Page 2692 - Week 09 - Wednesday, 25 August 1993
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The criminal system is a two-tiered one for trials of first instance in this Territory. Less serious offences, offences for which the maximum penalty is less than one year's gaol, are tried by a magistrate. More serious offences, where more than one year's gaol is the maximum penalty, are tried at the moment by a judge and jury. It is perhaps a little bit arbitrary to make that distinction in quite that way. It depends, for example, on a regular and accurate reflection of the accuracy of penalties, and that entails reviewing the penalties regularly, which I suspect we do not do as much as we should; but that distinction is now to be modified and the provisions here will allow a person effectively not to have the right to a jury but to have only a member of the bench presiding over their trial.
I want to note two points about this proposal. Proposed new section 68A of the Bill restates a person's right to trial by jury. It is not, in effect, a new grant of a right, however. Section 395 of the Crimes Act, which has been in place for quite some time - you can tell by looking at the language used in that section - also confers a right, in effect, to trial by jury. The reason that the Minister advances for repeating that reference to the right to trial by jury is contained in his presentation speech. There he says that it is designed to reaffirm the right to waiver, as something in the background that needs to be restated before you confer a right to draw away from that particular right.
The second point is that an election to have a trial by judge alone is not possible where there are a number of co-accused and where even one of those co-accused does not make a similar election. In the event that you had six people being jointly tried at the same time for a particular offence, if only one elected to have trial by jury, then the other five would similarly be compelled to have trial by jury as well, unless there was some way of negotiating the splitting of their trial into six different trials or, perhaps, two different trials. A failure to make an election effectively allows a trial to proceed by jury and thus, in a sense, jury trials remain the status quo in this Territory. The Minister makes no reference in his explanatory memorandum - - -
Mr Wood: You do not want juries.
MR HUMPHRIES: I will talk about juries in a moment.
Mr Wood: You just want to condemn people out of hand.
MR HUMPHRIES: No, I am not like that. I believe in giving people a fair hearing. I know that that is not in the tradition of the Labor Party, so I will not affront you by putting forward the reasons as to why it should be otherwise, Mr Wood. There are some financial savings and, of course, this Government is very big on saving some money. There are financial savings both where a jury is dispensed with and where summary proceedings are dealt with by the Supreme Court. It is not clear, of course, how much that would be, because it is not clear whether people would make use of this particular provision in large numbers. To some extent, I suppose, there would be apprehension on the part of the community as to what this kind of election would mean. Do they choose this course; do they choose that course? Would it mean a better trial for them or not?
I note, Mr Temporary Deputy Speaker, that in New South Wales, when an amendment to the Crimes Act allowing a waiver of jury trial for particular crimes of a commercial character was introduced in 1979, there was, unfortunately, not much use made of that provision because it got off to an inauspicious start.
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