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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2820 ..

MR STANHOPE (continuing):

conducted in the ACT by an ACT judge. Others have whispered to me about the dismissal of the charges against those accused of murdering the Saudi diplomat in the ACT. That is suggested subliminally as a reason for this amendment. I do not know a single person in the private legal profession familiar with that case who would suggest for one minute that the trial judge made an error of law or misdirected the jury.

We need to be clear about that. I know of no single person in the ACT who believes that the trial in relation to the Saudi diplomat was affected by an error of law or a misdirection. I am not aware of anyone who looked at the matter and thought for a single minute that that was the case. They have some other explanations, but I know of nobody who would suggest that it has anything to do with the judge or the jury, or any direction of the judge or mistake of law.

No-one has said that our trial judges are so incompetent that they can make errors of law during a trial that affect the outcome, nor has there been any suggestion that a judge has misdirected a jury to acquit an accused person. You have to ask, on the basis of all that, why we are doing what we are doing. Could it be that this proposal is on the agenda of meetings of directors of public prosecutions, that other jurisdictions are considering it and we must keep up with or even be ahead of the neighbours? Is that why we are doing it?

Once again I go back to the issue that I have raised a number of times tonight that, unfortunately, only the AFP, the AFPA and the DPP were consulted. Many of the other proposals we have considered tonight were proposals that, one can imagine, were suggested by the AFP. Here we have a proposal that suggests it was sponsored by the DPP. Unfortunately, nobody else was consulted; just the DPP. The police got all their little amendments in other sections of this proposal; here is one for the DPP.

I must say that there are some arguments in favour of adopting a provision if an unfair dismissal may be reversed, giving a greater sense of justice to the victims and their families, if a serious error during a trial may be corrected and if it ensures that the judge will maintain a balance between the parties. But the arguments against this proposal are far greater than any arguments that can be advanced in favour of it. With the resources available to it, the prosecution should not make any significant mistakes during a trial.

Errors of law by trial judges are easy to find, but may not have affected the outcomes of the trial. I am advised by some of my acquaintances and contacts at the bar, in particular, that there is probably not a single trial in which you could not find some error of law by the judge. It happens in almost every case, but almost in every instance the error is trifling and does not affect the outcome. Another argument against this proposal is that the accused person suffers a huge cost penalty by having to respond to the appeal and perhaps go through a second trial.

It is only fair to refer to the comments that the Bar Association, one of the organisations that should have been consulted about this legislation, made in relation to this proposal. It said:

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