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17 May 2017

Summary Procedure (Indictable Offences) Amendment Bill – Committee Stage

In committee.

(Continued from 11 May 2017.)

Clause 7.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–2]—

P age 31, after line 28 [clause 7, inserted section 125]—Before inserted subsection (7) insert:

(6a) If a defendant in proceedings for an indictable offence in a superior court fails to comply with disclosure requirements applying under section 124, the failure may be made the subject of comment to the jury by the prosecutor or the judge (or both).

This amendment seeks to re-enact existing sections 285BC(5)(b) and 285C(4) of the Criminal Law Consolidation Act 1935. Both sections 285BC and 285C are located in part 9, division 8 of the Criminal Law Consolidation Act 1935, which is repealed by clause 9 of schedule 2 of the bill.

As honourable members are aware, the provisions repealed by this clause have been largely reproduced in the bill. Section 285BC is the existing provision in the Criminal Law Consolidation Act dealing with expert evidence. It was inserted into the Criminal Law Consolidation Act by the Statutes Amendment (Criminal Procedure) Act 2005, based on recommendations by the Duggan committee and following the Kapunda Road Royal Commission. It commenced in March 2007.

There was no intention by the government to resile from this provision by the introduction of the bill. Accordingly, section 285BC has been substantially re-enacted via proposed clauses 124 and 125 of the bill. For example, sections 285BC(1), (2) and (4) are substantially re-enacted in clauses 124(1), (4) and (7) of the bill. Section 285BC(6) is substantially re-enacted in clause 125(3) of the bill. Section 285BC(5)(b) was not separately re-enacted in the bill because it was ‘covered’ by the inclusion of clause 125(6). The passing of the opposition amendment, removing clause 125(6), necessitates this amendment in order to ensure that the status quo is maintained.

Section 285BC(5)(b) currently provides that, if a defendant fails to comply with a requirement under that section relating to the introduction of expert evidence for the defence, the prosecutor or the judge may comment on the noncompliance to the jury. That provision has been part of the overall package of provisions relating to expert evidence since 2007. There has been no suggestion that this has created any unfairness on an accused in that time. There is no reason to change the existing position. Similarly, section 285C is the current provision relating to alibi evidence. It has been part of the existing law for even longer than section 285BC, being introduced in 1984. It was not separately enacted in the bill because, like section 285BC, it was covered by the inclusion of clause 125(6).

The passing of the opposition amendment removing clause 125(6) necessitates this amendment in order to ensure the status quo is maintained. It provides that noncompliance with the section, requiring notice to be given by a defendant if they intend to raise evidence of alibi at trial, may be made the subject of comment to the jury. Again, there has been no real suggestion that this provision has created any unfairness to the accused. There is no reason to resile from this provision now. This amendment seeks to maintain the status quo by substantially re-enacting existing sections 285BC(5)(b) and 285C(4).

The Hon. A.L. McLACHLAN: I indicate that the Liberal opposition will support this amendment. In layperson’s terms, in effect the government has accepted the vote of the chamber in respect of the amendments that were moved by myself and as a consequence is seeking to put this new bill and its new structures but, in relation to this provision, on the same footing as the law as it currently exists. For that reason the Liberal opposition will support the amendment.

The Hon. M.C. PARNELL: Just as a point of clarification so that I can try to understand how these provisions fit in with the bill we have currently, including the Liberal amendments: what was struck out was this idea that the defence must, in their case statement, disclose what is their defence, including any particular defences. Having struck that out, that still stands, but effectively it has been watered down by the reinclusion of these provisions.

In other words, you do not have to disclose that your defence was one of provocation, you do not have to disclose that your defence was intoxication or whatever it is, but if you intend to lead any evidence in relation to any of those defences you have to disclose the fact that you are going to lead the evidence, therefore you are effectively disclosing your defence. Have I understood that right?

So, in your case statement you do not have to say formally what is your defence, but if any of your defences require evidence to be led, whether it is expert evidence or even evidence from the defendant himself or herself, then you do have to do that, and if you do not do it that can result in an adverse inference. Have I understood that correctly?

The Hon. P. MALINAUSKAS: My advice is that what has been proposed essentially is to reinstate what is already currently the existing law.

The Hon. A.L. McLACHLAN: From the Liberals’ perspective, the offending provisions that were removed were broad, so there was a broad provision that required in the case statements a delivery of a defence, and then as a consequence of that, or any other failure to deal with the case statement requirements, a commentary should be made, so these amendments are narrower. That is what has been convincing the Liberal Party. Not only is it the existing law, but it is narrower because amendment No. 1 deals with expert evidence and only expert evidence.

