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Legislative Assembly for the ACT: 1998 Week 6 Hansard (3 September) . . Page.. 1856 ..

MR STEFANIAK (Minister for Education) (10.33): Mr Speaker, pursuant to standing order 80, on behalf of Mr Humphries, I present the Crimes (Amendment) Bill (No. 5) 1998, together with its explanatory memorandum.

Title read by Clerk.

MR STEFANIAK: I move:

That this Bill be agreed to in principle.

The Crimes (Amendment) Bill (No. 5) 1998 makes changes to the Crimes Act 1900 relating to the order in which the defence and prosecution address the jury in a Supreme Court trial. The Act includes procedural provisions relating to trials upon indictment. In general terms, indictable offences are offences which are punishable by imprisonment for a period exceeding one year. They are offences at the more serious end of the scale.

There are provisions for some indictable offences to be dealt with by the Magistrates Court. However, for the most serious crimes, such as murder, and in cases where the accused does not agree to an indictable matter being dealt with in the Magistrates Court, or the Magistrates Court does not consider it appropriate for such an offence to be dealt with by that court, indictable offences are tried in the Supreme Court.

Unless the accused agrees to trial by judge alone, the offence is tried before a jury. At the end of a jury trial it is the practice of counsel for the defence and counsel for the prosecution to make a closing address to the jury. Presently, the Act contains no provisions in respect of the order in which the defence and the prosecution may address the jury at the end of a trial. The practice in the ACT has been for the defence to make its address first and the prosecution to address the jury last. There has been some variation between Australian jurisdictions as to the order in which the prosecution and defence may address the jury at the end of a trial. Until relatively recently, the ACT position followed New South Wales.

However, with the amendment of the New South Wales provisions on order of address in 1994 the ACT became the last jurisdiction in Australia where the prosecution routinely addresses the jury last. The New South Wales amendments dealing with the order of address were included in a package of legislative amendments primarily to remove the right of an accused to make an unsworn statement. It is fair to say that there was a view in the legal profession that the opportunity for the defence to address the jury last was something of an offset for the abolition of unsworn statements.

When changes were made in 1994 to the ACT Crimes Act and the Evidence Act to remove the right of an accused person to make an unsworn statement to the court, they were not complemented by any provisions dealing with the order of closing address.

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