Chapter 3
Issues
3.1
In general, submitters and witnesses gave in principle support for the
Bill but commented on specific provisions. This chapter deals with those
provisions, regarding:
-
the choice of venue;
-
pre-trial disclosure (obligations, abrogation of privileges and
sanctions);
-
disqualification from and empanelment of the jury;
-
rights of appeal;
-
bail (applications, presumption and criteria); and
-
the issue of dual jurisdiction.
3.2
This chapter also briefly discusses the capacity of the Federal Court of
Australia (Court) to handle an indictable criminal jurisdiction.
Choice of venue
3.3
The first provisions of the Bill to attract comment were those relating
to committal proceedings, and in particular, proposed subsection 68A(3) of the Judiciary
Act 1903. This provision requires a committal court to invite the
Director of Public Prosecutions (DPP) to suggest the court before which a
person is to be tried or sentenced, either the Court or a superior
state/territory court.[1]
The committal court must consider specifying the suggested court in the
committal order.
3.4
Some legal representatives questioned whether this provision should be
more inclusive with one expressing concern over the lack of a formal role for
the Defence[2]
and others suggesting that the Accused should have a statutory role in this
regard. The Victorian Bar Association stated its position that at some stage
the Accused should have a say as to the appropriate trial venue,[3]
and the Law Council of Australia agreed that the Bill could include such a
provision after an indictment is laid before a court.[4]
3.5
Proposed subsection 6(2F) of the Director of Public Prosecutions Act
1983 is also relevant to determining the court in which a person is to be
tried or sentenced. This provision allows the DPP to institute proceedings in a
court other than the court specified in the committal order.
3.6
This provision raised the prospect of the prosecutor 'forum shopping'
that is, selecting the venue most suited to the prosecution's case. The
Victorian Bar Association submitted that the Bill should include some form of
curial control, such as the Court having power to make venue changes of its own
volition,[5]
and cited a proposal currently before the Victorian Parliament as a possible
model. That provision reads:
Court may act on application or on own motion
Unless the context otherwise requires, a power or discretion
conferred on a court by or under this Act may be exercised by the court on the
application of a party or on its own motion.[6]
3.7
However, other witnesses queried the need for the insertion of this
'safety valve' into the Bill,[7]
and in evidence, the Attorney-General's Department (department) noted the
inherent power of the Court to stay proceedings in the event of an abuse of
process:
...the courts will ultimately have power to prevent a case from
proceeding if they think there has been an abuse of process. If one of these
courts thinks that the DPP has commenced proceedings before it when it is more
appropriate to go in another court, and if the DPP has done so because it wants
a forensic advantage or a logistic advantage, the court will have power to stay
the proceedings. That is an inherent power.[8]
3.8
The committee heard no evidence to suggest that 'forum shopping' is a
concern,[9]
even though the prosecution has traditionally determined the hearing venue, and
the department could see no reason for departing from tradition:
The prosecution decides whether to file an indictment. It
decides which witnesses to call, which charges to prefer. We trust the
prosecution to do all of that without review and oversight of the court.
Choosing the appropriate venue for the trial is part of that continuum. Of
course, the prosecutor will have to do that having regard to the interests of
justice.[10]
3.9
Rather than 'forum shopping', the Commonwealth Director of Public
Prosecutions (CDPP) identified the rationale for proposed section 6(2F) as the
enhancement of the prosecution's flexibility to decide on an appropriate venue:
...given that changes may occur between committal and indictment
as to the charges to be preferred, particularly if those charges are to include
State offences or other Commonwealth offences over which the Federal Court does
not have jurisdiction.[11]
3.10
Witnesses agreed that the prosecutor's discretion is primarily
logistical. Officers from the CDPP, for example, gave evidence that
Constitutional reasons would determine the prosecutor's choice
of venue,[12]
evidence consistent with both the Explanatory Memorandum and Justice Mark
Weinberg, a sitting judge on the Victorian Court of Appeal. His Honour
perceived no advantage to an Accused being tried in either the Court or a
state/territory superior court:
...if this bill goes through in something like this form, there
will be little advantage to be gained for an accused in seeking to be tried in
a state court rather than the Federal Court or vice versa. Both courts ought to
be able to provide, I would hope, a fair trial. The Federal Court, being better
resourced and more familiar with this sort of work, would probably be able to
bring the case on, I would think, significantly more quickly than some of the
state courts, particularly in the larger states.[13]
3.11
In stark contrast, the Law Council of Australia indicated that there
would be a bias toward the state/territory courts on account of the Court's
lack of experience conducting jury trials.[14]
There was, in fact, some suggestion that the cartel offences be framed in such
a way as to give greater jurisdiction to the state/territory courts.[15]
Pre-trial disclosure
3.12
Submitters and witnesses were also concerned with pre-trial disclosure
provisions in the Bill. While the NSW Attorney-General noted the discretionary
nature of these provisions,[16]
the substance of specific provisions concerned most submitters and witnesses.
Concerns regarding the parties' obligations, the abrogation of privileges and
sanctions are described below.
