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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2823 ..

MR STEFANIAK (continuing):

trial judge, whereas a defendant who is adversely affected by the error of a trial judge can have the right of appeal. The prosecution does have a right of appeal from petty sessions, which are called orders of review, and can appeal to the Supreme Court. So some of the distinctions being made here by Mr Stanhope really are not all that logical.

I want to stress that the power of the Court of Appeal to order a retrial following an acquittal is discretionary. That means that, even if the court determines that there has been an error of law, it remains free to let the acquittal stand if it so chooses. For example, the Court of Appeal might find that there has been an error of law, but decline to order a retrial because it regards the error as being trivial or unlikely to have affected the verdict. On the other hand, there may be cases where the error was serious, but the court considers a retrial would be pointless because key witnesses are no longer available, or because there was conduct by the prosecution at the trial which compounded the error.

Mr Speaker, I too have read the concerns of the Bar Association and the Law Society and responded to them. I think I have provided members with a copy of my response. It is probably useful to read out the response to John Purnell, the president of the Bar Association. I said:

Dear John,

Thank you for you letter of today's date concerning the Crimes Legislation Amendment Bill 2001 and enclosing a copy of the submission on the Bill by the ACT Law Society's Criminal Law Committee.

The ACT Law Society has previously provided me with a copy and I attach, for your information, a copy of my response ...

In relation to your comments opposing the amendments to permit orders to review acquittals, I draw the Association's attention to the fact that other common law jurisdictions, such as Canada, Bermuda, Tasmania and Western Australian, have already legislated to allow the Courts to review certain acquittals where there has been an error of law by the trial judge.

I am aware of arguments that somehow the proposal represents an infringement of the principle against double jeopardy, and may be contrary to Article 14 (7) of the International Covenant on Civil and Political Rights. As you will be aware, that article provides:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

I believe that arguments which suggest that the proposals run contrary to this principle are unfounded and based on a fundamental misunderstanding of the concept of double jeopardy.

Further, they do not appear to take account of the series of rulings by the Supreme Court of Canada which deal with this very issue. That Court has confirmed that appeals by the Crown against an acquittal are not in breach of the Canadian guarantee, found in section 11(h) of the Canadian Charter of Rights, that:

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