Page 3245 - Week 11 - Tuesday, 17 September 2013
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This concern is more acute because often the issue of cooperation or assistance involves a decision of whether to assert the defendant’s right to silence, from which in principle, no adverse inference should ever be drawn.
The types of decisions that will yield a discount are frequently going to be matters of forensic judgement by lawyers. There seems some difficulty in then giving a discount or not based on the quality of legal advice.
Decisions about what evidence is ‘in issue’ and whether to hold the prosecution to strict proof on continuity, or challenge tendency evidence, or an ID etc, are frequently matters upon which clients have little choice but to trust their lawyer’s judgement.
It may become a mark or grading of the lawyer rather than any action or inaction of an accused. This is an inappropriate basis upon which to determine sentence which is solely visited upon the accused.
The Law Society conclude their remarks by saying:
On balance it is undesirable that any step be taken which waters down the fundamental burden of proof that rests with the prosecution or impinges on the right to silence. These safeguards exist for good reason.
The Law Society’s concerns are well founded and serve as a warning that the intent of this bill—fair and reasonable as it may appear on the surface—may be overtaken by unintended consequences. It would be unfortunate indeed if an accused were to find themselves painted into a corner having done the prosecution’s work for them. So we will watch how this new law plays out in the courts.
I note that the government will be presenting two amendments to the bill during the detail stage debate. These amendments provide clarification that assistance given by an accused during the pre-trial process, excluding a guilty plea or assistance to law enforcement officers, will count as matters for the court to consider in determining whether a reduced sentence is warranted. We will support those amendments because they are fundamental to the intent of the bill.
In summary, we will support this bill, but we will continue to monitor the effect of this bill in the courts, heeding the warning that has been provided by the Law Society.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services, Minister for Workplace Safety and Industrial Relations and Minister for the Environment and Sustainable Development) (11.56), in reply: I thank members for their support of this bill today, which contains important amendments to the Crimes (Sentencing) Act 2005 to create a further incentive for defendants and their representatives to assist in the efficient administration of justice.
In order to assist with the interpretation and clarity of the bill, I will be moving during the detail stage a number of minor government amendments. The amendments will permit a reduced sentence to be imposed if an offender facilitates the administration of justice. This means that if the offender cooperates by ensuring trials are focused as
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