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Legislative Assembly for the ACT: 2005 Week 02 Hansard (Thursday, 17 February 2005 2005) . . Page.. 609 ..

There is a procedural amendment to the Drugs of Dependence Act to make it more user friendly. Effectively, there will be one list, rather than two. That is a very good thing, too. There are some amendments to the Legislation Act, basically to ensure a more efficient operation of the act, and an amendment in relation to fine and penalty to bring it into line with what it should have been to start with.

The DPP also now will be able to have reference appeals from the Magistrates Court. A reference appeal is basically on a point of law. It does not affect the verdict, but if a court gets a point of law completely wrong and establishes a bad precedent, at present the prosecution can appeal to the Court of Appeal in the Supreme Court and ask for a reference appeal on a point of law. There was one case not long ago where a defendant got off by trial direction because the police warrant was incorrect. Actually, the defendant tried to kill the police officer by shooting him when he entered his home, but because of that technicality, the charge of attempted murder was taken away by the judge. The court of appeal, the Federal Court, then said, “No, the judge got it wrong.” It did not affect the acquittal, which I think is a pity. However, the point was made and basically the precedent was established, so something as silly as that will not happen again. It is not going to be used very often. At the moment an appeal can be taken from the Supreme Court, but not the Magistrates Court, so that might be of some assistance

A decision on a reference appeal does not invalidate or affect any verdict or decision given at the trial. During the last Assembly, I introduced a bill, which I think lapsed, which we may bring back. That was a bill to enable the Crown, where a judge makes an absolute stuff-up and misdirects the jury or takes the trial away from the jury or, on some spurious point, actually directs the acquittal of an accused, to go to the Court of Appeal and seek a retrial. Now, that has nothing to do with the double jeopardy principle. It is where proceedings simply go off on a tangent and lead to a wrongful acquittal. It can be picked up by a superior court saying, “No, go away. Have a fresh trial.” That cannot happen at present and certainly will not happen as a result of this bill. Still, the reference appeal from the Magistrates Court to the Supreme Court will be of some use, although I do not expect we would see it often.

The security industry has requested some amendments to the Security Industry Act that have been accepted. One point that the Scrutiny of Bills Committee did review was smoking in public places. There was a double penalty that could be imposed here, and I think that is very unfair. It has been picked up, which is good. There are penalties already for people, certainly for establishments, who allow people to smoke or do not police it properly and certain things flow from that, ranging from warnings to fines, through to the cancellation of licence. The legislation, unfortunately, also imposed a double penalty in terms of an automatic cancellation of licence, which is a draconian penalty on top of an existing range of penalties at the higher end of the scale. This would mean that any establishment where someone was actually smoking, even if it snuck in under the radar of the establishment, would not only face the normal penalties, which might not be very much in the instance I give, but also an automatic cancellation as well. Quite clearly, that is not desirable; it not fair. It is not in the interests of justice. This amendment ensures that there is not a double penalty and there is no automatic cancellation of licence. Rather, the normal penalty scales will apply. So, all in all, the bill is worthy of support. The opposition supports the bill.

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