Page 4384 - Week 14 - Tuesday, 22 November 2005
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The position taken by the government in relation to previous such amendments was that the essence of the amendment proposed by Mr Stefaniak was really a change in language or style; that the language and style utilised in the legislation were the language and style preferred by the parliamentary counsel’s office and which had been recommended by that office; and that the government was disinclined to accept the proposal by the opposition in relation to that. That remains the government’s position. Mr Stefaniak acknowledged that in his opening comments. That deals with proposed amendment 13. Proposed amendment 14 will also be opposed by the government. The shadow attorney proposes to remove paragraphs (d) and (e) from clause 34 (1). Clause 34 (1) (d) reads:
In deciding how an offender should be sentenced (if at all) for an offence, a court must not increase the severity of the sentence it would otherwise have imposed because of any of the following:
Subclause (d) reads:
that the offender may have committed perjury or been guilty of contempt of court during the proceeding;
Subclause (e) reads:
the offender’s behaviour in court;
It is the position of the shadow attorney and the opposition that those two provisos should be removed from clause 34, which is headed “Sentencing—irrelevant considerations”. The legislation as structured puts the position that the offender’s behaviour in court and the fact that the offender may have committed perjury or been guilty of contempt of court during the sentencing proceedings are irrelevant considerations. But the shadow attorney argues that the prospect that an offender who is being prosecuted may have perjured himself, been guilty of contempt or may have behaved in court in a certain way are relevant considerations.
To take that to its logical conclusion, if an offender is in the dock and proposes a defence or explanation and perjures himself to the extent that his alibi is not believed, or the position he puts in his defence is obviously rejected, and there is a prima facie case or suggestion that he has not been strictly honest and it is found by the court at the end of the day that he has perjured himself, then the second offence—essentially perjury—should be taken into account in the sentence handed down in relation to the offence for which the person is in court in the first place.
I think we would all be surprised if some people who appear before the Criminal Court are strictly honest in what they say in their defence. We would all be aware of cases in which somebody charged with an offence has created a purely fictional defence. To the extent that defences are often ignored and completely disregarded when the court finds a whole range of other facts—in other words that they committed the crime—then, prima facie, the person has committed perjury.
I think that, in the context of law and justice and prosecutions and defences, it would be fair to assume that the vast majority of people who plead innocent and are subsequently
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