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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2824 ..

MR STEFANIAK (continuing):

Any person charged with an offence has the right, if finally acquitted of the offence, not to be tried for it again, and if finally found guilty and punished for the offence, not to be tried or punished for it again.

As can be seen, the language of s.11(h) of the Canadian Charter is very close to that of Article 14(7) and is clearly intended to reflect the same common law principle against double jeopardy.

The Canadian Supreme Court ruled in R v Morgantaler [1988] 1 SCR 30 (and upheld this ruling in R v Smith 14 CRR (2d)(331) in relation to s.11(h) of the Charter of Rights that the words "if finally acquitted" and "if finally found guilty" must be construed to mean after the appellate procedures have been completed, otherwise there is no point or meaning in the word "finally".

If one accepts, as many commentators appear to do, including the Assembly's Scrutiny of Bills Committee that Article 14(7) reflects the common law position applying in Australia, the decision in Morgantaler strongly suggests that the proposed section 37R would not offend against Article 14(7), on the basis that the defendant would not have been "finally convicted or acquitted in accordance with the law and penal procedure" of the ACT.

I went on to say that, whilst decisions of the Supreme Court of Canada are not binding in Australia, they have been applied and cited by the High Court of Australia on previous occasions.

Mr Speaker, someone mentioned the case of John Elliott. The trial judge there took it on his own bat to acquit John Elliott. I am glad that I am saying that in this place, because John Elliott does things if people say things outside. The trial judge acquitted John Elliott and the trial judge was absolutely slammed by the Victorian Full Court of Appeal, all three judges. Again that was just by way of a reference appeal, which is all we have at present. That just goes to show what can happen if a judge has a bad day or has some bee in his or her bonnet and goes off on a tangent-and, let us face it, everyone is human. There is no redress for a judge incorrectly taking a matter away from the jury, misdirecting a jury or making some fundamental error of law and someone who should normally be convicted walking. That is just as bad as some person being found guilty who is not guilty.

I do think it is a very important point. It is an important addition to our criminal system. I think it would lead to greater confidence. True, there have not been many occasions on which this provision has been needed. That is great. That is a big tick in the box for our legal system. But there certainly has been a number of occasions where review appeals have been made and this provision would be highly appropriate, because nothing can come of a review appeal. The guilty person cannot be brought back.

It is not double jeopardy if, for example, a judge takes a case away from a jury. The matter really has not been completed. It is not like a person is then tried twice. An error has occurred. Obviously, if the court says that there was a gross error there that should not have occurred, the matter can be retried and retried properly to a conclusion. This provision in no way affects the rights of a jury to find on fact, properly directed, and decide one way or the other. That is sacrosanct. But it does affect a situation where a judge goes off on a tangent and makes an error of law which

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