Page 2522 - Week 06 - Thursday, 23 June 2011
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For instance, in Western Australia less than three per cent of trials are judge-alone trials using this system. Actually, I think it is 2.4 per cent from memory on the figures provided by the Attorney-General. It was interesting, of course, that the Attorney-General said that they have done something like this in New South Wales and that Mr Temby, who is a very experienced lawyer, is concerned about this. But actually what is being proposed here tonight is not what happens in New South Wales. There are differences.
The Canberra Liberals’ amendments would allow either the accused or the prosecutor to seek an election for a judge-alone trial and allow the Supreme Court to make an order for a judge-alone trial if, as I have said before, it is considered to be in the interests of justice. They have to take into consideration things like the length and the complexity of the trial being burdensome for a jury or the likelihood of a jury being tampered with.
I think that Mr Seselja made a very good case with the example that he gave. We have had situations in the ACT where there have been murder cases which have involved members of organised crime gangs. In the particular case he mentioned, it was bikie gangs. It could reasonably arise that in those circumstances, with the involvement of organised crime, juries could be tampered with. There could be intimidation. You only have to intimidate one or two people and you do not get a verdict.
It could be reasonable in particular cases for, say, the prosecution to say to a judge, “I do not think that it is reasonable to subject a jury to the dangers of that sort of intimidation and risk a mistrial.” All you have to do is intimidate one or two people. You do not have to go after everybody. These are serious considerations, but at the same time there is plenty of scope for the court to refuse this order because the amendment quite clearly says that the court may refuse if it considers the trial will involve factual issues that require the application of objective community standards on a range of issues.
I do want to draw the attention of the Assembly again to the views of the human rights commissioner, who expressed views about the government’s proposal this week. The human rights commissioner said that she was concerned about the propensity for there to be a permanent stay in proceedings under jury trials in particular. She said in relation to this:
The bill may be arbitrary in nature by requiring that a jury trial must proceed for all offences involving death or sexual assault, even where the Director of Public Prosecutions would agree with a judge alone trial. This has the potential to needlessly delay bringing criminal matters to trial, at a time when the Supreme Court is suffering well-documented waiting lists already. Delay in criminal proceedings, particularly in circumstances where the accused is remanded in custody, engages the right to a fair trial, as well as liberty and security of the person (s.18) and other rights in criminal proceedings (s.22).
The human rights commissioner went on to say:
Judge-alone and jury trials are not equally susceptible to permanent stays of proceedings due to adverse media attention. It appears to be generally accepted that judge-alone trials are less susceptible to adverse media comment unfairly
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