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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2826 ..

MR STEFANIAK (continuing):

very different from matters dealt with summarily, where costs follow the event, although invariably that means that if the prosecution loses it pays because normally the prosecution would not seek costs when it wins in a summary matter.

In appeals from the Supreme Court, normally each party pays their own costs, so this would be a departure from the usual practice in criminal proceedings. I would be interested to know members' views here. I am concerned that this is very much a departure from the norm. There have been arguments from time to time in terms of costs actually being applied in trials, which is something that has never occurred in any jurisdiction in Australia. I think that would be a dangerous precedent to set. In relation to this matter, I think the government would have to oppose the amendment, but I have some sympathy for Ms Tucker's point of view because of the rare nature of this occurrence. I would be interested in the opinions of other members on the matter.

MS TUCKER (2.25 am): I think that it is really important to look at the question of natural justice here. This is about a situation which is in no way the fault of the person. Sure, it is not the usual situation, but we are talking about it because it is an unusual situation. If it is going to be allowed to occur and it does occur through no fault of the person concerned, why would you not take responsibility for that? It seems fair to do so.

MR STANHOPE (Leader of the Opposition) (2.26 am): Mr Speaker, we have proceeded in relation to this issue in a slightly different way. As I indicated before, I oppose this provision. I do not think we need to go down this track. I do not think that a case for it has been made. I expressed all those views before. Ms Tucker has the same views, but Ms Tucker and I have perceived it in slightly different ways in our response to it.

I oppose it; I hope it will be defeated. Ms Tucker has the same view. Ms Tucker has now been able to move an amendment to it seeking, so far as she is concerned, to make a better provision out of it in the event that it succeeds. I had proposed a couple of amendments. In the event that the Assembly passed this provision, I had proposed to have the section recommitted; but, I have to tell you, at 2.30 in the morning it is just too late to be worrying about recommitting it and having a second debate on the same issue in five minutes. It is too much for me.

I have just circulated amendments that I had proposed to have recommitted just for the edification of members and to inform the debate about Ms Tucker's amendment. I am just foreshadowing that, subject to what happens with this provision, which should be defeated, I have a couple of other amendments of the same order or ilk as Ms Tucker's, namely, that if we are going to abandon the rules in relation to double jeopardy, if that is what the Director of Public Prosecutions is going to do on behalf of the state, to force people to a second trial, then the state has to bear some responsibilities for the costs in relation to both the application and the trial.

That is the difference between my amendment and Ms Tucker's. It is not just a question of the trial being supported. Think of the application. The DPP comes before the court and makes an application for a second trial and the poor person who has just been acquitted goes home, has his party and discovers later that there is an application to try him again. Of course he is going to oppose it. He is going to go back

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