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Legislative Assembly for the ACT: 2002 Week 1 Hansard (12 December) . . Page.. 118 ..
MR STEFANIAK (continuing):
The report of the committee goes on to say:
The powerful considerations which made it unfair and unjust that a man should be prosecuted twice for the same offence seem to lose some of their force when an appeal is sought to be equated with a second prosecution. A second prosecution for the same offence immediately raises the spectre of persecution. Although the pursuit of a Crown appeal might be carried to the point of persecution, the risk of that occurrence is more remote, if only because the accused would be protected by the courts against an appeal which was instituted mala fides or amounted to an abuse of process and, as already noted, the courts would not go behind a jury's verdict. Moreover, the Crown has a limited interest in securing a review of a trial, more particularly if it appears that the trial judge has made an erroneous ruling on a question of law or departed from correct procedures.
That is exactly what this is about-where the trial judge has made an erroneous ruling on a question of law or departed from correct procedures. Mr Speaker, the community has a right to be protected. Our justice system should be one that is respected in the community. Obviously, if glaring problems occur and an accused is wrongfully convicted or an accused is wrongly acquitted through errors of law, appeals should apply. Of course, in the case of an accused being wrongfully convicted, they apply well and truly in our justice system, and rightly so. This bill just seeks to strike some balance and act upon the unanimous decisions of the DPPs, together with the matters discussed by the Standing Committee of Attorneys-General. As I said, other states already have done so.
In terms of a test, the learned dissertation on page 16 of this report of the scrutiny of bills committee goes on to cite a paper on double jeopardy by the learned author ML Friedland, saying:
Friedland also raises an issue that, under section 37R, would be left to the Court of Appeal without guidance from the legislature. This is the issue of what standard should be applied by the court in granting a new trial. Friedland's answer is:
[T]he test proposed by Dixon CJ in an Australian case adopts the most desirable approach: a new trial should not be granted unless the error was "on the whole case a probable explanation of the verdict of the jury" (the quote is from Vallance v The Queen (1961) 35 ALJR 182 at 185).
Mr Speaker, there have been a number of instances where this idea of the right of appeal against acquittal has cropped up, most notably the Elliott case in Victoria, which caused great angst to the DPP down there, who had some very harsh words to say in relation to what was called a disastrous ruling brought down by a judge there in terms of wrongful acquittal.
In terms of the ACT, I am advised that there are not many cases where this occurs and there would be an appeal. I am advised that there are probably two or three occasions each year where an order to review should be contemplated and the Court of Appeal could be involved and look at whether the order to review should proceed. A number of cases spring to mind, Mr Speaker. Obviously, this is a serious matter and it would need to be a serious case. I can recall comments in relation to some errors being made and a reference appeal being made in relation to some rulings by a trial judge in the ACT in
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