Page 2521 - Week 06 - Thursday, 23 June 2011
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What the Canberra Liberals propose to do with these amendments is to create a better system which better reflects the needs of the community in relation to jury trials. This model is a model which is used in Western Australia where the court decides, on application by either side, as to whether the trial will be conducted before a judge alone or before a jury and that the election must be made before the identity of the trial judge is known. It would allow the Supreme Court to make an order for a judge-alone trial if it considered to be in the interests of justice to do so.
In making the order, the court can consider if a trial, through length or complexity, would be unreasonably burdensome or there was a likelihood of the jury being tampered with. The court may also refuse to make the order if it considers that the trial will involve factual issues that require the application of objective community standards on a range of issues such as reasonableness, negligence, indecency, obscenity or dangerousness. The process that is being proposed by the Canberra Liberals here today relates to all indictable offences, not just a select list.
Mr Assistant Speaker, I have to reinforce something again because the Attorney-General has done what I predicted he would do. He has attempted to verbal the Canberra Liberals. I will put it on the record again, as we did in May in relation to his attempts to change the approach to jury trials then: the Canberra Liberals believe in the paramountcy of jury trials. Jury trials have been part of our legal system since the end of the 13th century and we believe that they should continue to be so.
Since 1993 in the ACT it has been possible to elect for a judge-alone trial. The problem that we have with the ACT system is that this is an election where only one person has any say, and that is the accused. Once the accused can satisfy the court that he understands the process and he has made this decision independently, there is no impediment to any person to elect.
Even after this legislation passes today, for a range offences outside those involving death and those involving sexual offences, including inflicting grievous bodily harm, aggravated burglary, aggravated robbery—a whole range of things which have quite substantial penalties attaching to them—there is still the same, almost identical, capacity to elect with no gate, no check or balance.
I was discussing the proposal that is being put forward by the Canberra Liberals with my colleagues the other day. Mr Hanson actually said, “So what this means is that accused have to apply.” Actually, that is the very simple way and very straightforward way of looking at it. I thought it cut through all the nonsense.
With this proposal an accused may apply. Also, the prosecutor may apply. But what they do is they apply and they put a position to the court. The court makes a decision in the interests of justice. So for the most part, keeping in mind that section 68A of the Supreme Court Act says quite clearly that there is primacy for a jury trial, the predisposition of the court must be for a jury trial under this process. As a result, there will be occasions when there may be an election for a judge alone, but they would be rare.
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