Page 3535 - Week 09 - Thursday, 21 August 2008
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We have had a number of appeals, and I remember one quite clearly in the Supreme Court. The Chief Justice—he was not the Chief Justice then—let someone off because the police warrant did not have its I’s dotted and T’s crossed. The defendant shot a police officer and almost killed him. The charge of manslaughter, or whatever it was, was dismissed because of the warrant.
MR SPEAKER: Mr Stefaniak, I draw your attention to standing order 54 and ask you not to reflect on judicial officers.
MR STEFANIAK: I am sorry about that. There have been a couple of strange decisions in the courts and reference appeals have probably assisted in terms of ensuring that they do not occur again. It is not a bad idea to extend that to the Magistrates Court.
Perhaps it is a shame that the attorney did not go further. Several months ago he indicated that he was mindful of amending legislation to ensure that the Crown actually have a right of appeal from the Supreme Court to the Court of Appeal when a judge gets it wrong—for example, misdirects a jury or goes off on a tangent and makes an error of law which ensures an acquittal.
At present, if there is an acquittal, that is it; the prosecution cannot bring another case. If the attorney is going down that path, it is a pity that the party did not go down that path in 2000-01 when I, as Attorney-General, introduced that suite of amendments to the criminal law. But it is better late than never.
I am pleased that the attorney has flagged that. I think it is a bit of a shame that, rather than just introducing the reference appeal, which is a step in the right direction, he did not go further and bring us into line again with other states where the Crown pretty much has the same right as the defendant who does not agree with a decision in a superior court to appeal to the Court of Appeal.
The former Director of Public Prosecutions—now Justice Refshauge—said in an estimates hearing several years ago that there are at least two cases a year in the ACT where, in the interests of justice, the right to appeal to a superior court, the Court of Appeal, would be very handy and if they were successful the matter would then be reheard, be it a fresh trial or otherwise in the Supreme Court.
So whilst we commend the attorney for the reference appeal, that is small beer, I think, compared with what he has flagged in giving that full right of appeal to the Court of Appeal to the Crown when the court gets it wrong, or at least when the Crown says the court gets it wrong. That right has been called for by the standing committees of the DPP a number of times. It is in force in most other jurisdictions and it has been flagged here. It would have been an ideal situation for it to be put in here.
But for the late entry of this bill we might have been able to formulate an amendment ourselves. It is not all that difficult. It is a shame that the opportunity has been missed. Should you be the government after the next election, you will pick that up. Should we be the government after the next election, we will pick that up. We have tried that before.
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