Disclosure by both parties
3.13
Proposed section 23CD establishes the three-step process for court
ordered pre-trial disclosure. Subsequent provisions detail what each party is
required to disclose and when. Prior to commencement of the trial, the
prosecutor, for example, is required to give the Accused notice of the
prosecution's case, including:
-
a copy or details of any information, document or other thing in
the prosecutor’s possession that the prosecutor reasonably believes contains
evidence that may be relevant to the Accused’s case;
-
if the prosecutor reasonably believes information in the
prosecutor’s possession suggests the existence of evidence that may be relevant
to the Accused’s case—a copy or details of so much of that information as is
necessary to suggest that existence;
-
a list identifying:
-
any information, document or other thing not in the
prosecutor’s possession that the prosecutor reasonably believes contains
evidence that may be relevant to the Accused’s case; and
-
for each item of information, and each document or other
thing, a place where the prosecutor reasonably believes the item, document or
thing to be.[17]
3.14
Justice Weinberg questioned the clarity of these provisions, telling the
committee that the prosecutor is obliged to disclose certain material to the
Accused, and the proposed section might appear to restrict this obligation:
The traditional obligation that rests upon a prosecutor is to
disclose any material that is potentially exculpatory...I wonder whether the
various criteria that are set out within items (a) to (k) make it clear that
the prosecutor’s duty is to disclose any material that is potentially
exculpatory to the defence...in paragraph (i) the test is ‘if the prosecutor
reasonably believes information in the prosecutor’s possession’ et cetera. I do
not understand the insertion of the word ‘reasonably’. If the prosecutor has a
belief then the prosecutor’s duty is, in my view, plainly to make the
disclosure.[18]
3.15
When put to the department, its response was that the prosecution need
not 'speculate about fanciful defences that an accused person may want to run':
the word reasonably limits the amount of material held by the
prosecution and which may have to be disclosed, according to the department, to
'non-fanciful' defences only.[19]
3.16
Proposed section 23CF sets out the Accused's response to the notice of
the prosecution's case, including:
and, if the accused
takes issue with the fact, the basis for taking issue;
3.17
In general, legal practitioners supported the policy objectives of the
pre-trial disclosure regime, that is, identification of matters in dispute
prior to trial. However, they did not support disclosure by the Accused in
accordance with proposed section 23CF.
3.18
The Law Council of Australia submitted that the provision conflicts with
a fundamental principle underlying criminal proceedings: that the Accused has
the right to remain silent while the prosecution bears the onus of proof and
must discharge this burden with respect to every element of the offence. It was
argued that, effectively, the proposed section requires the Accused to reveal
his or her defence:
The provisions currently in the Bill go too far in requiring the
defence to disclose the details of its case and not just the nature of the
issues which are in dispute with the prosecution or the general nature of the
defence.[21]
3.19
The department disagreed with this 'extreme' interpretation, agreeing
instead with Justice Weinberg who regarded proposed section 23CF as not
unusual, unbalanced or inappropriate:
The defence is, after all, being required to do no more than indicate
in broad terms whether it takes issue with a particular matter that the Crown
asserts or alleges and, if the accused does take issue, the basis for taking
that issue...Of course the defence does not have to indicate that the accused
will or will not give evidence in relation to this matter; nor does the defence
have to provide witness statements or matters of that kind.[22]
3.20
Neither the NSW Attorney-General[23]
nor the Victorian Bar Association concurred with Justice Weinberg's
interpretation of the basis for taking issue,[24]
and representatives from the Association told the committee that the provision basis
for taking issue is rarely, if ever, called upon, a view supported by the
Law Council of Australia:
...neither of us, each of whom have extensive experience in trials
and in the monitoring of this legislation, have heard a judge insist on the
statement of the basis for taking issue. Basically, what happens in practice is
that the defence says: ‘In relation to these matters, (1), (2), (3) and (4), no
issue is taken. We do not require the prosecution to prove those matters.
However, in relation to (5), (6) and (7), we do.’ For tactical purposes, the
defence may or may not then state a reason as to why.[25]
3.21
Notwithstanding these criticisms, the representatives of the department
asserted that the pre-trial disclosure provisions form a package, and it is not
possible to delete part or all of a provision without affecting the remaining
provisions. In relation to the provision basis for taking issue, the
resulting effect would be an obligation on the Accused to only state whether
the facts set out in the prosecution's case were agreed or not, which would
defeat the objectives of the pre-trial disclosure regime.
There would be nothing in these provisions which would prevent
the accused from simply saying, ‘Everything in the prosecution case is in
dispute,’ as a one-line response. That is why those words are in there and that
is why they are significant.[26]
3.22
Some submitters contended that the pre-trial disclosure regime is
potentially unjust to an Accused,[27]
a suggestion rejected by the CDPP[28]
and also Justice Weinberg:
...merely to indicate what matters are at issue and why they are
at issue strikes me as perfectly compatible with a fair trial...I do not regard
that, in this day and age, as being in any way antithetical to the conduct of a
fair trial or in violation of any notion of the right to silence or any of the
more traditional reasons why it is thought that the accused should simply be
entitled to put the Crown to its proof.[29]
3.23
The department agreed with His Honour's comments, reiterating that
proposed section 23CF is not designed to compel the Accused to outline its
defence. While open to interpretation, the department expects the provision to
be read consistent with the Explanatory Memorandum, as per current practice in
Victoria.[30]
State/territory developments
3.24
As observed in Chapter 2, the Bill is modelled primarily on Victorian
and some New South Wales legislation, yet both those jurisdictions are
reviewing and revising their legislation. In relation to pre-trial disclosure,
this led the Law Council of Australia to question the Bill's departure from the
Victorian legislative model,[31]
or alternately, its failure to implement a NSW review proposal for an Accused
to respond to the prosecution's case statement only:
That really bites in terms of cutting down on time and so forth.
