Page 4276 - Week 14 - Tuesday, 29 November 1994
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
Clause 4 has the preamble that I have mentioned. It says that these principles are to be followed as far as practicable and appropriate. I am not quite sure what the test of appropriateness is, but one could say that it is inappropriate for defence counsel to go soft on a victim-witness merely because that person happens to be a victim as well as a witness. Madam Speaker, the essential answer to this problem is that these principles are, in effect, nothing more than guidelines for the use of those involved in our court system; they are not bases of decisions, in the sense that they can be challenged if those bases are not employed; they are not rules which give rise to an action to have a decision set aside because they have not been observed. At least as far as I can tell, that is the case.
It might be possible for a case to be made out under the AD(JR) Act if it could be proved that a person had failed to take into account one of these principles; but I suspect that the worst consequence of an adverse finding in that forum would be that the decision would simply have to be remade, taking into account the principles. I am not sure whether an action for unprofessional conduct or unethical conduct on the part of a lawyer might lie from the breach of one of these principles. That is not clear, but I suspect that the answer is no. That fact constitutes a serious weakness in the legislation, because, to a large extent, there are no consequences that flow from the non-observance of these principles. I certainly get a good feeling when I look at the legislation and see those principles set out in black and white, but I doubt that the warm inner glow which I enjoy from seeing that is likely to be shared by a victim. Such a person reading that document would be unlikely to overcome the sense of resentment at having been violated, and the anger, grief and frustration which a victim in that position would feel.
The question needs to be asked: Could it be otherwise? I think that the answer is yes; in some key respects, it could be otherwise. Look, for example, at principle (i), which states:
a victim's residential address should be withheld unless the court directs otherwise;
Why is it not possible for that to be not just a principle which tends to guide the court's conduct, but a requirement of the law which it is not possible for a person to breach without breaching the law? Principle (j) says:
a victim should be relieved from appearing at preliminary hearings or committal proceedings unless the court directs otherwise;
Is it not possible to incorporate that into the mandatory law of the Territory rather than simply, in a sense, the advisory position which is inherent in this? Principle (k) says:
a victim should be given an explanation of the outcome of criminal proceedings and of any sentence and its implications;
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .