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Legislative Assembly for the ACT: 2010 Week 10 Hansard (Thursday, 23 September 2010) . . Page.. 4434 ..

Another important but relatively uncontroversial set of amendments are those regarding evidence able to be used in the ACT courts. Recently the ACT Supreme Court held that evidence given from Victoria to an ACT court via a phone line was inadmissible. The reasons for this are technical and legal and are set out well in the explanatory statement. The summary version is that Victoria is the only jurisdiction not to have implemented model evidence laws about allowing for evidence to be given via a telephone line. This then impacts on the ACT’s ability to receive evidence given from Victoria. The Greens support the amendments today because they will ensure that evidence is able to be given from all states and territories. It is clearly an unintended consequence that evidence can be given on the phone from, say, Western Australia but not from Victoria.

Excluding one specific amendment, the remainder of the bill is minor and technical, and the Greens support it. The one remaining issue is the amendment to the Supreme Court Act in part 3.2, which Mrs Dunne has spoken about at some length. What looked like a minor amendment became increasingly complex after scrutiny made some comments on it on Monday. The response to scrutiny provided by the minister yesterday did not wholly answer the issues raised.

The issue is this: currently, a judge, when conducting a judge-alone trial, must take into account in their judgement a warning that they would have given a jury had there been one in place. A warning would generally tell a jury that they should treat with caution the evidence of a particular witness. The amendment will add “directions” and “comments” as matters that the judge must take account of had they been required to be given to a jury. A “direction” is a summary of the law as it applies to the facts in the case. A “comment” is, as it implies, a commentary or description of events during the trial. An example is where a defendant refuses to give evidence and the judge makes the comment that the jury cannot infer guilt from silence.

On the face of it, the amendment appears to ensure openness and transparency in a decision made by a judge. Put simply, a judge, even though they are an expert, should show in their ruling that they took account of all the relevant laws and requirements when they reached their decision. However, what was unclear was what appeal rights will lie open when a judge fails to refer to a “direction” or a “comment” in their decision. The attorney’s response to scrutiny said:

A failure to provide any particular warning or direction will not, of itself, necessarily determine the outcome of the appeal.

I agree that may be the case, but it was unclear when a judge’s failure would give rise to a right of appeal. The attorney’s office was able to provide further information to my office and Mrs Dunne’s office this morning, and I thank them for that.

The information has settled my mind that we are not putting into effect an avenue for inappropriate appeal rights. What the evidence from the attorney and the department has drawn out is that, for an appeal to be granted, the court needs to be satisfied that there is a miscarriage of justice. Clearly, this will turn on the events on a case-by-case basis. It may be that this test is supported in some cases by a failure of a judge to

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