It is not intended to produce any unfairness and it does not stop the defence
from doing anything in terms of what its evidence is. But we would expect that
if that is adopted it will have a real visible effect, and it is a different
kind of approach to the one that is being considered here.[32]
3.25
Officers from the department disagreed with the proposal to take into
account reviews, recommendations and possible amendments to legislation,
indicating that the Commonwealth can only work with the existing models.[33]
In this they were supported by Justice Weinberg who described the Bill as
comprehensive, well drafted, and containing sound innovations.[34]
Consequences of non-disclosure
3.26
Another controversial aspect of the pre-trial disclosure regime was
proposed section 23CM. This provision allows the Court to make such orders as
it thinks appropriate in the circumstances when a party fails to fully comply
with a disclosure order. Potential orders include that:
-
a party be allowed to tender a statement or other document as
evidence of its contents if:
-
the document was disclosed to the other party; and
-
the other party did not disclose an intention to contest or
require proof of the document’s contents as required by the order under section
23CD;
-
the Accused not be able, during the trial, to take issue with a
fact, matter or circumstance if:
-
the fact, matter or circumstance was set out in the notice of
the prosecution’s case; and
-
the notice of the Accused’s response did not both take issue
with the fact, matter or circumstance, and set out a basis for taking issue.[35]
3.27
The Law Institute of Victoria expressed concern with these provisions,[36]
and the Law Council of Australia agreed that they significantly depart from the
Victorian legislation. In that state, the trial judge may comment on inadequate
or non-disclosure to the jury and state that there is a 'divergence'. However,
this particular provision is modelled on section 148 of the Criminal
Procedure Act 1986 (NSW).[37]
3.28
The department informed the committee that it had considered but
expressly rejected the Victorian model on the basis that it has greater
potential for unfairness:
...there is also a provision saying that the comment to the jury
cannot suggest the defendant failed to comply because of a consciousness of
guilt. You look at that and think, "Well, what other form could the
comment take?" So there is a non-sanction in there –a sanction which
cannot be used.[38]
3.29
Legal representatives did not comment on whether the Victorian model
provides potential for a Judge to prejudicially comment on the Accused's case
however, the Law Council of Australia told the committee that the NSW
alternative more heavily penalises the Accused:
These are a series of penalties which fall on both sides but
which are going to fall much more heavily on the defence if there is a
departure from either of the two criteria established in defence disclosure.[39]
3.30
Whether or not the statutory sanctions penalise any one party, some
submitters and witnesses supported proposed section 23CM as a necessary
component of the pre-trial disclosure regime. Justice Weinberg, for example,
described it as an appropriate provision encouraging the reasonable and
expeditious conduct of a trial by the Accused:
It operates in this way: if the accused has conducted his or her
defence in a manner that is reasonable and recognises the public interest...in a
trial being conducted reasonably—in a manner that is moderately
expeditious—then there is a reward, as it were...that is a matter that can be
taken into account in sentencing at the end of the day by way of mitigation—not
carrying enormous weight, perhaps, but some weight.[40]
3.31
In a similar vein, representatives from the department explained that,
for the pre-trial regime to work, the real issue is, 'How do you ensure that
the Defence plays the game?':
For every defendant who is happy to cooperate and participate in
getting the issues narrowed, there will be at least one, possibly more, whose
instructions to their counsel will be, ‘Contest everything; drag the thing
out,’ in the hope that the case will fall over...
This whole process is designed to bring the parties together
before the trial commences and get as much as possible sorted out as can be
sorted out, without going so far as to require the defendant to disclose the
defence and without producing an unfair result—that is the balancing act—but
there have to be sanctions. These sanctions, of course, are all subject to the
interests of justice and fairness to the defendant. The ultimate responsibility
on the trial judge is to ensure that there is a fair trial.[41]
Abrogation of privilege
3.32
Proposed section 23CL automatically abrogates legal professional and
other privileges for the purposes of pre-trial disclosure. Witnesses to the
inquiry described this provision as having both substantive and technical
problems.
3.33
The Law Council of Australia, for example, questioned the rationale
offered in support of proposed section 23CL,[42]
and the NSW Attorney-General submitted that the provision is unnecessary and
inappropriate in criminal matters. The NSW Attorney-General also argued that
abrogation of privilege might reduce client-attorney disclosure, and more
importantly, it would if difficult, if not impossible, to quarantine pre-trial
disclosures from trial proceedings:
The section purports to reinstate privilege over the disclosed
information for purposes other than disclosure i.e. the trial itself. It is
difficult to see how this reinstatement can be effective, given that the
'privileged' information will be known to the prosecution team that conducts
the trial.[43]
3.34
A recent decision of the Court highlighted this concern, with the Court
upholding Cowell v British American Tobacco Australia Serviced Ltd [2007]
VSCA 301, quoting, in turn, Heydon in Cross on Evidence:
...once information in a privileged document has come into the hands
of a party to litigation even as a result of compulsive process which is later
reversed, the fact that the document was and remains privileged does not of
itself prevent that party from making use of the information.[44]
3.35
However, most submissions and evidence expressed concern with the
clarity and purpose of the provision. Justice Weinberg, for example, had
difficulty understanding the provision given that it was related to an
apparently contradictory provision:
Subsection (1) provides that ‘A party is not excused from
disclosing material under an order under section 23CD on the basis that to do
so would involve disclosing material that is protected’ et cetera ‘by legal professional
privilege’. Then you have subsection (2) which says: ‘This Subdivision does not
otherwise abrogate or affect the law relating to: (a) legal professional
privilege. I think for completion one has to go to section 23CO which creates a
kind of use immunity upon any material that is disclosed...I am not sure how
these provisions all mesh together but it seems to me that what is being said
is at the first point, 23CO(1), that there is no excuse from making disclosure
an order. Under 23CD such an order is made on the basis that legal professional
privilege exists in relation to the document. So an accused who is ordered
pursuant to 23CD to make relevant disclosure prima facie must disclose matters that
are the subject of legal professional privilege, if I am reading that section
correctly, but then we are told that the subsection ‘does not otherwise
abrogate or affect the law relating to: (a) legal professional privilege. I have
no idea what that means.[45]
3.36
The Law Council of Australia was equally 'uncomfortable' about proposed
section 23CL,[46]
and agreed that proposed subsections 23CL (1) & (2) may not operate
effectively together. The Council contrasted these provisions with subsections
30(3) & 30(9) of the Australian Crime Commission Act 2002, for which
it has been 'held that Parliament had no intention to abrogate the common law
rule of legal professional privilege through the operation of those
sub-sections,' and submitted that litigation concerning these subsections
affects the interpretation of the provisions in the Bill:
While the context of the decisions relating to the Australian
Crime Commission is different, these decisions indicate that there is potential
confusion over the meaning of such provisions which seek to restrict the common
law right of legal professional privilege...legal professional privilege is a
fundamental protection and pillar of the Australian legal system and should not
be abrogated by legislation.[47]
3.37
Representatives from the department gave evidence that proposed section
23CL is limited in its scope, necessary to achieve the purposes of the
pre-trial disclosure regime, and will not unfairly affect the Accused:
...if you go back and look at what the accused has to disclose under
the disclosure regime, all the accused ever has to disclose is copies of
witness statements they propose to rely on at trial and, if they propose to
lead alibi evidence or evidence of mental capacity, then they have to disclose
that material.[48]
3.38
On this point, the Law Council of Australia drew the committee's
attention to the concluding words of proposed section 23CF, 'and may include
other matters', and proposed section 23CH, which includes the Accused's
on-going obligation to disclose something if issue is taken with something in
the prosecution case on an alternative or additional basis. The Council
submitted that the effect of these provisions 'means that the obligation to
disclose evidential material may not be restricted to expert reports and
material relating to alibis and mental impairment.'[49]
Jury provisions
3.39
The Bill's jury provisions provoked comment in respect of two particular
matters: disqualification from jury service; and empanelment of the jury.
Disqualification from jury service
3.40
Proposed subsection 23DI(1) details when a person is not qualified to
serve as a juror. Disqualified persons include:
-
persons convicted of an offence and sentenced to either life
imprisonment or a term of imprisonment exceeding 12 months;
-
persons tried for an offence and ordered to be detained in a
hospital, juvenile facility or other detention facility either for life or a
period exceeding 12 months; and
-
persons tried for an offence within the past 10 years and ordered
to be detained in a hospital, juvenile facility or other detention facility.[50]
3.41
The Law Council of Australia submitted that the proposed subsection is
too broad: it assumes certain offenders are beyond full rehabilitation and
reintegration to the community, and some provisions inappropriately apply to
persons found unfit to plead or acquitted on grounds of insanity:
It is not appropriate to treat people in this category as though
they have been tried and convicted. If such a person is no longer detained and
not excused from jury service on grounds of incapacity, he or she should not be
disqualified from service on the basis of the outcome of a criminal trial at
which he or she was not convicted.[51]
3.42
The NSW Law Reform Commission supported this position in its recently
published report, 'Report 117 (2007) – Jury Selection', which also recommended
that:
-
the exclusion of people whose duties are connected with the
administration of justice should be more tightly defined; and
-
the exclusions in the Commonwealth Jury Exemption Act 1965
should be reviewed to confine them to those who have an integral and
substantial connection with the administration of justice or perform special or
personal duties to Government.[52]
3.43
The Law Council of Australia argued that the Bill should reflect these
current proposals as it is important for juries to be drawn from a wide pool
with jury composition reflective of the broader community.[53]
3.44
Proposed section 23DQ allows a potential juror to apply to the Sheriff
to be excused from serving on a jury. The Sheriff may excuse the potential
juror if satisfied that there is good cause: for example, the potential juror's
inability, in all the circumstances, to perform the duties of a juror to a reasonable
standard.[54]
3.45
Justice Weinberg noted that the Sheriff must have regard to the Disability
Discrimination Act 1992 but queried how that provision is to operate:
Is the sheriff, in effect, by virtue of that note, to discount
the difficulties that a juror would have if the juror were sight or hearing
impaired to the extent that they could not properly see or hear the evidence at
the trial?[55]
3.46
His Honour suggested that the note to proposed section 23DQ be removed
so as to not fetter the Sheriff's discretion:
Nothing should be done to put pressure on the sheriff to allow
somebody who has limited eyesight, limited hearing or some other disability
that falls within that act to serve on a jury at very considerable
inconvenience and risk to the integrity of the trial.[56]
3.47
When put to the department, its representatives stated that the
amendments to the Act will not override the Disability Discrimination Act
1992 however, 'nothing in the Disability Discrimination Act 1992 will
require the Court to allow a person to perform jury duties if they are
genuinely incapable of doing so.'[57]
3.48
The committee suggests that, in the context of juror disqualification,
the Sheriff might have difficulty applying the provisions of the Disability
Discrimination Act 1992, and should instead have regard to the objectives
of that Act. Alternately, the committee considers that further guidance
or explanation is necessary to enable the Sheriff to 'have regard to' a
potential juror's inability to perform the duties of a juror to a reasonable
standard without infringing the Disability Discrimination Act 1992.
Empanelling the jury
3.49
Submitters and witnesses also examined proposed subsection 23DU(1). This
provision requires an officer of the Court to call the name or, if directed by
the Court, number of a potential juror selected at random from the jury panel.
Submitters queried whether it was appropriate for a potential juror to be
identified in the courtroom.
