Page 1247 - Week 04 - Thursday, 26 March 2015
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disclose a defence is the result merely of the absence in ordinary circumstances of any statutory requirement that defences be revealed … The possibility of disclosure of a defence is, accordingly, not a matter in respect of which a witness needs to be protected, except perhaps in the most exceptional circumstances.
In 1995 the West Australian Supreme Court considered whether a requirement that the defendant disclose its defence violated the privilege. The court held that it did not. In that case it ruled:
… it should be borne in mind that a requirement that an accused be called upon to disclose his or her defence to a criminal charge prior to the hearing of it does not necessarily infringe the right to silence or the privilege against self-incrimination.
We can see from recent and historical judgements that many of the issues raised, either as a matter of law by legal societies or the rights expressed in the Human Rights Act, are not necessarily impinged by these provisions.
It is also worth noting that the proposed changes only affect expert advice, and that is a very important point. This is only affecting expert advice, not the entire defence, which is less than occurs in neighbouring jurisdictions in Australia, particularly New South Wales.
Internationally, defence disclosure requirements go much further than those in this bill. The Supreme Court of the United States, when faced with this issue said:
We conclude, however, as has apparently every other court that has considered the issue, that the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defence and disclose his alibi witnesses.
In the United Kingdom the accused is required to provide a written case statement to the court outlining the entire nature of the defence case. All around the country and all around the world these changes have been enacted and accepted. I repeat: I accept the positions put forward by the legal profession, but I also note that the amendment by Mr Corbell—which was circulated in accordance with the standing orders by, I think, about two minutes—addresses at least some of these concerns, particularly those raised by the Bar Association.
The question we faced on the opposition benches was balancing the pure principles and the needs of modern justice. We obviously weighed up the advice provided to us by the directorate, the prosecutors, the victims of crime and the Legal Aid Commission, who are all in favour. We also looked at the relevant law in other jurisdictions and how that applied and looked overseas at how the law was being applied, and we looked at recent case law when it came to these matters as well. On balance, we made the decision, principally and foremost in the interests of justice, that we would support these provisions. I note there are arguments about court efficiency, and I welcome that, but I make it very clear that that is not the principle upon which the opposition came to its conclusion.
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