Page 2512 - Week 06 - Thursday, 23 June 2011
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making their decision. Even when the other checks have operated and there still has been potentially prejudicial evidence led or reported on, the judge can direct them not to take it into account.
On this point, I am aware of evidence that directions given to jurors at the start of proceedings are more effective than waiting to the conclusion of the trial. I will be approaching the government for information on what the current legislation provides for and how it is being exercised. It is a relatively technical point but an important one. For directions to be as effective as possible, they need to be made as early as possible in the trial.
Fifthly, and finally, the capacity for review and appeal is built into our legal system. It is inherent to our system that we accept the proper role for appeals to higher courts when there are procedural mistakes made or faulty decisions reached. Our legal system accepts this as a reality and has put in place an appeals system, starting with each jurisdiction’s Criminal Court of Appeal and ending, in the less common case, in the High Court.
Mistakes will be made by juries. However, judge-alone trials also have the potential for mistakes to be made. The important point is that we always hope these will be rare, but we have a system of appeals that can deal with those mistakes when they are made. An appeal should be guarded against and only an option of last resort, given the additional financial and emotion costs. But it is proper to point out that this appeal mechanism exists as another of the checks and balances and another of the safety valves that are built into our legal system so that we ensure we get the most just outcomes we possibly can in the cases that make it through our court system.
Relying on these five checks and balances, we are satisfied that the risk of having a prejudiced jury is addressed. It is on this basis that we support the bill today. We have made the decision in light of all the available evidence and believe the changes are necessary and responsible.
As I referred to earlier, this decision we have made will not be met with agreement from all in the legal profession. But it is fair to say that there is a lack of a unified view from the legal profession which I think demonstrates the testing nature of reform in the area of juries and with justice-related reforms more generally. I think that is something that Mrs Dunne would attest to as well. In so many of the matters that come through to us in the portfolio dealing with Attorney-General matters, it is very clear that very few of these matters are black and white matters.
To illustrate this point, I would like to refer to two submissions made by the two universities in Canberra, the ANU and the University of Canberra. Both were asked by the scrutiny of bills committee if they would like to make comment on the bill and both took up the offer.
While I cannot speak on behalf of the committee, I was surprised to read the two responses because they reach totally different conclusions. In summary, the ANU supported the bill whereas the University of Canberra did not support it. I would like to quote from two important sections of each submission.
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