3.50
The NSW Attorney-General submitted that any juror called by name was at
risk of being investigated by either the Accused or persons present in the
courtroom, and given the importance of juror anonymity, all potential jurors
should be called by number. The Victorian Bar Association agreed that this
should be the standard practice:
Jurors are very concerned these days about security,
particularly in trials that are regarded as security trials. Because of the use
of mobile telephones with cameras and the like, jurors feel very much under the
pump when coming and going from court. Their anonymity is being challenged in
all sorts of ways. We would encourage anything that can be done to preserve the
anonymity of jurors.[58]
3.51
However, not all witnesses agreed that this proposal was warranted in
relation to serious cartel offences. Justice Weinberg stated that potential
jurors have been called by name for hundreds of years with few problems, and
sometimes the process is modified (such as in terrorism trials or trials
involving people accused of crimes of extreme violence). His Honour also noted
that the Bill provides for the Court to make such modifications, if
appropriate.[59]
3.52
The department concurred with this view, adding that it might be unfair
to the Accused to call potential jurors by number. The argument presented to
the committee was that the name of a potential juror is one of the few things
an Accused knows about that person, and if that information were withheld, then
the ability of the Accused to challenge for cause might be denied:
When we give accused a right to challenge jurors, they do not
have a lot of information to do that with. One of the few things is the name of
the juror. The relevance of that is that a juror is called by name and somebody
on the defence team might recognise the name and say that person could be
involved in the case. If we take the name away and give them a number, then someone
is going to have to recognise the person. I just think that those provisions do
in fact detract from the rights of accused for no necessary purpose.[60]
Appeal rights
3.53
Part III Division 2A of the Bill deals with the Court's power to hear
appeals in criminal proceedings. Proposed section 30AB requires an appeal
against certain judgements to involve either a question of law only, or to have
the leave of the Court or a Judge. It was this provision in particular which
attracted the attention of Justice Weinberg.
3.54
His Honour considered proposed subsection 30AB(1) odd: 'normally it
would be the full court that would determine whether leave to appeal should be
granted or not rather than a single judge.'[61]
However, the department advised that the provision is based on subsection 25(2)
of the Act, and there is no apparent reason why that model should not be
adopted for the Court's indictable criminal jurisdiction as well as its civil
jurisdiction.[62]
3.55
Proposed section 30AD also relates to appeal rights, allowing an Accused
to seek the Attorney-General's written consent to an appeal. Justice Weinberg queried
whether this provision intends to give effect to an Attorney-General's
reference or DPP reference.[63]
However, the department assured the committee that this was not the case, and
reiterated that the provision is designed to assist the Attorney-General deal
with an application for the prerogative of mercy where a person convicted in
the Court raises questions which, in the opinion of the Attorney-General,
require the Court's further consideration.[64]
3.56
Justice Weinberg also raised 'a matter of some substance' relating to
proposed section 30AI. This provision allows the Court to receive further
evidence on appeal if satisfied that it is in the interests of justice to do
so.[65]
His Honour gave evidence that:
That is quite a departure from the rules that operate right
throughout Australia and in the United Kingdom which basically require that in
order to receive new evidence in a conviction matter the material has to be
what is called fresh evidence—that is, material that was not reasonably
available or could not with reasonable diligence have been discovered by the
defence at the time of the trial, and also that the material has to be of a
particular cogency. It has to be evidence of such cogency that it could
reasonably have influenced the jury’s verdict.[66]
3.57
Justice Weinberg argued that the provision needs to be more carefully
drafted to ensure that it does not significantly depart from the ordinary
provisions that govern fresh evidence on appeal in criminal trials:
...there is a whole body of jurisprudence on the distinction
between fresh evidence and further evidence. There is an additional hurdle that
has to be mounted if it is to be further evidence which could have been obtained
previously—that is, that the evidence really has to establish innocence. All
that jurisprudence and all that nuance are missing from the clause.[67]
3.58
The committee asked the department for its view on the interpretation of
proposed section 30AI. Representatives stated that the standard practice in
criminal cases is that only fresh and compelling evidence will be allowed on
appeal, a position reinforced by proposed subsection 30AI(1).[68]
Implicitly, the department did not consider the draft provision to be a
problem.
Bail
3.59
The bail provisions are set out in Part VIB of the Bill. One main
criticism regarding these provisions emerged from submissions and in evidence:
inconsistency with state/territory laws as demonstrated by a limited right to
apply for bail; the lack of a presumption in favour of bail; and differences in
bail criteria.
Limited right to apply for bail
3.60
Proposed section 58DA enables an Accused to apply to the Court for bail
for one or more offences during either indictable primary or criminal appeal
proceedings. However, if the Court refuses to grant bail to an Accused for an
offence, the Accused cannot apply again for bail for that offence unless there
has been a significant change in circumstances since the refusal.
3.61
While this provision is similar to some state legislation, the approach
has been criticised for trespassing:
...unduly on personal rights and liberties, such as the right to
liberty and the right to be presumed innocent. The provisions have also been
described as eroding the presumption in favour of bail and concerns have arisen
that the provisions are leading to delayed and/or lengthy applications for bail
and are having a particularly detrimental impact on juvenile offenders.[69]
3.62
In its submission, the Law Council of Australia supported the contrary
approach adopted by the majority of states/territories, that is, the ability of
an Accused to make multiple bail applications.
3.63
A corollary of the limitation is the test in proposed subsection
58DA(2): that there have been a significant change in the Accused's
circumstances. Legal practitioners giving evidence to the committee resisted
use of the word significant on the basis that the test might be more
onerous than that currently operating in other jurisdictions. Mr Phillip Priest
QC from the Law Council of Australia, for example, submitted that the Bill sets
the bar considerably higher than in Victoria where legislation perhaps
recognises that:
...you are dealing with the liberty of the subject and that one should
only deny a person's liberty in particular circumstances. People should have a
right to make bail applications so long as their circumstances have changed,
albeit not significantly.[70]
3.64
The Victorian Bar Association agreed that a change in facts and circumstances
should be sufficient to justify a further application for bail.[71]
However, the department did not countenance amending the provision to exclude
the requirement for a significant change in circumstances. Representatives
simply stated that the provision is a mechanism for preventing the lodgement of
multiple bail applications by the Accused.[72]
Lack of a presumption in favour of
bail
3.65
Among the bail provisions, the second matter concerning submitters and
witnesses was the Bill's lack of an express presumption in favour of bail. Most
legal practitioners interpreted this to mean that there is no such presumption.
