Page 1253 - Week 04 - Thursday, 26 March 2015
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The only material that supports the argument is found in the comments of Chief Justice Mason in Hamilton v Oades from 1989. At paragraph 24 of his judgement, his Honour said:
The so-called right not to disclose a defence is the result merely of the absence in ordinary circumstances of any statutory requirement that defences be revealed.
Justice Toohey agreed with this position. However, Justices Deane and Gaudron, in the same case, at paragraph 9 of their joint judgement, refer to the unfairness of the disclosure of a defence and discovery of evidence from which “a person charged with a criminal offence is usually entitled to be protected”. Justice Dawson, at paragraph 3, broadly agreed with this position and held that ordinarily a defendant should not be compelled to disclose their defence. His Honour also referred to the decision of Chief Justice Gibbs in Hammond and the commonwealth in 1982, at page 198, where his Honour the Chief Justice referred to the prejudice that arose for a defendant from disclosing a defence, and the real risk to the administration of justice that such a disclosure would create.
What the High Court cases, including more recent cases, such as Lee and New South Wales Crime Commission, illustrate is that, whilst there is no doubt that the legislature can impose limitations such as these, the implications from doing so are very serious and have real implications for the integrity of the justice system.
Specifically on the amendment moved by the attorney now, I acknowledge that it is an improvement and it makes the changes better than they otherwise would be, but I do not believe it addresses the underlying issues I have outlined. It offers a limited protection but it does not ameliorate the potential disadvantage that accused persons could be placed at as a result of the clause.
Chief Justice French, in the Lee case, emphasised the importance of the presumption of innocence, the privilege against self-incrimination and the right to silence, and made the apt observation, in paragraph 2 of his judgement that “executive governments have found aspects of the accusatorial system an inconvenience in the investigation of criminal conduct”.
This is obviously a very complex matter. I have listened to the discussion closely today and I have discussed this with the attorney. I welcome those discussions and the advice that he has given back to me. I have also listened very carefully to the stakeholders in this discussion. I think we see the complexity of this matter because, as the attorney has indicated, the Director of Public Prosecutions and the Victims of Crime Commissioner have supported this change, as has the Legal Aid Commission. I am surprised by the position of the Legal Aid Commission, because I think this is disadvantageous to their clients and the people they represent in these matters. I have also discussed this matter with the bar, who have expressed their serious reservations to me about this clause.
On balance, given the weight of things and the potential consequences for an accused person, I have seen fit to fall on the side of having reservations about this matter. For the reasons that I have outlined today, I cannot support clause 25 as it is proposed in the bill.
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