Page 1252 - Week 04 - Thursday, 26 March 2015
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
The Greens do not support clause 25 of the bill and have real reservations about the potential impact of it with regard to the right to a fair trial. It potentially undermines, arguably, the most fundamental principle of our criminal justice system—that it is for the prosecution to prove the case against the accused. On the face of it, there is an attraction to the idea that all the evidence is presented to both sides and then the merits argued before a court. However, that superficial attraction belies the potential disadvantage and prejudice that may be caused from the clause.
The effect of the clause is that it could require accused persons to assist the prosecution in the preparation of the case against them. The new section requires an accused person to give notice to the prosecution of the evidence that they intend to contest—meaning, of course, that the prosecution then know what they need to pay particular attention to in their case. It also requires the defence to give notice of the evidence they intend to lead, again putting the prosecution on notice in relation to the matters they need to focus on in the case they put against the accused. Currently, the defence are not required to give notice of these matters and are free to present their evidence as best they see fit at the trial, without having given the prosecution the opportunity to adjust their case accordingly. The reality is that these changes necessarily operate to the disadvantage of defendants and are at odds with the fundamental premise of our criminal justice system.
The Attorney-General has put the argument that the clause simply brings forward the disclosure evidence and that it will assist in delivering timely trials. I think that argument is worth closer examination. Firstly, depending on how trials proceed and the strength of the evidence that is presented by the prosecution, the defence case may adapt and ultimately choose not to lead evidence because the prosecution’s case has not been as strong as they had anticipated. Under the new rules, where an accused is required to give notice of evidence the prosecution will be aware of potential weaknesses before the trial and given the opportunity to adjust their case accordingly.
Secondly, I have not seen evidence that the current system is, in fact, leading to unreasonable delays. If there were such evidence, it would provide an improved case for the necessity of this provision. If there is, indeed, a problem with the progression of trials with regard to this particular matter, the Greens are very open to looking at that issue, and at issues more generally, as we have done on a number of other occasions, in considering ways to address them. Changes which could be to the detriment of an accused person, some of whom will ultimately be found not guilty of the offence they have been charged with, and all of whom have the right to be presumed innocent, are of real concern.
As has been touched on today, the scrutiny of bills committee raised a number of concerns about the bill to which the attorney provided comments in response. Our analysis of the Victorian Court of Appeal case cited in the response is that it is about the content of cases stated for the Court of Appeal and not the issue of pre-trial disclosure, seemingly doing nothing to further the argument in favour of pre-trial disclosures.
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video