The second amendment relates only to a set of circumstances where the prosecution has to apply to the court. In those circumstances they are narrower. That is the basis on which the Liberal Party is accepting the amendments.

The Hon. M.C. PARNELL: It is technical and it is complicated, but I do not propose to delay the chamber. If these are existing provisions, whilst there might be a case for amending them further or removing them, it is not something I am inclined to do at this stage. We will not be objecting to either of these amendments.

The Hon. J.A. DARLEY: For the record, I will be supporting the government amendments.

Amendment carried.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–1]—

P age 32, lines 9 to 11 [clause 7, inserted section 126(2)]—Delete subsection (2)

Amendment No 2 [Parnell–1]—

P age 32, lines 12 to 20 [clause 7, inserted section 126(3)]—Delete inserted subsection (3) and substitute:

(3) A master or judge must not grant an application under subsection (1)(b) unless satisfied that it is in the interests of justice for the subpoena to be issued.

Both of these amendments relate to the same clause and the same page, so I will deal with them together. The issue that was put to me was that the ability to preserve evidence through the use of a subpoena is an important element in the justice system. The question arose then about whether there were any restrictions on the ability of the defence, in particular, to be able to apply for a subpoena to preserve evidence.

Under the bill, as it was drafted, there were restrictions and there were gaps of time when it was not legally possible for the defendant to apply for a subpoena. So, the effect of these amendments is quite simple: it basically closes the gap, if you like. Whether case statements have been filed or not, whether we are looking at before or after arraignment, whilst the proceedings are all underway, there should not be any period of time when it is ineligible for the defendant to apply for a subpoena. That is the simplest way I can describe it.

My understanding is that the government likes the idea of having more leverage on defendants by limiting their ability to apply for subpoenas if they have not put their case statement in yet. I do not subscribe to that view. If evidence comes to light that needs to be preserved, then regardless of when that is, the defendant should be able to go to court and ask for a subpoena to preserve that evidence.

The Hon. P. MALINAUSKAS: The government opposes this amendment. The proposed amendment seeks to remove a restriction on the issuing of subpoenas unless the party seeking it has filed their case statement. That restriction applies to both the prosecution and defendants. The restriction is in place to ensure that subpoenas are only issued when it is likely that the material sought will be relevant to the matters that are in issue as disclosed in a case statement. The case statements are, amongst other things, directed towards narrowing the issues that are generally in dispute in contested matters to allow the parties and the court to focus on those issues, rather than wasting time and resources preparing to address issues that are not seriously in dispute.

The provision ensures that subpoenas are not issued that would enable fishing expeditions; that is, when a subpoena is sought to be issued, to see what documents might exist rather than for specific documents or a specific class of documents, or subpoenas which are oppressive or seeking irrelevant material. It provides the court with the ability to determine what is genuinely in issue in a major indictable matter and thus whether the material sought is likely to be relevant to the matter. It is an appropriately balanced approach to safeguard the interests of those who may be issued with a subpoena, while ensuring that a party is able to subpoena all genuinely relevant material that they need to. Therefore the amendment is opposed.

The Hon. A.L. McLACHLAN: The Liberal opposition is supporting the amendments, for the reasons articulated by the Hon. Mr Parnell. Whilst we understand the approach of the government, which is to effectively tie the subpoena to the case statements and the case statement process, it does not take into account the situation that occurs when a defendant may need their counsel to seek a subpoena to protect evidence or seek evidence or a package of evidence, which they may feel assists them with a trial.

Therefore, we believe that, unamended, the subpoena process does not take into account, maybe, unusual circumstances, but nonetheless an opportunity for the defendant to protect their interests. We do not accept that it needs to be tied to the case statements. In any event, it is on application to the court and the court is best placed to determine the merits of the application.

The Hon. J.A. DARLEY: I will be supporting both of the Greens’ amendments.

Amendments carried.

The Hon. P. MALINAUSKAS: I move:

Amendment No 2 [Police–2]—

P age 35, after line 19—After inserted section 133 insert:

133A—Power to require notice of intention to adduce certain kinds of evidence

(1) A court before which a defendant is to be tried on information may, on application by the prosecutor, require the defence to give the prosecution written notice of an intention to introduce evidence of any of the following kinds:

(a) evidence tending to establish that the defendant was mentally incompetent to commit the alleged offence or is mentally unfit to stand trial;

(b) evidence tending to establish that the defendant acted for a defensive purpose;

(c) evidence of provocation;

(d) evidence of automatism;

(e) evidence tending to establish that the circumstances of the alleged offence occurred by accident;

(f) evidence of necessity or duress;

(g) evidence tending to establish a claim of right;

(h) evidence of intoxication.