3.66
The Law Council of Australia noted that:
-
the presumption is founded on the common law principle of
presumption of innocence and a prima facie right to be at liberty until
convicted; and
-
international human rights law, specifically Article 9(3) of the
International Covenant on Civil and Political Rights, is consistent with a
presumption in favour of bail.[73]
3.67
Submitters argued that the states/territories variously recognise the
continued existence of a presumption in favour of bail, and a number of
jurisdictions specifically identify types of offences or circumstances of
offending which justify a reversal of the presumption.[74]
However, there was a general consensus that there should be a presumption in
favour of bail for serious cartel offences.
3.68
Justice Weinberg, for example, gave the following evidence:
I cannot see why the normal rule that applies in relation to
most offences, which is that there is a presumption in favour of bail, should
not apply in relation to serious cartel offences. I would have thought that
these are not cases where there is a serious risk that witnesses are going to be
interfered with, at least in the form of violence or anything of that kind. If
you are talking about the capacity to approach witnesses, that can be done from
custody as well as while not in custody. I would have thought, frankly, that
these are not cases where there is a serious risk of absconding. The people who
are charged with these sorts of offences are likely to have close ties to the
community and in my view are unlikely, prima facie, to abscond...this is a case
where there ought to be a presumption in favour of bail.[75]
3.69
The Law Council of Australia agreed, hypothesising that perhaps the
draftsperson assumed that a court looking at the bail provisions would apply
the common-law presumption in favour of bail: 'of course, it would be much
better if that presumption was enshrined in legislation, in the same way that
it is recognised in Victoria.'[76]
3.70
The committee notes evidence from the department that the courts do make
such an assumption, and for that reason, the department considered it
irrelevant whether or not a presumption in favour of bail is provided for in
the Bill:
A court, considering a bail application, whether it is in this
bill or not, whether it is in the act, will take into account that the person
appearing before them has not been convicted of any criminal offence. The court
will look at the criteria: is there a risk of flight, is there a risk of
suborning witnesses, and all the rest of it. But that fact—that the person is
entitled to be considered innocent until proven guilty—is there as part of the
common law, as part of the principles that come with the territory.[77]
3.71
Nonetheless, the committee inquired as to why the Bill contains no
presumption in favour of bail, effectively reversing the onus on the
prosecution to establish grounds on which bail ought to be refused. Officers
from the department responded that the Bill balances competing interests and
rather than adopt a highly prescriptive approach, relies upon the experience
and judgement of the Court:
...we looked at whether there should be a presumption for or
against bail and thought, ‘These are serious offences, 10 years imprisonment,
about to be enacted. There is the need to control white-collar crime.’ To then
put a provision in saying, ‘But there is a presumption of bail,’ seemed to be
slightly contrary to that message. On the other hand, of course, it has been pointed
out that these are going to be long trials; people have got ties to the
community. The position we came to was, ‘This is the Federal Court. These bail
provisions are designed to be applied by Federal Court judges.’ State bail laws
are applied by the whole range, from bail sergeants up to Supreme Court and
Court of Appeal judges. There is not the same need for prescription and
guidance. We can trust the Federal Court judges to consider those matters and
to make appropriate orders.[78]
3.72
The CDPP agreed with this view, commenting that:
...the important thing in relation to bail is that the courts are
well placed to make those decisions, balancing the different interests between
the rights of the public and the rights of the defendant.'[79]
Differences in bail criteria
3.73
Proposed section 58DB empowers the Court to grant bail to the Accused
for one or more offences, and it specifies matters to be considered by the
Court when determining a bail application:
-
whether the Accused will appear in Court if bail is granted;
-
the interests of the Accused;
-
the protection of any other person;
-
the protection and welfare of the community, including whether
there is a risk that the Accused will commit offences if bail were granted;
-
whether there is a risk that the Accused will approach witnesses
or attempt to destroy evidence.[80]
3.74
Submissions and evidence raised a concern regarding these bail criteria,
that is, a committal court will apply state/territory bail criteria, rather
than these criteria, and the 'significant' variation between the jurisdictions
will culminate in dissimilar treatment of Accused.
3.75
The Law Council of Australia cited by way of example the following bail
criteria used in some jurisdictions:
-
the character, antecedents, background and/or community ties of
the Accused;
-
the strength of the evidence against the Accused;
-
the period that the person may be obliged to spend in custody if
bail is refused;
-
the Accused's previous failure to appear; and
-
the nature and seriousness of the offence.[81]
3.76
The Law Council of Australia suggested that the Bill include provisions
more consistent with the states/territories, not only to achieve greater
legislative consistency and treatment of Accused, but also to enable the Court
to consider the multiplicity of factors relevant to a grant of bail.
3.77
When asked about this aspect of the Bill, the department was adamant
that the bail provisions summarise the requirements of existing state/territory
laws, and there is no need to tell Court Judges to take into account the
breadth of bail criteria.[82]
Dual jurisdiction
3.78
Dual jurisdiction was a pervasive issue throughout the inquiry. Some
submitters and witnesses favoured the creation of an entirely separate federal
criminal jurisdiction. Others took the opposite view, arguing that state/territory
courts should continue to handle the prosecution of Commonwealth indictable
offences. Yet others supported the Bill with its creation of an indictable
criminal jurisdiction for serious cartel offences only.
