptly, that we deal with this matter tomorrow, if at all possible. Should that not be the wish of the Assembly, my bill would simply need a renumbering of the clauses. I commend the bill to the Assembly. I think it would be highly desirable for the Assembly to deal with this bill tomorrow because of the very grave dangers to and angst within the community in relation to these matters.

Debate (on motion by Mr Stanhope) adjourned to the next sitting.

Supreme Court Amendment Bill 2001 (No 2)

Mr Stefaniak, pursuant to notice, presented the bill and its explanatory memorandum.

Title read by Clerk.

MR STEFANIAK (11.09): I move:

That this bill be agreed to in principle.

Mr Speaker, the criminal justice system balances the rights and freedoms of an accused person against the broader interests of society in ensuring that justice is done and is seen to be done. This bill is not about tipping the scales against anyone. It is about achieving a balance which our community can fairly say is just. It recognises as well developments in the states. I will have more to say on that in a minute.

The basic part of the bill, proposed new section 37R, contains a right to review acquittals which arise from an error of law by a trial judge. Appeals against acquittals are already permitted in Tasmania and in Western Australia. For many years, the ACT has permitted "appeals", in the form of applications for an order to review, from decisions by a magistrate to dismiss a charge or to discharge a defendant. The Canadian Supreme Court has determined that such appeals do not breach the long-standing prohibition on double jeopardy, that is, appeals from any court.

The new power for orders of review for Supreme Court acquittals furthers the interest of justice by allowing a defendant who is acquitted only because the court made a mistake to be retried in accordance with the law. The Court of Appeal, once it is established, will be able to set aside an acquittal and order a new trial where the trial judge wrongly directed the jury to acquit or where the trial judge, be it a judge sitting alone or a judge sitting with a jury, made an error of law in the course of the trial. The power to review an acquittal will not extend to disturbing a jury's finding properly made.


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