Page 2511 - Week 06 - Thursday, 23 June 2011
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
There are five important checks and balances currently in place that the Greens believe guard against this risk. I think, given the debate, it is important to spend a little time addressing each of these.
Firstly, the ACT has a system of paper hand-up committals, where untested pre-trial evidence is provided to the court on the papers and is not discussed verbally in court. What this means is that the media do not have access to that untested evidence and are unable to report on it. This is an important way in which potential jurors are protected. Put simply, they cannot be biased by pre-trial evidence if it is not reported on and they do not hear it.
Secondly, there is a right for the court to grant a stay of proceedings during the pre-trial phase if a dispassionate and unbiased jury cannot be found. The proceedings can be stayed until a point in the future when a jury can be empanelled. This is an inherent right all courts have that was confirmed in the High Court Case of Dietrich v Dietrich and is also described in rule 4750 of the ACT Supreme Court rules.
There are some important points to make about the stay of proceedings issue. Some in the legal profession have quantified the number of times a stay will be required. It has been suggested that it would be something in the order of one in every hundred trials; so it is a very rare occurrence indeed. The government audit recorded that between 2004 and 2008 there were 147 trials conducted in the ACT. So the stay on proceedings would have been required extremely rarely—perhaps twice in four years. It has been described as a very rare, very exceptional set of circumstances where a dispassionate jury is not able to be found. It is this rare situation that I believe Mrs Dunne’s amendments seek to address and we will come to this later. However, the point to be made now is that there is the existing power to stay.
The Law Society have come to a different conclusion in their submission where they fear that this bill will increase the number of stayed proceedings. This will only be the case if lawyers make that application when it is unwarranted. We hope they confine those applications to the one in a hundred or the rare situation, but currently the rules do not specifically describe the circumstances in which a stay may be granted. As the changes proposed today become operational, it may be that rule 4750 can be fleshed out, and that is something that we will watch closely.
It is also important to make comment on the stay issue in light of court delays. Clearly, we do not want many trials stayed as this will add to the delay that may be experienced. We understand that the stay is not for an indefinite period. Instead, it is for a specific time within which a jury is actively found for the case.
The third issue, and the third of the checks and balances which I would like to refer to, is that there is a process for selecting jurors where both the DPP and the defence team are able to veto potential jurors who they believe are prejudiced. This stops prejudiced jurors from sitting on the jury to start with and will resolve many of the issues before they become actual jurors.
The fourth check and balance I would like to discuss is that judges have the ability to give directions to juries about what evidence they can and cannot rely on when
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video