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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2822 ..

MR STEFANIAK (Minister for Education and Attorney-General) (2.08 am): Clauses 65 to 67 insert new provisions dealing with orders to review acquittals and, of course, they would commence only after the commencement of legislation to establish an ACT Court of Appeal. Suggestions have been made that these amendments breach the principle against double jeopardy.

The scrutiny of bills committee discussed this issue at some length but, curiously, failed to mention case law from the Supreme Court of Canada, which expressly ruled that Canadian provisions permitting prosecution appeals against acquittals did not breach the double jeopardy clause and the Canadian charter of rights. The scrutiny of bills committee also failed to mention other Australian jurisdictions, Western Australia and Tasmania-Mr Stanhope has now mentioned them-or the provision and legislation in Queensland and New South Wales which allow for prosecution appeals against judge-directed verdicts.

This matter did not come out of the blue. It is not just something run from the office of the DPP, although it may have been raised there some years ago. It is something that has been on the agenda of the Standing Committee of Attorneys-General for some time. In fact, I saw some reference to it at the first meeting I went to in Adelaide after I became Attorney-General. As a result of its being on that agenda, Tasmania and Western Australia have already enacted legislation and Queensland and New South Wales, as I said, have legislation to allow for prosecution appeals against judge-directed verdicts.

Errors of law which produce an acquittal represent a failure of the judicial system, just as much as errors of law which result in a wrongful conviction, and the victims of crime should be able to be confident that the offenders who have harmed them will not escape liability solely because the court made a mistake. Again, this is not rocket science. We are not proposing anything absolutely startling. It will have a very limited application. Mr Stanhope is right; it is pretty rare. I can think of several instances in the 1980s when it would have been handy. The DPP has in recent times taken out a number of orders of review to get direction. It goes to the Federal Court. The Federal Court will rule on a matter of law. It will not affect anything. There cannot be any retrial; the person concerned cannot go back again.

I am aware of a number of instances in the last 10 years of the Federal Court saying unanimously that the trial judge erred. In some instances it was serious enough-perhaps a wrong direction to a jury-to take the trial away from the jury. Back in about 1995 I had one of those instances. Incidentally, I would have recommended that we not appeal even if the provision were in existence because the circumstances of the offence were such that it would have been being unreasonable to the defendant and everyone else and a waste of money if we had. Clearly, if the case were serious and the facts were different, there would have been cause for some concern there and cause for concern in the community.

There have been instances in that regard. If Mr Stanhope talked to the office of the DPP and they went back through their books properly, they could point to a number of cases where they have got directions from the Federal Court, which are, of course, binding on the Supreme Court, but only, obviously, if a similar type of situation comes up again. They cannot redress the wrong of incorrect and inappropriate action by the

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