Bills

Summary Procedure (Indictable Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 February 2017.)

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:03): I am continuing on from the debate that concluded towards the end of the day when we were last here. Before getting into the detail of the matter, this set of proposals, which includes both the summary offences (major indictable) reform and the sentencing reform, has been the subject of an enormous amount of consultation with all of the interested players over a couple of years, so there is nothing here that has not been the subject of a great deal of discussion and there has been an extensive consultation process.

I want to go into a little bit of detail because it is necessary when having regard to what was said by the deputy leader last time. Before going into that, I make the observation that we have, in formulating these packages, based our proposals on taking the existing South Australian practice and procedure and seeking to modify it in order to achieve significant improvements. We have not gone to the legislative supermarket and picked out a product sitting somewhere on the shelf. We have actually done the hard work of working things up, in effect, from the ground.

There were several matters raised by the deputy leader on the last occasion that were demonstrably incorrect and indicate a failure to understand both the substance of the reform and the content of the bill before us. The deputy leader spent some time reading out letters received from various members of the defence bar raising concerns about various provisions. The defence bar is perfectly entitled to have a view about these matters, but they are expressing a view about what is, in effect, their business and they are expressing that view from that perspective. There is nothing wrong with that. It is entirely reasonable. Indeed, we have been listening to members of the defence bar at some length, but we need to bear in mind that they are not exactly dispassionate observers.

In any event, after reading out a number of those letters, some of which contained matters of substance and some of which did not, it seemed to me that the deputy leader has not appeared to realise that the letters from which she was reading raised concerns about provisions appearing in a previous consultation draft version of the bill which was released last year. The government considered the concerns that were raised in correspondence in response to that draft bill last year, as well as other feedback, and changes were made as a result of that process—and that is how you would expect consultation to work.

Indeed, I recall meeting on more than one occasion, I think, with Mr Boucaut and other members of the criminal bar to discuss matters and I can assure the house that modifications were made to the consultation draft taking into account feedback that we received. As a result, many of the provisions which were criticised by the deputy leader either do not say what she says they say or, in some cases, do not exist. In fact, some of her outrage (contrived though it might have been) was in respect of matters which did not find their way into the bill before the parliament.

When I raised it on the last occasion, I said I would try to go through the deputy leader's comments to correct inaccuracies in an orderly fashion, and I will try to do so insofar as it is possible to do that in response to her contribution. The deputy leader suggested that there are five main areas of reform and proceeded to give a brief summary of those. It seemed to be the case that she was reading the division heads in the bill and suggesting or implying that they were separate areas of reform in this package.

Obviously, how the deputy leader proposes to go about her contribution is a matter for her, but I do not think it is reasonable to characterise all of the elements of this package as being a departure from current practice. The first area that she referred to was clause 100, which deals with informations. This substantially re-enacts provisions that already exist in the Criminal Law Consolidation Act and in the Summary Procedure Act 1921 in order to marry up the procedures into one bill setting out criminal procedure. We have had some feedback from the Chief Justice about the drafting of these provisions, and, in the committee stage, we will be moving some housekeeping amendments which essentially ensure the status quo remains, as was our intention all along.

The deputy leader then said that the fourth area of reform is the forum for trial or sentence, and, referring to clause 116, in reference to major indictable offences, that a magistrate can hear a guilty plea if the prosecution and defence agree. Again, clause 116 substantially re-enacts existing sections 108 and 114 of the Summary Procedure Act and provides minor clarification of the process, but it is not a substantial area of reform.

Whilst I am on this and before getting to the substance of the reform, I also noted that the deputy leader spent some time proffering suggestions about the merit of rolling lists and a docket system. I need to make it clear to members that were it to be the case that the parliament sought to impose or regulate the manner in which the courts disposed of the matters before them (matters which I am absolutely confident the courts would consider to be entirely within their domain), I think we would, perhaps, find ourselves being quite justifiably accused of overstepping the boundary between what is legitimately a matter for the parliament and what is legitimately a matter for the courts.

The deputy leader then refers to the second and third areas of reform as the 'pre-committal process' and the 'committal process', and this is indeed an area in which significant changes are proposed. Those areas of change were set out in my second reading speech, and I am obviously not going to set them out again. However, the complaint that the deputy leader makes—that 'a lack of early disclosure creates the fundamental flaw in the approach the government has taken in respect of this reform'—is wrong. I will point out a few elements here.

First of all, the proposals suggest introducing a tiered prosecution disclosure scheme which will allow for enhanced earlier disclosure of primary evidence to defendants. I would like to make that point really clearly. The first step in these reforms is that the prosecution gives more to the defence: more information and more detail, and it gives it right at the beginning. That is the first step in the process—requiring major indictable matters to be the subject of charge determination by the Director of Public Prosecutions prior to the commencement of committal proceedings, which is intended to make sure that the right charges are the charges that are actually in place early on. This is intended to avoid downgrading, or upgrading for that matter, of charges later in the proceedings.

We also intend giving the courts the discretion to set a realistic adjournment time frame that reflects the needs of individual cases and reduces unnecessary court appearances for indictable matters when they are in the Magistrates Court. Under these measures, the prosecution will be required to provide a document containing a brief description of the allegations on or before the first court appearance. In most cases, this is likely to be the narrative portion of the police apprehension report, which is usually provided as a matter of practice.

The inclusion of this requirement in the bill is in direct response to a request by the Law Society of South Australia and the Bar Association to assist them in providing early advice to their clients. It was a sensible suggestion and we agreed to it and adopted it. The preliminary brief will contain key evidence available to provide elements of the offence that is alleged to have been committed. In some cases, this may include evidence that is technically not yet in an admissible form, but which is available in a timely way, is reliable and is sufficient for both the prosecution and the defence to understand what evidence exists and is capable of being provided, should the matter ultimately go to trial. Again, this ensures early disclosure of the nuts and bolts of the prosecution case to assist a defendant to know the case against them.

The deputy leader said that because the government has indicated that a major purpose of this reform is to encourage early guilty pleas, it is implied that the government was trying to penalise defendants because it is all their fault. The government has said nothing of the sort. The point of this reform is to have the whole system working better. Yes, that does include facilitating pleas earlier, where pleas are appropriate to be made. We have not said this is solely the fault of the defendant. That is precisely why we have introduced the tiered disclosure scheme and case statements by the prosecution, to ensure the defendant has all the material they need to make a decision about their plea and to make that decision early.

The deputy leader said the bill removes a requirement for a defendant to make a plea during a committal hearing. I am not sure why she thinks this, but it is clear that this requirement continues under clause 113. The deputy leader also says that clause 107 prohibits pre-committal subpoenas. As she rightly points out, this has caused much concern and is the basis of submissions from a number of key stakeholders.

However, she seems to have failed to notice that, as a result of those submissions, the government has already amended clause 107 to address the concerns raised. She says she has looked at the amendments we filed, and because there is no filed amendment relating to subpoenas she will be opposing the clause and enabling the filing of an amendment in the other place. The reason there was no filed amendment was that the government had already amended the clause. We did it before we introduced the bill and long before she complained about it.

Clause 107 of the bill before this parliament clearly provides that a subpoena can be issued before the completion of committal proceedings in various circumstances. For example, a registrar can continue to issue subpoenas, as they do now, if the defendant is charged with a minor indictable offence and is not electing for trial in a superior court, or if it is to compel a witness to give evidence, or if each party to the proceedings and each person to whom the subpoena is directed consents to the issue. If any of the above do not apply, the parties seeking the subpoena must simply apply to a magistrate for an order for the subpoena.

That is what the bill says. It does not prohibit defendants getting the information they need. Instead of just being able to have the registrar rubberstamp a subpoena—which is basically how it works now, putting the onus of objecting to a subpoena, which is vexatious or a fishing exercise, on a party who has been served with it after the event, and requiring them to bring an application to have it set aside—the party asking for material will instead, in the absence of an agreement from other parties, need to be prepared to justify why they need a subpoena before it is issued, instead of afterwards. Those who are seeking documents at this stage, to which they generally should have access, will not be stopped from so doing. I cannot elaborate on this point any more. It is fairly simple, if you read the clause.

While on the topic of subpoenas, I mentioned that clause 126, which deals with subpoenas in a superior court, has also been amended in response to the submissions of various interested parties whom the deputy leader has mentioned. Again, the registrar can issue a subpoena if it is to compel a witness to give evidence or, if the parties agree, as long as the party has filed their case statement. If the parties do not agree to the registrar issuing a subpoena, a master or a judge has to decide whether the subpoena sought would be likely to provide material of relevance to matters that will be in issue at the trial. And, it is in the interests of justice to issue it.

