Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2825 ..

MR STEFANIAK (continuing):

leads to an acquittal or erroneously takes a case away from a jury. I think it is an important addition to our criminal law. As I said, it just did not come out of the blue. It is certainly something that has been before the Standing Committee of Attorneys-General and other states have already enacted it.

MS TUCKER (2.18 am): I do not believe that a strong case has been made to allow the DPP to appeal against acquittals. The Attorney-General has explained that the Canadian Supreme Court does not have a problem with that, nor do Tasmania or Western Australia, for what that is worth. He has said that the new power will allow a defendant who is acquitted only because a court made a mistake to be retried. That is not the case. This bill allows anyone acquitted to be retried if a court has made a mistake in law or misdirected a jury. That is not the same thing. As the Law Society and the scrutiny of bills committee eloquently argue, this bill is a slapdash piece of legislation which undermines one of the keystones of our criminal justice system and reflects very poorly on the government which has brought it in.

Clauses 65 to 67 agreed to.

Clause 68.

MS TUCKER (2.21 am): I move amendment No 8 circulated in my name [see schedule 6 at page 2881].

This amendment to clause 68 is one of natural justice. Basically, it is saying that if, after acquittal, an offender is to face a retrial through no deception, error or action of their own but through an error of the court, then the cost of such a retrial ought to be borne by the territory.

MR STANHOPE (Leader of the Opposition) (2.22 am): I support this amendment. I will oppose this clause, but this is one of those situations where, if it is to succeed, then it needs to be improved. Ms Tucker's amendment certainly does that. It is quite reasonable. I cannot see why members could not accept it.

Ms Tucker's proposal is that if the Court of Appeal makes an order under subsection (2), the territory must meet any reasonable legal cost that the defendant incurs in relation to a new trial. If one makes any consideration around the reasons we have rules in relation to double jeopardy, it is very much around the different powers and the different resources that the state and an individual defendant can bring. If we go down this path, we have to ensure that we do not create a circumstance in which a defendant is so burdened by having to face a second trial that they are simply pushed even further into the bankruptcy that they are probably in after the first trial. I have a couple of other amendments in relation to this matter. I will move them subsequently, depending on what happens now. I am just foreshadowing that, because it has got me totally confused.

MR STEFANIAK (Minister for Education and Attorney-General) (2.23 am): Mr Speaker, it is obvious that it will be in a fairly rare situation that this will occur and I must say that I do have some sympathy for Ms Tucker's argument. There is, however, a general and longstanding principle in our courts that for indictable matters, matters that actually go to the superior court, each party bears its own costs. That is

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .