Page 2505 - Week 06 - Thursday, 23 June 2011
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Other jurisdictions, such as Western Australia, have made the question of judge-alone trials a matter for the court on application by either of the parties and subject to certain guidelines encapsulated in the law. This ensures that the purpose of judge-alone trials is not abused or misused for purposes other than as intended.
Has Mr Corbell considered these options? I do not think that he did, although when his officials were pressed by me, he did eventually write a letter that gave the indication that somebody may have considered some of these options. But the main point that needs to be made is that the proposal brought forward by the attorney today is not the appropriate one.
Mr Corbell has spent a lot of time talking about the number of judge-alone trials that there are in the ACT, and it is quite clear that public opinion is of the view that there are too many judge-alone trials in the ACT. There is furious agreement on this part. I need to make this point very clearly, because I do not want the Attorney-General to stand up here and verbal the position of the ACT Liberals.
The problem with this piece of legislation is that Mr Corbell has cherry-picked a number of offences that he describes as serious, and completely and quite arbitrarily removed the option of judge-alone trials altogether for these offences. So it is too bad if there is adverse pre-trial publicity. It is too bad if there are highly technical legal arguments that a jury might not be able to consider.
Indeed, the scrutiny of bills committee noted these observations by the Chief Justice, Mr Higgins:
… the chosen categories of offences (death and sexual offences) seem somewhat random and target precisely the kind of issues which were considered to justify the option of a judge-alone trial in the first place. Namely, pre-trial publicity and community prejudice militating against an impartial and fair trial. There are many offences that rely upon community standards, for example, dishonesty, yet none of those categories are singled out for differential treatment
Mr Corbell calls the exclusion offences “the most serious allegations that can be made against a member of our society”. I contend that that is an entirely arbitrary list put together by this minister. How are some of those offences more serious than, say, grievous bodily harm, terrorism or aggravated burglary? All of those offences have higher penalties than most of the sex offences which are included in Mr Corbell’s list. They are not, and this is typical of the half-baked approach that this Labor government and this Attorney-General take to law-making in this area.
Worse, Mr Corbell advances little justification for his approach versus making all indictable offences subject to jury trial. Either you do the lot or you do none, but you could find a better way of managing it. My amendments, which I will move later in the debate, do just that.
What of the human rights considerations? This is another failure of the bill. The government has relied on the judgement of Justice Besanko in R v Fearnside, in which he stated:
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