Page 1246 - Week 04 - Thursday, 26 March 2015

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The Crown bears the onus of proving the guilt of an accused on every issue apart from insanity and statutory exceptions. The Crown must present the whole of its case foreseeing, so far as it reasonably can, any “defence” which an accused might raise, for the Crown will not be permitted, generally speaking, to adduce further evidence in rebuttal on any issue on which it bears the onus of proof.

From a prosecutor’s perspective, the scrutiny committee also put forward criticisms of pre-trial disclosure provisions by a former New South Wales Director of Public Prosecutions:

It can be seen that they impose new and extensive disclosure obligations on the defence.

From a judicial perspective, the committee reports the position of Justices Johnson and Latham of New South Wales, who were also critical of the New South Wales scheme. Our conversations with the Bar Association and the Law Society exposed similar concerns. Those concerns were taken very seriously by us, and I thank them for their input and the correspondence I have received. They are legitimate concerns on important principles that play a vital role in our justice system. However, in legal matters, as always, there were other points of view.

The Attorney-General offered a briefing from his directorate—I thank him for that—which put forward the government’s position, and we received the attorney’s response to the scrutiny committee report. We also spoke to a range of those involved in the front line of the criminal justice system, and we found their input very instructive. Prosecutors were in favour of these changes, as was the Victims of Crime Commissioner. Importantly, the Legal Aid Commission were also in favour of these changes, and I acknowledge their input in this debate.

If there is one group that represents those most directly affected by these changes, it is the Legal Aid Commission, a group that works for and represents those most vulnerable to a shift in the balance of justice. The Legal Aid Commission is in favour of these changes.

It is interesting and important to note that these changes were not just extolled in the interests of efficiency. I make the point that efficiency is neither the sole nor the most important consideration. The most important consideration is justice, and that is what was put to us compellingly by these groups. They spoke of the importance of the judicial system and juries in particular to have access to the full facts from both sides. These changes were put in that context—that justice is best served when all facts are available to be presented and to be meaningfully cross-examined.

There is more legal precedent to be considered in addition to those cases I have already mentioned which have added to or modified earlier statements. In 1989 the High Court specifically addressed the question of disclosure, where Chief Justice Mason summed up the position as follows:

The privilege against self-incrimination would not ordinarily protect a person against disclosure of his defence to a criminal charge. The so-called right not to

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