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Legislative Assembly for the ACT: 1998 Week 9 Hansard (17 November) . . Page.. 2556 ..

MR STANHOPE (continuing):

Having regard to the strength of the report of the scrutiny of Bills committee, I trust that the Attorney and his department will monitor the application of this particular change to ensure that it does achieve the desired outcomes. I take the Attorney's assurances that in New South Wales the change to this system has created no difficulties and no hiccups, but it is an issue probably worth somebody within the Attorney's department keeping their eye on. The Opposition is happy to support this amendment.

MR HUMPHRIES (Attorney-General, Minister for Justice and Community Safety and Minister Assisting the Treasurer) (11.22): Mr Speaker, again today I rise to thank the Opposition for its support for legislation. This is, as Mr Stanhope points out, a simple but fairly significant piece of law-making with respect to the conduct of a trial. In drafting this legislation and putting it forward, the Government has certainly consulted very closely with a number of arms of the legal profession - with courts, with lawyers in private practice and with public bodies associated with this. It has received full support from those quarters for these changes.

As I think was indicated in the presentation speech, in a sense this fulfils a promise made by my predecessor Mr Connolly that there would be balance in the conduct of a trial. With the passage in 1994 of legislation abolishing the right to make an unsworn statement in court proceedings, the expectation at that stage was that the advantage conferred on a prosecution would be offset by an equivalent, if you like, quid pro quo, to a defence by the capacity of the defendant to go last in addresses to the jury before a judge sums up. This legislation puts in place those provisions.

Mr Speaker, in those terms it is surprising to see some of the comments proposed by the legal adviser to the scrutiny of Bills manifestation of the Standing Committee on Justice and Community Safety. I want to put on record my considerable surprise at the content of some of those comments. The Government was particularly surprised to see reference to the possibility that the Bill could constitute an undue trespass on the personal rights and liberties of defendants in criminal trials, the surprise stemming from the belief that the Government had that it was actually enhancing the rights and liberties of defendants in those settings.

What the committee's adviser - I distinguish the committee from its adviser - has suggested is that in some way there will be prejudice delivered where a defendant, for example, may not wish to go second in a jury trial. I would be extremely surprised if there were very many defendants, if any, who in the course of any trials conducted in this Territory for the foreseeable future did not wish to have their counsel exercise the right, as would now be the case with this legislation passing, to have their remarks made at the end of the trial before the judge sums up.

It is almost commonsense that when long addresses are being made to a jury - and they generally are quite long affairs, sometimes lasting for days at a time - the defendant will feel some advantage by being able to have his remarks, as it were, ringing in the ears of the jury when the judge comes to sum up and close the trial. This has been seen universally by the profession as an advantage to the defence, so I have to reject fairly emphatically the suggestion in the committee's report that in some way this constitutes some trespass on the rights and liberties of a particular defendant.

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