(2) Before making an order under this section, the court must satisfy itself that—

(a) the prosecution has provided the defence with the prosecution case statement in accordance with section 123; and

(b) the prosecution has no existing, but unfulfilled, obligations of disclosure to the defence.

(3) Non-compliance with a requirement under subsection (1) does not render evidence inadmissible but the prosecutor or the judge (or both) may comment on the non ‑ compliance to the jury.

(4) A court before which a defendant is to be tried on information may require the defence to notify the prosecutor, in writing, whether the defendant consents to dispensing with the calling of prosecution witnesses proposed to be called to establish the admissibility of specified intended evidence of any of the following kinds:

(a) documentary, audio, visual, or audio visual evidence of surveillance or interview;

(b) other documentary, audio, visual or audio visual evidence;

(c) exhibits.

(5) If the defence fails to comply with a notice under subsection (4), the defendant’s consent to the tender of the relevant evidence for purposes specified in the notice will be conclusively presumed.

This amendment seeks to re-enact section 285BB of the Criminal Law Consolidation Act. Like sections 285BC and 285C, section 285BB is located in part 9, division 8 of the Criminal Law Consolidation Act 1935, which is repealed by schedule 2, clause 9 of the bill. Section 285BB was introduced into the CLCA at the same time as 285BC. It also commenced in March 2007.

Similar to the situation I have already outlined for sections 285BC(5)(b) and 285C(4), and section 285BB of the Criminal Law Consolidation Act, it was not separately re-enacted in the bill because the inclusion of clause 123(4)(g) had the effect that it would no longer have any work to do. The passing of the opposition amendment removing clause 123(4)(g) necessitates this amendment in order to ensure the status quo is maintained.

The Hon. A.L. McLACHLAN: The Liberal opposition indicates that it will support the amendment. Perhaps my intended explanation of amendment No. 1 strayed into an explanation of amendment No. 2, but, for similar reasons, the government, having accepted the will of the chamber in relation to the amendments that it has made to the bill, is seeking to restore provisions that are currently applicable. On that basis, the Liberal opposition is accepting of the amendment.

Amendment carried; clause as amended passed.

Clause 8.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

P age 61, after line 8 [clause 8, inserted section 180(6)]—After the definition of court insert:

firearm has the same meaning as in the Firearms Act 2015 ;

offensive weapon means—

(a) an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including—

(i) a firearm or imitation firearm (ie an article intended to be taken for a firearm); or

(ii) an explosive or an imitation explosive (ie an article or substance intended to be taken for an explosive); or

(b) an article or substance that a person has—

(i) for the purpose of causing personal injury or incapacity; or

(ii) in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity.

This amendment is of a technical nature. As was made clear in the explanation of clauses upon the second reading of the bill, clause 180 of the bill substantially re-enacts section 299A of the Criminal Law Consolidation Act. Both the terms ‘firearm’ and ‘offensive weapon’ are referred to in that section. Both terms are defined in the interpretation section of the Criminal Law Consolidation Act; however, the definitions do not currently appear in the Summary Procedure Act 1921. This amendment is to ensure that clause 180 continues to be interpreted in the same way as it would if it had not been moved from the Criminal Law Consolidation Act.

The Hon. A.L. McLACHLAN: I have already indicated that the Liberal opposition will be supporting this amendment.

Amendment carried; clause as amended passed.

Remaining clauses (9 and 10), schedules 1 and 2, and title passed.

Bill reported with amendment.

Bill recommitted.

Clause 7.

The Hon. P. MALINAUSKAS: I move:

Page 9, after line 41, delete new section 103A.

The Hon. M.C. PARNELL: I would love to hear the minister tell us why he thinks 103A should be excluded.

The Hon. P. MALINAUSKAS: Put simply, we are seeking to do this for all the same reasons that we articulated to our original opposition earlier.

The Hon. A.L. McLACHLAN: I think it is appropriate to set out the Liberal opposition’s position at this time. Honourable members will recall that we supported the amendment that the government is now, on recommittal, seeking to strike out of the bill, or delete from the bill. We are certainly attracted to this provision and its effects, but since the break from when we last considered this bill in committee, the Attorney and the shadow attorney have met, and the government made submissions to the Liberal opposition based on advice that it had received from the Director of Public Prosecutions. The position of the government has been set out to the Liberal opposition in a letter to the shadow attorney in the other place from the Attorney in the other place, dated 15 May.

In essence, the government takes the view that it will have unintended consequences by being inserted in this bill and that it is better placed in the Victims of Crime Act. Because they are inserted into this act, it may cause judicial officers to consider that they need to take rulings in relation to it. I am not really paraphrasing the letter; I am trying to pick out the key points.