3.79
Proposed sections 68A – 68C of the Judiciary Act 1903 deal with
situations in which both the Court and a state/territory court share
jurisdiction. This is a slightly unusual position,[83]
which arises due to the creation of the Court's indictable criminal
jurisdiction and the existing investiture of state/territory courts with
federal criminal jurisdiction under section 68 of the Judiciary Act 1903.[84]
3.80
Consistent with the Explanatory Memorandum, the CDPP submitted that the
Bill will allow a state/territory superior court to hear cases involving either
Commonwealth serious cartel offences and state/territory offences, or
Commonwealth serious cartel offences and other Commonwealth offences: there
will be no disjoiner.[85]
3.81
As noted by several witnesses, the Constitution does not permit
state/territory jurisdiction to be invested in the Court. For that reason, and
due to the charges preferred in most criminal cases, the Law Council of
Australia envisaged most criminal prosecutions continuing to be heard in
state/territory courts:
As things currently stand, in most federal prosecutions there
are state offences, particularly state dishonesty offences. If you federalise,
move towards more creation of federal offences, the problem might dissipate,
but people are not going to start cases in the Federal Court when they cannot
have state dishonesty fraud type offences, which is the norm, for example, in
corporations and tax type prosecutions.[86]
3.82
The NSW Attorney-General similarly questioned whether the Bill
adequately addresses problems of dual jurisdiction, submitting that if the
Court does not have jurisdiction to hear state/territory offences and the
criminal proceedings are disjoined, then this would increase trial costs and
delays for both an Accused and the relevant state/territory. Furthermore,
disjoining criminal proceedings could create division, inconsistencies and
inequalities between Accused charged with the same offence but prosecuted in
the Court as opposed to a state/territory court.[87]
3.83
Officers from the department acknowledged that either court will apply its
rules of evidence and procedure, which might differ in some respects but
disagreed that this will result in dissimilar treatment of persons charged with
the same offence:
The fundamental proposition will remain that, before either
court, the accused person must receive a fair trial...the Department has seen no
evidence to suggest that an accused person has ever failed to receive a fair
trial because of the choice of one Australian court system over another.[88]
Resources and capacity
3.84
The Court's capacity to handle an indictable criminal jurisdiction, and
its available resources, are a factor in the provision of a fair trial. In
evidence, witnesses indicated that state/territory governments do not
adequately fund the state/territory criminal justice systems, which might have
negative implications for Commonwealth matters heard in those courts.[89]
However, the committee heard that, in general, the Court is highly equipped in
terms of knowledge, expertise and experience to handle the prosecution of
serious cartel offences.[90]
For example, Justice Weinberg, a former DPP and Judge of the Court, stated:
[The Court] has a number of judges who have extensive criminal
trial experience from their former lives as state Supreme Court judges—and I do
not imagine that there are going to be a huge number of these cases, frankly,
or that they are going to be charged in the immediate future, so there is time
for planning. But these are very special, very difficult cases. They require
top judges to do them, and the Federal Court is well equipped to handle this
work.[91]
3.85
Chief Justice Michael Black AC of the Court concurred, noting that some
Judges have presided over criminal trials and criminal appeals as
state/territory Supreme Court Judges, others routinely preside over criminal
cases in their capacity as additional Judges of the ACT Supreme Court, and a
substantial number of the Judges have previously appeared in important criminal
cases at the Bar. In addition, His Honour noted that for many years the Court
was the Court of Criminal Appeal for the territories, and also 'encounters' the
criminal law in certain cases of judicial review.[92]
3.86
In relation to serious cartel offences, Chief Justice Black AC
particularly noted the Court's expertise:
The Federal Court has – and the Supreme Courts do not have –
experience in dealing with complicated economic concepts in the field of
competition law and the Federal Court has been responsible for the developing
jurisprudence that field subject, of course, to the ultimate authority of the
High Court.[93]
3.87
The committee also received some evidence regarding the CDPP's capacity
and capability to pursue prosecutions in the Court. The CDPP acknowledged that
it will be a challenging new area of work, both in terms of actual offences and
the new jurisdiction. However, the CDPP was confident that it has sufficient
funding and expertise to meet these challenges,[94]
and other witnesses agreed with this assessment.[95]
Committee View
3.88
The Bill establishes the procedural framework which the Court will
require to exercise the new indictable criminal jurisdiction to be granted by
the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008.
3.89
The provisions of the Bill are, on the whole, well drafted and sound,
and the committee is confident that the Court and the CDPP have the capacity
and resources to professionally and expertly implement these provisions.
However, the committee acknowledges the various concerns raised throughout its
inquiry.
3.90
Some submissions and evidence called for amendments to the Bill and provided
argument in support of those recommendations. The committee did not agree with
all the suggestions, for example, proposals to amend proposed section 23CM and
proposed subsections 23DU(1), 58DB(2), 6(2F) of the Director of Public
Prosecutions Act 1983, and 68A(3) of the Judiciary Act 1903.
3.91
The committee is not convinced that the traditional method for
determining the trial venue is flawed, nor that whatever the prosecutor's
choice, the Accused will be afforded a less than fair trial. Members of the committee
have full confidence in not only the CDPP but also the Court, which has an
inherent power to stay proceedings should an abuse of power occur.
3.92
Both the department and Justice Weinberg gave evidence as to the
recalcitrance of some persons charged with offences against the Commonwealth.
With this in mind, the committee agrees that statutory sanctions are
appropriate to encourage and reward compliance with the pre-trial disclosure
regime.
