Legislative Assembly for the ACT: 1998 Week 9 Hansard (17 November) . . Page.. 2555 ..
Debate resumed from 3 September 1998, on motion by Mr Stefaniak:
That this Bill be agreed to in principle.
MR STANHOPE (Leader of the Opposition) (11.17): Mr Speaker, I have indicated to the Attorney that the Opposition will be supporting this Bill. It is a fairly small amendment but I think quite a significant matter. It relates to the order of address by the defence or the prosecution in a criminal trial before a jury. It actually provides the discretion to the defence to address last. As the Attorney has previously indicated, the Bill catches us up to New South Wales and to other jurisdictions in relation to the order of address. It is a change that reflects the fact that jurisdictions around Australia have successively abandoned the right previously available to a defendant to make an unsworn statement.
In the minds of some jurors, some lawyers and civil libertarians it seeks to address the balance that applies in a criminal matter, where an accused person should be given every opportunity to profess and protest their innocence to the end. To balance the loss of the so-called right to make an unsworn statement, the defence may seek to address last.
A couple of comments that I wish to make about the process that was applied in relation to this particular amendment actually go to the comments which were made by the scrutiny of Bills committee. I think it is quite an interesting matter. I raise it because the scrutiny of Bills committee expressed some serious concerns about a couple of aspects of this particular amendment. I read the scrutiny of Bills report in some detail and gave serious consideration to the issues raised by the committee going to a couple of issues. I think it probably is worth noting for the record that the committee did raise some matters, going in the first place to concerns that perhaps the amendment did create some confusion about whether the defence was being given a discretion or whether the proposal would actually require in all instances that they address last and would remove their right to address first if that was their wish. I never did quite understand the basis on which the scrutiny of Bills committee made that suggestion, but it is interesting that it was noted. Let us hope that that is not the effect.
The scrutiny of Bills committee also suggests that there are concerns about the diversion of time in a criminal matter in situations where the defence, if addressing last, raise issues of fact that had not previously been raised. The legislation allows the prosecution in those circumstances to seek to address the court again on those assertions of facts which were not previously raised and which the prosecution believes are not supported by any of the evidence.
I notice that the Attorney, in a detailed response to the scrutiny of Bills committee, did respond to each of the issues raised. The Opposition is minded to accept the Attorney's response to each of those issues. I think those responses reflect the Opposition's views on those particular matters as well. But I just put on the record that on this issue there was a significant and serious report from the scrutiny of Bills committee which the Government has responded to fully, and the Opposition is persuaded that the response of the Attorney does appropriately address each of the issues.