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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2819 ..

MR STANHOPE (continuing):

MR STEFANIAK (Minister for Education and Attorney-General) (1.57 am): Mr Speaker, I seek leave to move amendments Nos 3, 4 and 5 together.

Leave granted.

MR STEFANIAK: I move amendments 3, 4 and 5 circulated in my name [see schedule 5, part 1, at page 2875].

These amendments to clauses 63 and 64 correct references to the Road Transport Regulations. New regulations were made after the bill was introduced, necessitating these technical amendments.

Amendments agreed to.

Clauses 63 and 64, as amended, agreed to.

Clauses 65 to 67, by leave, taken together.

MR STANHOPE (Leader of the Opposition) (1.58 am): The Labor Party will be opposing these clauses. Part 10 of the bill relates to the Supreme Court Act 1933. This part allows the Crown to appeal against a jury decision to acquit an accused person if the trial judge made an error of law during the trial, or the judge misdirected the jury to acquit the accused. The scrutiny of bills committee canvassed this issue thoroughly, pointing out that at the core of the argument against such appeals is the principle against double jeopardy, that is, trying a person a second time for an offence of which they have been acquitted.

There is a distinction between a second prosecution and an appeal against an acquittal but, given that the accused is the weaker party in criminal prosecutions, the distinction is fairly minimal. The state has greater resources to commit to pursuing accused persons than the accused persons can spend on defending themselves. To allow this amendment would represent another undermining of personal freedom. It is an undermining of the finality of an acquittal, particularly when that acquittal is granted by a jury. The accused person's personal freedom would be subject to delay and uncertainty and the extent of the resources of the accused person could be ruined even if the Crown's appeal were dismissed.

The Attorney says that such appeals are permitted in the Australian jurisdictions of Tasmania and Western Australia. He also relies heavily on the fact that they exist in Canada and Bermuda. They probably exist in other places in the world. None of that means that we need to blindly follow their lead. If there is a need for such a provision in the ACT-we come back again to whether there is a need for such a provision-no doubt we should pick a well-tried model to copy. But there is no justification offered for the provision in the ACT; there is no justification offered. I am not aware of any public outcry or adverse media reporting of jury decisions to acquit an accused person.

We need to focus on that. This is about jury decisions to acquit accused persons. Some people have suggested to me in discussion about this issue that the dismissal of the charges brought by the NCA against John Elliott in Victoria is a reason for allowing appeals against acquittals. Mr Elliott's trial had some unusual features, but it was not

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