Page 5339 - Week 17 - Tuesday, 3 December 1991
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There are a couple of other issues which I would also like to stress, Mr Speaker. There have been a number of instances in the ACT over the years - I personally was involved in one of them some time ago - of a Supreme Court judge taking away a trial from the jury. That rarely happens in other States. There was a very controversial case recently involving Judge Higgins, which has been appealed by the Director of Public Prosecutions; accordingly, I will make no further comment, save to say that it certainly was controversial.
But he is not Robinson Crusoe in that regard. His colleagues beforehand, on occasions, have taken trials away from juries, have basically decided the point themselves and have dismissed cases. That is fine to an extent. There always should be some provision for a Supreme Court or a superior court judge to do that. However, Supreme Court judges, just like the rest of us, are human, and no-one should ever lose sight of that fact either. There is nothing mystical or magical about being a magistrate or a judge. They are there to do a job, just like the rest of us are here to do a job.
The jury system goes back hundreds of years. I certainly believe - I think my two colleagues would agree with me - that the jury should be the paramount body judging a trial. I would accordingly recommend, and I did, as an afterthought, that when the Assembly takes over the Supreme Court it change the Act to give the Crown the right of appeal against a trial judge who takes a case away from a jury.
If that appeal is successful, there then must be a provision for a fresh trial. At present the Crown can appeal on a point of law, but there is no fresh trial. If the trial judge is deemed by his superior court to be wrong, there should be provision for a fresh trial, because the jury verdict should be paramount. The jury is the sole judge of fact. If a judge errs in taking a trial away from a jury, he should be subject to review by a higher court. In the ACT that would be the Federal Court. If that appeal is successful, there should be a fresh trial. I think that is very important.
I would recommend that that be done after we take over our Supreme Court. If the Federal Government was so minded, it could do so beforehand. Indeed, it could also take some steps to adopt some of the law reform measures we propose in this report, were it is so minded, prior to 1 July when we take over our Supreme Court.
I suppose, when one talks of jury trials and of the Supreme Court, just as an aside, it is probably important for this Assembly or the next Assembly to look quite carefully at the terms and conditions of the appointment of judges. At present they are very much there for good. There are huge problems in terms of removing them. I think you need a
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