The Liberal opposition, based on the briefing and its understanding of the advice given by the Director of Public Prosecutions, has decided that it will support the government in this instance, but states to the chamber that it has sympathy for this amendment and if an amendment were to come to the Victims of Crime Act in a similar effect it would be inclined to support it, having regard to the context at the time.

The Hon. M.C. PARNELL: The Greens supported this amendment when we were last in committee. We were attracted to the idea that in these proceedings it is now generally recognised that victims have some rights. The debate is: what are those rights? Where do we draw the line? They certainly have a right to put in a victim impact statement, for example. What the honourable member’s amendment sought to do was basically to ensure that, if the prosecution dropped or downgraded charges, the victim would be consulted.

When we debated this last time, there was some discussion around what might be the practical effect of that consultation. It is pretty easy to see a situation where the victim says, ‘I’m not happy that you’ve dropped the charges,’ or, ‘I’m not happy that you’ve downgraded them.’ The prosecution tries to explain to the victim, ‘We just didn’t have enough to get them on murder. We thought the best we could do was get them on manslaughter, so we have dropped the charges.’ Ultimately, that is a matter for the DPP. They are going to determine what they think they can get, but the victim, under this amendment, would have to be consulted.

The way the amendment was worded was that the prosecutor would have to advise the court whether consultation had occurred. I understand the dilemma was that if the prosecution had not done their job then the judge might say, ‘I am going to adjourn until you go away and do your job. Go and tell the victim what you have done and why you have done it, and come back and tell me what their response was.’ Still, I cannot see that a whole lot flowed from it because in our system it is the state that prosecutes cases, it is not the victims.

The victim would not have any capacity at all to say, ‘I am really unhappy with the DPP,’ express that unhappiness to the judge—even via the prosecutor—and then expect that some different result might happen. It is just not going to happen. I think that was one of the Attorney’s big concerns, that what might seem to be a fairly simple issue of politeness, consideration or respect for victims, that they be kept informed, might end up resulting in real outcomes in court that could include delays and expense. That is my understanding of the problem.

I have not brought it with me, but I saw that the victims of crime commissioner was very supportive of this. His role is to make sure that the voice of victims is heard, and this is one area where victims feel they need to be heard; that is, in the dropping of charges or the downgrading of charges. It is perhaps a little outside the scope of this, but if we look at the whole range of victims’ rights, from the commission of an offence right through to the sentencing, there is a situation where victims do not actually have rights until it enters court. In other words, a victim would have the right to be told that charges are being dropped, but they do not have any right to be told why charges were never laid in the first place.

I understand that is a slightly different issue but, in terms of this contribution, what I would like to hear from the minister is: what commitment is the minister prepared to give on behalf of the government that the victims of crime legislation—if that is the most appropriate place to put these issues of victims’ rights, whether it is consultation or negotiation, either before charges are laid or after charges are laid and subsequently dropped—will be reviewed at some stage in the near future, when we can reagitate these issues if they are not going to get up today?

The Hon. P. MALINAUSKAS: The government’s position is simply that we believe the Victims of Crime Act, as it currently stands, provides suitable opportunities and protections for victims of crime to have a legitimate say in the process.

The Hon. M.C. PARNELL: I am disappointed that the government is not able to go a little bit further than that other than to say they are happy with the act and that they are not proposing to even think about any further changes. In light of that response, I am going to continue with my support for the Hon. John Darley’s amendment. I can see that it does have some problems. Another one that was raised was: what if the victim does not want to be found, does not want to have a say? There is a whole range of scenarios we can imagine. I do not want to let this principle just get lost when we have moved on to the next bill, after this one.

I urge the government to revisit the issues the victims of crime commissioner has raised and also the issues that I have raised. I think it is time to revisit not just victim impact statements but a bit more involvement, where victims of crime are told early on either why the charges laid were preferred, why other charges were not made, why charges were upgraded or downgraded or why a person was not charged in the first place. I think they would be sensible reforms. If we are not going to get them through this bill, then I would like to see the government bring back some amendments to the victims of crime legislation so we can deal with them.

The Hon. P. MALINAUSKAS: The government understands Mr Parnell’s position but, in quick reference to one point that he made in his most recent remarks, is it is important to note that, for instance, section 9A of the Victims of Crime Act provides:

A victim of a serious offence should be consulted before any decision is made—

(a) to charge an alleged an offender with a particular offence; or

(b) to amend a charge; or

(c) to not proceed with a charge;

Those entitlements already exist.

Amendment carried; clause as amended passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) ( 18:14 :17 ): I move:

That this bill be now read a third time.

Bill read a third time and passed.

At 18 : 16 the council adjourned until Thursday 17 May 2017 at 14 : 15 .

See full session on Hansard

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