Page 3646 - Week 10 - Tuesday, 26 August 2008
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because it would put the victim through too much trauma. But there is an argument that in a number of other cases in criminal law it is sensible to have witnesses cross-examined, just to test the real strength of the prosecution case. Indeed, if a case is not strong, you ultimately might save time by just not proceeding further. If it is strong then obviously the matter will go to the Supreme Court.
We will need to see how that will operate. I think there is some justification for the view of the profession on this matter; indeed, comments were made about it in the scrutiny report. Again, it brings us into line with other states. Paper committals seem to work pretty well in New South Wales and other jurisdictions. To a large extent, they are occurring more and more here as a matter of course, anyway.
Another amendment reduces from two steps to one the process in which the Magistrates Court will commit a matter to the Supreme Court, to be on the basis of whether there is a reasonable prospect of conviction, based on the evidence before the court. That is a sensible provision.
There are also some minor changes. Terminology for “preliminary examinations”—that is, committals—is changed to “committal hearing”. The legislation will replace the current two-stage appeal process with a one-stage process, which is called a “review appeal”, and it introduces a scale of costs in summary criminal cases to regulate the award of costs made in the Magistrates Court. I will be interested to see how that applies. I have seen scales of costs. I am advised that the reason is that often costs awarded to defendants have been exorbitant. In many other jurisdictions, it is fairly rare for the defence to be awarded costs, even if the prosecution is unsuccessful.
The law here has been interpreted very generously. We had the ruling in McEwen v Siely that costs normally follow the event, but where the defendant basically brings it upon themselves, the court has very much a discretion not to award costs. Some magistrates would do that; others would not. The practice probably in more recent times has been that costs tend to follow the event, regardless. I think some restriction there is sensible. I have seen numerous cases where defendants have been acquitted when, clearly, they had done something wrong, but there was a technicality. The breathalyser cases spring to mind in particular. It may be clear that the defendant was very much in the wrong but they have got off because of a technicality and not because of some substantial variance of fact which would lead you to believe beyond reasonable doubt that there was some doubt as to whether they committed the crime. So anything that tightens up against excessive costs being awarded is sensible.
I note that the government—and I think this is a shame—has provided for reference appeals. I would have liked to have seen it go further in terms of this type of legislation and introduce an appeal right from the Supreme Court to the Court of Appeal for the prosecution when the judge basically gets it wrong or makes an error. Effectively, it would give the Crown, the DPP, the same right of appeal as the defendant. I note that the attorney has said that is something that he has now committed to. That is good to hear because in the past the Labor Party have actively opposed that. In fact, with respect to legislation I introduced as attorney and that was debated in 2001, they objected most strongly to that very sensible clause. It seems
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