Page 2026 - Week 06 - Thursday, 26 June 2008

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Most notably, the bill introduces a new and improved method for commencing criminal proceedings in the Magistrates Court. Currently, the legislation requires police officers to attend court to lay information before a magistrate so that the court can issue a summons for the attendance of the defendant on a particular date. This has resulted in great time and financial expenditure for the police, courts, Director of Public Prosecutions and other court stakeholders. The process suffers from a poor rate of attendance by defendants and inefficiently diverts court resources from attention to more substantive issues.

Consistently with New South Wales, the bill implements a court attendance notice, or CAN, to introduce the inadequacies of the current commencement procedures. A CAN is issued at the time of charging and provides all the information required by the defendant, including a brief outline of the particulars of the offence, the time and date that the accused must appear in court, and the consequences of non-attendance.

The CAN system is more efficient than the summons process, and has been used successfully in other Australian jurisdictions, including New South Wales, for a number of years now. It facilitates keeping more police on the street and allows more time for the courts to deal with substantive issues. It also reduces the amount of time accused persons remain in police custody, as it will significantly simplify the process by which their criminal matters are commenced. Another benefit to the accused is the receipt of more information about the charge at the point of release, and greater certainty about the nature of the charge.

For transitional purposes and to allow flexibility for stakeholders, the CAN will supplement the existing commencement procedures during a 12-month trial of the CAN, after which existing procedures will be repealed if the CAN process is found to be satisfactory. The bill also amends the Supreme Court and Magistrates Court acts to allow reference appeals to be heard, irrespective of the outcome of the original proceedings. Reference appeals provide a means whereby a superior court may hear an appeal and decide a question of law arising at, or in relation to, the original proceedings. Given the safeguard that a reference appeal decision cannot invalidate or affect the original verdict or decision in a case, reference appeals provide an important avenue for the DPP and the Attorney-General to obtain guidance regarding interpretation of the law.

Important questions of law can arise in any criminal proceedings. If these questions remain unresolved, future prosecutions may be jeopardised due to uncertainty, yet the Supreme Court and Magistrates Court acts currently limit the availability of reference appeals to issues arising from a trial on indictment that resulted in an acquittal. Accordingly, the relevant sections of the acts have been amended to delete the acquittal criterion.

The bill simplifies the requirements for written statements admitted as evidence in the Magistrates Court. Currently, a written statement admitted as evidence must be in the form of a statutory declaration. In practice, this means that after a document is prepared, it must be signed in the presence of a person authorised to witness a statutory declaration. The requirement for a witness adds little, if anything, to the validity of the statement. It has been removed in New South Wales in favour of rules

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