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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2821 ..

MR STANHOPE (continuing):

In particular the Bar Association wishes to emphasise its concern about the proposed changes to the Supreme Court Act by the introduction of a new s.37P allowing for prosecution appeals against an acquittal. It has long been a fundamental premise of our law that once an accused person has been acquitted following a jury trial that that is the end of the matter and the accused person may not and should not be put on trial again.

We need to focus on those words used by the Bar Association: it is a fundamental premise of our system of law. That is what we are talking about here. We are talking about unseating a fundamental premise of our law. That is what we are doing; we are about to unseat a fundamental premise of the law. Those are the words of the Bar Association. I quote again:

The Bar Association opposes the wholesale abrogation of this fundamental principle without a truly demonstrated need for change.

In the Attorney-General's presentation speech he says: "The Bill is not about tipping the scales against the accused, it is about achieving a balance which our community can fairly say is just."

The Bar Association went on to say:

There is no instance referred to which has been the subject of informed debate where it has been said-

this is the crux of what those on this side, in particular, have been saying tonight-

that an accused person in this Territory has been acquitted because a trial judge has made an error of law. There has been no attempt to demonstrate that the change is needed. The fact that there is a similar provision, although in what terms is not made clear, in Tasmania or Western Australia, or for that matter Bermuda does not demonstrate a need for such provision in the ACT.

Furthermore it is accurate to say that the proposed alteration to fundamental principle is far reaching in its terms. Contrary to the Attorney-General's speech the Bill does not confine the review of an acquittal to one which "arises from" an error by the trial judge ...

The Bar Association concluded, and we will not disagree with what it says as it is so wise and so simplistic:

If after appropriate informed consideration of the evidence in the ACT it can be demonstrated that guilty persons are being acquitted at trial by reason of errors of law by judges of the Territory, then it might be that some form of review provision is appropriate.

That stage has not been reached. I conclude: why are we doing this? There is absolutely no justification. The Bar Association says that it does not know of a single case in which a person has been acquitted as a result of an error by a trial judge, yet here we are debating the deletion, the trashing, the removal, of a fundamental premise of the law, in the words of the Bar Association. I am just astounded at the equanimity with which we do so in this place.

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