Page 814 - Week 03 - Thursday, 2 April 2020

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The judge will need to consider the view of both the prosecution and, in particular, the defendant. They will need to consider how long a defendant might spend in custody if the trial is deferred for perhaps 12 months or more. And if the trial is to be deferred for that long, is it appropriate to release someone on bail? I am sure defence counsel will apply for bail as a result of the prospect of delay; it is almost certain. But, given the serious nature of some of these excluded offences, will the community see bail as an appropriate option?

Another key factor for me, and the one that has ultimately decided our view on this, is the potential impact on victims if trials do not go ahead. A significantly delayed trial requires a victim waiting to give evidence to have to wait even longer. That outcome can increase trauma because it makes a victim wait longer for resolution. I have sought advice, and I understand from the DPP that 19 matters are listed for hearing between now and the end of June. That is a lot of victims of crime whose matters could be deferred. I am sure Mr Hanson and his colleagues would not want this outcome.

I am also interested to know what outcome Mr Hanson would want for an accused person charged with a serious crime but who does not accept a judge-only trial. Should this person go on remand and wait for what may be an unknown amount of time? Or should the person be released back into the community on bail, despite being charged with a serious crime, because there is no prospect of a trial in the near future? That may be the outcome if Mr Hanson’s amendment were accepted, and I am not sure we know the answers to those questions. Delaying trials also makes it more difficult to run the trial, as there is a greater chance that witnesses will not be available or that their memories will fade or other intervening factors will occur.

Subsection (4) also requires the judge to receive and consider submissions from the defence and prosecution before making a decision to hold a judge-only trial when it would usually be a jury trial. This is a key moment for the judge to weigh up the balance in the interests of justice. If the defendant has a strong and clear preference for a jury trial, these arguments can be presented to the judge through this process.

I have listened to the views of the Law Society, the Bar Association, Mr Hanson, the Attorney-General, the Human Rights Commission and the Victims of Crime Commissioner. In the end, on a finely balanced and complex matter for which there is not a single answer, we are opting to support the formulation in the bill as presented.

As I said, victims also need matters to be dealt with in an expeditious, fair and reasonable way. A jury trial is not in itself a prerequisite for compatibility with the right to a fair trial. In this unique set of circumstances where it seems jury trials cannot be held, defendants accused of serious crimes will be able to have judge-only trials, but their cases will still be able to be delayed until a jury can be constituted if the court decides that this is the appropriate approach in the interests of justice.

Question put:

That the amendment be agreed to.


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