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Legislative Assembly for the ACT: 2001 Week 6 Hansard (15 June) . . Page.. 1814 ..

MR STEFANIAK (continuing):

facilitating the routine fingerprinting and photographing of any person in lawful custody in respect of an offence, including juveniles aged 16 years or over, to ensure the integrity of the fingerprint and photograph databases.

All those powers will greatly assist our police force.

Another emerging community problem is that of noisy parties or other sources of noise in our suburbs which impact negatively on other residences. Currently, the police are able to issue a noise abatement direction, but on occasions such directions have been ignored once the police leave the area. Clause 38 of the bill will enable police to seize any equipment generating offensive noise in certain circumstances. The intention is to ensure compliance with the noise abatement direction by temporarily removing the means of generating the noise.

Part 4 of the bill also contains amendments to the Crimes Act 1900 to insert a detailed new procedure for inquiries into convictions. Members may recall that last year, following his unsuccessful High Court appeal against his conviction for the murder of Colin Winchester, David Eastman indicated that he would seek an inquiry under section 475 of the Crimes Act of 1900 at some stage. Although that section has never been used in the ACT, its equivalent in New South Wales has been invoked on many occasions and has been substantially amended, largely to overcome the gaps and uncertainties in the operation of the provision as previously drafted.

It is thus timely to review the ACT's provision which reproduces an English provision that was developed before criminal appeals were permitted. Now that appeals are available in criminal matters, there is considerable duplication between the matters that may be canvassed in a criminal appeal and the matters which can be considered in an inquiry under section 475. Further, the provision provides only the barest of guidance as to how inquiries are to be conducted and what options are open at their conclusion. Perhaps the major shortcoming of section 475 is that the only options at the end of the inquiry are either to do nothing or to exercise the executive prerogatives to quash a conviction or remit a sentence. There is no facility to have a case retried where the inquiry shows that there was a procedural defect in the original trial.

The bill resolves these deficiencies by clearly articulating the processes for initiating and conducting an inquiry, and includes the option of ordering a fresh trial at the conclusion of the inquiry should the court consider this appropriate. The new inquiry process is intended to supplement, not duplicate, the criminal appeals structure and is expected to be invoked only in cases where evidence of a miscarriage of justice-for example, DNA evidence which exonerates the accused, or a confession by the real offender-comes to light after all opportunities for appeal have been exhausted.

In addition to their crime investigation and prevention roles, the police are often called upon to protect members of the community from possible harm. At times people are at greater risk of harm, whether at their own hands or those of others, because of intoxication. Part 6 of the bill amends the Intoxicated Persons (Care and Protection) Act of 1994 to ensure, firstly, that it can cover all intoxicated persons regardless of the source of their intoxication. Secondly, the amendments ensure that detention in police cells is the option of last resort. These amendments recognise that the primary need of

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