Page 3512 - Week 09 - Thursday, 21 August 2008
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offences and also to capture some of the tough on crime vote at the next election. Indeed, Mr Stefaniak’s endorsement of the bill reinforces that impression.
The Attorney-General has been active in the Canberra Times defending his recent legislation. Unfortunately, he does not present a balanced argument, and the self-serving spin in those articles overwhelms the merit that many of his arguments undeniably hold. In last week’s Canberra Times the Attorney-General said that the historical purpose of the committal process was to determine the question of whether there was a prima facie case against the accused and to provide full disclosure of the crown case. This is not just the historical purpose of the committal process. This remains the purpose of the committal hearing, and these amendments jeopardise that purpose by removing the court’s discretion to compel a complainant to attend a committal hearing when it considers that a miscarriage of justice could occur if they do not appear.
It is another sign of this government’s arrogance that it thinks its capacity to decide what will serve the interests of justice in the circumstances of any particular case is greater than or preferable to the judiciary’s. These amendments will weaken judicial independence by removing judicial discretion. They weaken a power of the court that has traditionally been seen as one of the powers that define the constitutional separation of powers between the executive, legislative and judicial arms of government.
These amendments could have proceeded on the basis of retaining the court’s discretion to decide whether to override the default position spelt out in the act, but the government has chosen not to trust the court’s judgement by removing those discretionary powers. Let nobody doubt that time spent by an innocent person on remand is every bit as onerous—in fact, far more onerous—than time spent in jail by a guilty person.
I want to talk briefly about the minister’s response to the scrutiny of bills committee report. The reasoning in the government’s response to the committee is turgid and addresses arcane points of law. It is not the kind of material that can be adequately assessed within a couple of hours. I do have a few concerns with the Attorney-General’s response, but without recourse to advice by senior legal counsel I am not in a position to pursue those concerns any further.
For instance, I have a concern with the Attorney’s description of the rule in Browne v Dunn which is taken from a 1998 textbook and possibly does not accurately reflect the standing that this rule has in current Australian law. It seems to imply that a failure of an unrepresented defendant to cross-examine a witness on contradictory evidence would automatically amount to a breach of the rule. In the case of R v Birks, Justice Gleeson stated that ordinarily, it would be inappropriate to expect an unrepresented accused to be bound by the rule.
In the later case of MWJ v R, the High Court found that there was no obligation on defence counsel to question the complainant on an inconsistency or to have the complainant recalled for that purpose. It found that in some circumstances a failure to cross-examine may not constitute a breach of the rule; the onus of proof remains with the prosecution.
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