Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .

Legislative Assembly for the ACT: 2004 Week 01 Hansard (Tuesday, 10 February 2004) . . Page.. 149 ..

bills committee is serviced by Peter Bayne, who is an excellent lawyer and who, like his predecessors, is able to go through an act very quickly and come up with very learned comments in relation to it. In scrutiny report No 41 of 9 December, Peter Bayne goes into a learned dissertation in relation to these particular problems.

It is quite a lengthy report. He starts talking about this matter on page 14 and effectively finishes on page 19, but he has some considerable concerns. He quotes extensively from some High Court cases, including judgments by Justice McHugh. It would be simpler if I read out some of what was said there. He makes some initial comments and talks about the rights issues. He then outlines the law as it stands, under “trial for murder—provocation” in section 13, and the proposed changes. He then goes on to say on page 16:

It is important to appreciate just what might be the effect of this reform.

The amendment does not address paragraph 13 (2) (a). The jury must find that “the act or omission [of the accused killing the victim] was the result of the accused’s loss of self-control induced by any conduct of the deceased”.

He goes on to say, “The effect of the amendment on the application of paragraph 13 (2) (b) is also not easy to grasp.” He states that it might well be difficult and, when that is added to the sheer complexity of the test in paragraph 13 (2) (b), it may seem that the jury will not easily comprehend what it is to do.

He then extensively quotes Justice McHugh in relation to these issues. He has the view that this reform is limiting, and he talks about the limitations of the reform that have to be noted. He says that the scope of qualification in paragraph 13 (2A) (b) may be wider than the explanatory statement indicates, and indicates that there may be problems there.

He then deals with issues for the Assembly on page 18, so I think it is probably appropriate that I read those. He states:

To return now to the right issues as posed above, the first question for the Assembly is whether this amendment, when read with the existing law, produces the result that the law is expressed with that degree of clarity that makes its operation fair in the sense that it can be applied, both by the trial judge and the jury, in a sensible way.

The second question is whether the principle of equality before the law has been breached.

This is arguably the case, at least in relation to that class of accused who rely on the deceased having made a sexual advance, and where that fact is a component of the facts that justify the accused claiming that they were as a matter of fact provoked to kill. That is,

• there will be cases where an accused can adduce evidence of a sexual advance because there is just enough evidence that the advance was not non-violent that the trial judge must let the evidence of the sexual advance go to the jury, and/or

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .