Legislative Assembly for the ACT: 1998 Week 9 Hansard (17 November) . . Page.. 2557 ..
MR HUMPHRIES (continuing):
There has also been a suggestion about the safeguard built into the legislation giving the judge the right to reopen an address from the prosecution where some matter has been asserted which is not supported by evidence. That is a necessary precaution which in my view presents no danger at all that a trial could miscarry or that there could be some other problem pertaining to the operation of the trial.
Mr Speaker, similar provisions have been in place now for a number of years in New South Wales. They have operated there, apparently without any difficulty at all. To the best of my knowledge, no trials have been aborted because a prosecution has reopened to make some response to a remark made by a defence counsel in these settings. There has been no confusion about the use of similar words in New South Wales. It seems to me that there is very little risk presented by having that capacity built into the legislation.
There is a suggestion also that after the words "are asserted" should be inserted the words "to exist or not to exist", so that certain evidence or certain matters are asserted to exist or not to exist. My advice is that those words are not necessary. One asserts things necessarily and whether it is a positive or a negative matter, whether certain things are asserted to be the case or not to be the case, is hardly necessary. It is unnecessary use of words. I have suggested, and I think the committee has accepted, that those words are not necessary to be inserted in the Bill.
The committee also posed the question: Is proposed subsection 423A(2) necessary? Again, I refer to the fact that in New South Wales a similar provision has operated without apparently any problem. There has been no comment at all from the profession or from the prosecution service about difficulties with that particular provision. The point is also made that of course a judge has the conduct of a trial at his or her disposal, and if proceedings are conducted in such a way as to offer prejudice to a defendant the judge has an overriding common law capacity to take steps to protect the right to a fair trial. Indeed, not only is it within his power but it is his obligation under the law to ensure that that takes place. Even if any provision of this kind were abused by an overzealous defence counsel or in turn used injudiciously by a prosecution, I find it very hard to imagine that any judge worth his or her salt would allow that to prejudice the conduct of a fair trial.
Mr Speaker, having made it clear that I do not support some of the comments made by the Standing Committee on Justice and Community Safety, I thank the Opposition for its support for the Bill. I think it will be a significant change. Certainly the profession has sought this change for some time. These changes have been canvassed, as I said, with a number of parties, including the Legal Aid Commission, the Director of Public Prosecutions, the Law Society of the ACT, the Bar Association of the ACT and the former Criminal Law Consultative Committee that operated in the ACT. None have expressed any concern about these provisions. I thank members for their support, and I look forward to the legislation operating successfully to enhance the right to defendants in criminal trials in this Territory.