3.93
The committee accepts that there might be some advantage to calling
potential jurors by number during the empanelment process. However, for the
purposes of this Bill, the arguments presented are not sufficiently compelling
to abandon the traditional process of calling potential jurors by name. The
committee notes, in any event, that the Bill provides for both options, if
appropriate.
3.94
In relation to bail criteria, the committee accepts that the Bill
summarises but does not limit the multiplicity of factors to be considered by
the Court in determining an application for the grant of bail. The knowledge,
experience and expertise of the Court is acknowledged, and the committee is
confident that the Court will properly consider all bail applications.
3.95
As indicated by the Attorney-General, the Bill creates a national
approach to the prosecution of serious cartel offences. While the committee
received no evidence regarding the status of the Rules of Court, the ability of
the courts to safeguard the rights of individuals is not doubted. The committee
urges the Court to expedite the development and implementation of its Rules to ensure
that accused persons are statutorily protected and assured of similar treatment
regardless of jurisdiction.
3.96
Aside from these specific issues, the committee
asked witnesses whether the Bill raises any foreseeable Constitutional issues.
Most witnesses responded in the negative.
3.97
The committee did however agree that the Bill can
be improved with certain amendments. In general, the expert comments of Justice
Weinberg bear mention, and the committee considers that there is merit in the
department continuing to consult with His Honour. In relation to particular
provisions of the Bill, the committee does not agree with the following
provisions and makes recommendations accordingly. The
committee did however agree that the Bill can be improved with certain
amendments: namely, proposed sections 23CF, 23CL and 23CM;
subsection 58DA(2); and Part VIB Division 2.
3.98 In relation to the Accused's pre-trial disclosure
obligations, the preponderance of evidence from legal practitioners, in
particular the Law Council of Australia and Victorian Bar Association, was that
these provisions infringe upon established principles of common law to the
detriment of the Accused. The committee acknowledges the objectives of the
pre-trial disclosure regime but considers that the appropriate balance has not
been struck between the rights of the individual and the public interest. Most
of the disagreement revolves around a particular provision, basis for taking
issue, and the committee suggests that this provision could be better
drafted to reflect the competing interests.
3.99 On the other hand, the committee is not convinced that
there is any case for the abrogation of legal professional and other
privileges. There was no hard evidence before the committee supporting the
rationale for this convoluted provision, and the committee cannot see how such
disclosure can be effectively 'limited' to pre-trial proceedings only.
Consistent with previous comments, the committee does not support specific disclosure
by the Accused, including highly sensitive and otherwise privileged
information.
3.100 As part of the pre-trial disclosure regime, the committee
supports statutory sanctions as a means of encouraging both parties to
reasonably and efficiently comply with court ordered disclosure. However, the
committee is not convinced that the relevant provision operates equitably. In
particular, it is concerning that the conduct of the Accused's case could be
significantly hampered at trial due to a failure to disclose during pre-trial
proceedings. Evidence presented suggests that the Victorian sanctions might be
more suitable. Again, the committee has faith in the judiciary to safeguard the
interests of individuals when exercising its discretion, and for these reasons,
the committee considers that the Victorian sanctions model should be
re-examined by the department and incorporated into the Bill.
3.101 The committee notes the specific issue of further
evidence/fresh evidence in appeal proceedings. While Justice Weinberg and the
department agree that such evidence must be both fresh and compelling, this
understanding is not apparent in the provision.
3.102 As regards the bail provisions, the committee received no
evidence supporting the stated rationale and therefore questions whether a bail
applicant should be limited to a single application for bail without a change
in circumstances. The right to be at liberty is a fundamental consideration and
should not be impeded lightly. Moreover, the committee considers the
requirement for a significant change in circumstances to be onerous and
inconsistent with other jurisdictions.
3.103 Most importantly, the committee does not accept that it is
immaterial whether the Bill expressly includes a presumption in favour of bail,
whether for serious cartel or other Commonwealth offences. While the committee
has every confidence in the Court, it behoves the Parliament to clearly
stipulate its intentions and support the right of a person accused of an
offence to be at liberty until convicted.
Recommendation 1
3.104 The committee recommends that the proposed section 23CF be
clarified to ensure that it is only intended to require a non-specific
indication of the Accused's reasons for dispute.
Recommendation 2
3.105 The committee recommends that the proposed section 23CL be
amended to ensure that it does not require a general removal of legal
professional privilege but rather only clarifies the effect of an order of the
court pursuant to the proposed section 23CD requiring the accused to disclose a
limited range of documents such as draft witness statements and expert reports
but not legal advice.
Recommendation 3
3.106 The committee recommends that proposed section 23CM be
amended to reflect the sanctions regime embodied in Victorian legislation.
Recommendation 4
3.107 The committee recommends that proposed section 30AI of the Bill be
re-drafted to clarify the jurisprudentially established
distinctions between the terms 'fresh evidence' and 'new evidence or further
evidence' reflect the admission of fresh evidence for which
there is established jurisprudence.
Recommendation 5
3.108 The committee recommends that proposed
subsection 30AB(2) be removed so that the granting of leave to appeals against
an interim judgement or decision is not restricted to the trial judge.
Recommendation 6
3.109 The committee recommends that proposed subsection 58DA(1)
of the Bill allow for multiple bail applications and that the requirement for a
significant change of circumstances be deleted from proposed subsection
58DA(2).
Recommendation 7
3.110 The committee recommends that the Bill be amended to
include a presumption in favour of bail.
Recommendation 8
3.111 Subject to the preceding recommendations, the
committee recommends that the Senate pass the Bill.
Senator Trish Crossin
Chair
Navigation: Previous Page | Contents | Next Page