Second Reading

Resumed from 7 December 2017.

[Speeches and comments from various members]

HON ALISON XAMON (North Metropolitan) [11.19 am]: I rise as lead speaker on behalf of the Greens and I indicate that the Greens will support the Criminal Procedure Amendment (Trial by Judge Alone) Bill 2017. As members would be aware, we judge every bill on its merits. Whether they are likely to gain passage through the other place is not for us to be concerned with. It is simply what is presented to us. As such, I have quite a lot of comments to make about this bill. We recognise that it is a relatively simple bill and are of the view that some additional amendments could improve it further. Nevertheless, this bill is important and we are pleased that this issue has been brought to the attention of this chamber for deliberation. I think it is useful to go over what is in this piece of legislation. I have done the cross-jurisdictional analysis and looked at the differences in the way this provision exists in other states. It is instructive to compare how various states have chosen to implement these sorts of measures.

This bill will amend section 118 of the Criminal Procedure Act 2004, which is about when a trial can be heard by judge alone and without a jury. I think it is important to point out things that will not change as a result of this bill being passed. At the moment either the prosecutor or the accused may apply for an order for a trial by judge alone. Applications must be made before the identity of the trial judge is known to the parties and the order cannot be cancelled after the identity of the trial judge becomes known to the parties. That ensures the prevention of judge-shopping. The court can inform itself on such an application in whichever way it sees fit. If the accused does not consent, the order must not be made. If multiple charges are tried together, the order must relate to all of them and they need to be heard simultaneously. Similarly, if multiple accused are being tried together, the order must relate to all of them.

The act currently provides that if an application is made and the accused consents, subject to the aforementioned conditions if there are multiple charges or multiple accused, the court has the discretion to make the order if it considers that it is in the interests of justice to do so. For example, it can make the order if a trial is going to be long or complex and likely to be unreasonably burdensome to a jury, or if a juror is likely to be corrupted or threatened. The court may refuse the order if the trial will involve a factual issue related to objective community standards such as reasonableness, negligence, decency, obscenity and dangerousness. The bill will change this so that if an application is made and the accused consents, subject to the aforementioned conditions if there are multiple charges or multiple accused, the court will have to make the order unless it is satisfied that the order is not in the interests of justice. That judicial discretion will still remain.

I have a question that I would appreciate a response to in the reply to the second reading debate. I seek confirmation that the option we are contemplating will continue not to be available for commonwealth offences for which section 109 of the Constitution requires a jury trial. That is my understanding, but I seek confirmation of that.

Hon Michael Mischin: Unless the law has changed since, 10 years ago the High Court determined that the requirement for a jury under section 80 of the Australian Constitution involved a jury of 12 people, which got rid of the prospect of a majority verdict, which Western Australia has introduced in some cases. What we do here will not affect commonwealth cases. In fact, some of the most complicated cases are the Customs Act and drug importation ones. In those cases, unless I am much astray with what has happened, a unanimous verdict of 12 jurors is still needed and this option would not be available.

Hon ALISON XAMON: I thank the member. That was my understanding as well, but I seek clarification of whether that will be the case.

Hon Michael Mischin: Of course, I may be wrong.

Hon ALISON XAMON: It would be useful to have that clarification.

I want to go through some of the issues that are raised about these provisions. One concern that has been voiced already is the possible extra burden on judges. My office undertook some consultation on this bill. One comment that came back to me was “the judiciary are somewhat ambivalent as they will have to write judgements in any judge-alone case, which is more work for them.” However, the view was expressed to me that, “I can only imagine that it will be one or two judgements a year at most for each of the 30-odd judges on the court. The cost savings will be really significant with the flexibility the court will have without a jury.” This issue was also raised in the second reading speech. It was suggested that the time needed to write reasons will be more than saved by a judge not having to empanel, instruct or direct a jury; being able to intervene to seek clarification or to move counsel along when appropriate; and not having to sit through counsel addresses to the jury. The experience in the Australian Capital Territory was that in 56 per cent of cases between 2004 and 2008, the accused chose to have trial by judge alone rather than by jury. I suggest that if it turns out to be a problem, it can be resolved by funding or administratively via changes to scheduling and country court circuits. On the impact on appellate judges of judge-alone trials, there may be appeals about the content of the trial judge’s reasons, but none regarding the content of the trial judge’s directions to the jury. It would just change the nature of the appeal process. If the number of appeals increases because reasons for decision have been published, which will also increase transparency, that will be resolvable via funding for extra appeal judges. I point out to members that appeals that are properly made are not a bad thing. In fact, appeals are an important mechanism to ensure that we correct faults that arise during the trial process.

Another concern or criticism raised about a negative outcome of judge-alone trials is a possible increased acquittal rate. I like evidence-based approaches and, to be very clear, it is absolutely unconfirmed whether this is true.

A paper presented to the 2011 Australasian Institute of Judicial Administration conference by the then New South Wales senior public defender titled “Trials in NSW by Judge Alone: Recent Legislative Changes” said that figures for that year indicated that judge-alone trials seemed to be increasing the rate of acquittal by 12 to 14 per cent, but that a lack of statistics prevented any comparison being made with past years. A later paper, which was produced in 2015 by Peter Krisenthal, the public defender in Newcastle, entitled “Judge Alone Trials in NSW — Practical Considerations” said that between 1993 and 2007 the judge-alone acquittal rate had been higher than jury acquittal rates. Importantly for me, that is possibly due to medical practitioners agreeing there are mental health matters involved, resulting more often in trials being heard by a judge alone rather than a jury. That seemed to be a step towards justice. But that has changed since 2009 and, again, the reason for that is not clear. In any case, members, I would argue very strongly that the concern should be with the fairness of the trial process and thence the reliability of any conviction, not the rate of acquittal. It should be about making sure that people are getting the fairest possible trial.

With judges sitting alone being obliged to provide their reasons, there is opportunity to discover if they have erred in reaching their verdict and to appeal, if appropriate. Ultimately, it increases transparency quite significantly. In a highly publicised case, the verdict may not be what the media or the community expect and this can lead to criticism of our court processes. Juries do not have to give reasons for their decisions, but judges do. The reasons given by a judge alone will show how the trial judge reached his or her verdict. This is important. It means that people will know exactly why a decision has been made.

Debate adjourned, pursuant to standing orders.


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