Page 1609 - Week 04 - Thursday, 7 April 2011
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Supreme Court and free it up to work through some of its backlog. This is a goal which the Greens support. We do believe, however, that the government have overreached in how they have gone about the reform. We believe they have gone too far and as a result are taking away the long-held opportunity to a jury trial. This is a fundamental legal principle and one which the Greens are not prepared to give up as lightly as the government appear to have done.
What the government propose is to redraw the threshold between what is a summary offence and what is an indictable offence. Currently, all crimes carrying a penalty of up to two years or less are summary matters, and everything above that is an indictable offence. This largely reflects the status quo around Australia. Six out of nine Australian jurisdictions set the threshold at two years, two jurisdictions set it at three years and one sets it at 12 months. So summary offences around Australia are those that carry one, two or three years imprisonment. In the scheme of things in the criminal law, these are the low end crimes and the ones that occur with a relatively high frequency.
Trials for summary offences are carried out in the Magistrates Court around Australia where they are dealt with expertly and efficiently. Due to the frequency at which these cases are brought through the courts, the law is well settled for each. For example, any defence lawyer worth their salt will be able to cite from memory the elements of the crime of common assault, likely sentences to apply for a given set of facts and any relevant well-settled case law.
The government’s bill seeks to redraw the line at five years, putting the ACT significantly out of step with the rest of Australia. In redrawing the line in this way, more serious cases with larger and more severe sentences would be diverted to the Magistrates Court where they would be tried without access to a jury.
Crimes where the defendant is open to being sent to prison for five years are of a different character, we believe, to the summary offences. They are more complex, the facts required to be proven are more detailed, and there is more case law to be taken into account. For these reasons, we believe that these more serious offences should have access to a jury trial. This is a fundamental part of the legal system that the government would seek to have us remove.
I would like to reflect on two quotes that encapsulate the importance of a jury trial. The first is from the scrutiny of bills committee report from 10 February this year. It says:
It is clear that a right to trial by jury in any serious criminal matter is deeply rooted in the Anglo-Australian legal and political tradition.
And later when quoting the 1985 High Court case of Kingswell it says:
… It is, however, clear enough that the right to trial by jury in criminal matters was, by the fourteenth century, seen in England as an “ancient” right. In the centuries that followed, there was consistent reiteration, by those who developed, pronounced, recorded and systematized the common law of England, of the fundamental importance of trial by jury to the liberty of the subject under the rule of law …
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