Page 2523 - Week 06 - Thursday, 23 June 2011
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prejudicing the accused. This would seem particularly so in the ACT, where the Supreme Court includes visiting judges from the Federal Court. That is not to say that juries are automatically unfairly prejudiced by media reports.
Then she goes on to say:
Stevens CJ of the New South Wales Court of Criminal Appeal has championed the ability of juries to disregard matters reported in the media, a position which has been strongly supported by judicial officers in Australia …
But the commissioner recommends, on balance, that a less restrictive approach be taken to allow judge alone trials to proceed, rather than the blanket approach. (Second speaking period taken.)
The commissioner concluded by recommending that a less restrictive approach be taken to allow judge-alone trials to proceed, rather than the blanket approach in the bill. She said:
I am not opposed granting discretion to courts as is required in other jurisdictions, such as NSW, WA and Queensland, based on ‘the interests of justice’, with non-exhaustive factors such as significant pre-trial publicity, the complexity or length of a trial factual issues requiring the application of objective community standards etc.
So essentially the human rights commissioner has come down in favour of an approach like that in New South Wales, Western Australia or Queensland using almost the same language, unprompted, as is used in the Canberra Liberals’ amendments. The substantial amendment, being amendment No 2, sets out all of these things which I have spoken on at length. As I have said, amendments Nos 1 through to 7 are consequential upon that amendment.
I commend this approach to the house because it is a better approach than that purported by the government. It has wide-scale support from the legal fraternity. In my consultations and discussions across the community with practitioners on both sides of the bar table, I have had wide-scale support. It is interesting that although the Attorney said that there was a diversity of views put forward, if the Attorney had bothered to sit down and talk with these people they would say, “Yes, our preferred position is X, but if we cannot have X, we would think about Y or Z.” If the Attorney was actually serious and wanting to come to a community consensus, he could have actually heard a very much different story from the story that he says that he heard, which was a cacophony of disunity.
There is a hollow level of unity on this matter. First and foremost, there is furious agreement about the primacy of jury trials. No-one disputes that. The community wants to see the restoring of jury trials as the rule, not the exception. The community is not satisfied with more than half of our indictable offences being tried by judge alone. But at the same time, there are exceptional circumstances—exceptional circumstances. We want to see a change in the ACT so that only a small proportion of offences are tried by judge alone, but we need to have that propensity, that capacity.
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