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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 565 ..

defendant brought it all on themselves, as in McEwan v Sealy, they are not going to get any costs because they have got off on a technicality. Quite clearly their behaviour has been so reprehensible that the circumstances negate the fact that because of some technicality they may have escaped a conviction. With this, is that going to happen? Not the way I read this. This could well be interpreted to ensure that anyone who has been unlawfully arrested will get compensation. That could be another problem.

There are some further problems in relation to clause 22 which the scrutiny of bills committee reported on. On page 12 the scrutiny report states:

It is clear that the exercise by person A of her or his rights can impinge on the rights of person B. The provisions of clause 22 of the bill state that several rights in criminal proceedings point to the problem. This clause states several rights of the accused who is charged with a criminal offence. There is undoubtedly a public interest in the accused having a fair trial. It has also been judicially recognised that the public interest also embraces the interests of the public as a whole that the guilty are convicted. On some trials such as those where the accused is charged with sexual assault it is also allowed that the complainant has an interest which may be fairly seen as a personal right in how the trial is conducted. Much could be said about the detail of clause 22 from the perspective of the rights of the public and of those who undoubtedly are, or who claim to be, victims of the crime with which the accused is charged. The queries posed below are simply indicative of the general issue.

• Does the right of the accused to examine prosecution witnesses—paragraph 22 (2) (g)—afford to an unrepresented accused an unrestricted right to cross-examine a prosecution witness, say where the witness is the complainant of a sexual offence? See how this right is buttressed by the right in paragraph 22 (2) (d) for the accused to defend himself or herself personally. More generally, what effect does this right have on the rape shield laws and those laws that govern how the complainant of a sexual offence may be examined in the trial. Does the right of the accused to have legal assistance provided to him or her if the interests of justice require that the assistance be provided and to have the legal assistance provided without payment if he or she cannot afford to pay for the assistance—paragraph 22 (2) (f)—mean that the trial must be stopped if someone does not provide that legal assistance?

• Does the right of the accused not to be compelled to testify against himself or herself or to confess guilt mean that on the trial itself the accused may give evidence and then refuse, on cross-examination, to answer any questions that would tend to implicate her or him in the commission of the offence charged?

Clause 24, the right not to be tried or punished more than once, is also a problem. It reads:

No-one may be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with law.

People may well be aware of significant moves nationally to ensure that a criminal who has been acquitted for a serious offence—for example, murder—can now be brought back before a court and tried again if significant evidence indicating his guilt comes to light at a later stage. That is important in relation to advances in DNA testing. Just as persons who have been wrongfully convicted can now use DNA evidence to secure their

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