I am not sure why the deputy leader thinks that parties should be permitted to subpoena material that is not relevant to matters in issue at the trial. If a defendant has filed a case statement, for example, indicating that self-defence is to be raised, and they seek to subpoena CCTV footage from the pub to show the altercation—this is in the rare situation the police have not already seized the footage and provided it to them—they will be able to get it. It is clearly relevant.

The deputy leader makes much of complaints raised by various interest groups complaining that the rules that apply to prosecution and defence are not equal; that the consequences for noncompliance are one sided. Again, this complaint appears to be based on the previous version of clause 125. She has suggested that, in respect of the obligations to provide a case statement, there is no penalty whatsoever if the prosecution does not do the right thing but there are penalties on the defendant. This is simply not the case.

The court may refuse to admit evidence sought to be adduced by either party—and I emphasise 'either party'—who has failed to comply with their disclosure obligations. The court may grant an adjournment to either party if the other party has failed to comply and this prejudices their case. Again, as for the subpoena issue, the government has already consulted with those interest groups. They voiced their concerns about various aspects of the provisions, we listened and we changed it, even before we brought it to the parliament. It would seem that the deputy leader has not bothered to read the bill laid before the house and appears to be riding on the coat-tails of complaints made about a previous draft of the bill, which have already been taken into account and amended accordingly.

We wrote to all of those interested parties in November 2016, providing them with a copy of the bill after we had made changes based on their concerns. We invited further comments after we had taken into account their initial concerns, and they did not come back to us and say, 'There is still an issue,' or, 'The change you made did not fix the concern we had.' The only response I can recall was a homily from Mr Edwardson QC, which came on the evening before the debate and did not substantially raise matters continuing to be of concern, other than a reiteration of the earlier comments about the earlier bill.

The deputy leader suggests that, rather than the process set out in the bill, the most effective way of dealing with inadequate compliance by any party to proceedings is to direct that they pay the legal costs of the other party and their costs as well. I will come back to this ridiculous suggestion, but first perhaps it would help if I explained in brief how the criminal process currently operates. The prosecution has a duty to disclose its case to the defendant. It does not get to pick and choose what to disclose. It must disclose whatever it has that is relevant to the case, even if it is helpful to the defence and unhelpful to the prosecution.

That is the way it should be, for the prosecution has the burden of proof and the defendant is presumed to be innocent. This means the prosecution must obtain witness statements from any and every witness it proposes to call. Those witness statements must set out the detail of what that witness will say if the matter goes to trial, but the witness statements themselves are not evidence. The witness must still come to court and give oral evidence—leaving aside for the moment recent arrangements surrounding vulnerable witnesses and suchlike.

The defendant comes to court knowing in detail what the prosecution case is. They know what each witness is going to say. They know this months, sometimes years, in advance. If it so happens that a prosecution witness deviates from their statement, whether that is because they are being dishonest or their recollection has changed or they become confused during cross-examination, the defendant's counsel is able, under the existing law, to cross-examine them about the deviation. This is known as a prior inconsistent statement. That is how the system currently works and has worked for a long time.

The change in story can then become the subject of a careful comment to the jury—let me be clear—as a comment by the defence about the reliability of a prosecution witness. If the witness has a good explanation for the change in the story, the comment may not be made. It may not be helpful to the defendant's case. But if there is no good reason or it points to a possible inconsistency in the witness's account or it prejudices the defendant in any way, you can guarantee that prior inconsistent statement will be commented on by the defendant's solicitor or the trial judge or both when it comes time to address the jury. I repeat: this is how the law currently operates and will continue to operate under the proposed changes.

Let us consider the current position for the defendant. The defendant has a right to silence, so, of course, that means they do not have to provide a statement to the prosecution about what they say happened. Some defendants provide a statement of sorts to police, perhaps without even having had legal advice. If they do but they change their version at trial, that too can become the subject of comment to the jury. But remember that the defendant does not have to talk to the police, and the defendant does not have to give evidence.

However, under the existing law, the defendant already has to give prior notice of some matters—for example, alibi evidence or expert witness reports. It is common for a comment to be made to the jury under the current law to make sure that the jury does not draw an adverse inference from the silence of the defendant. That is right and it is fair and it is how our system of justice operates. The onus of proving a criminal charge is fairly and squarely on the prosecution, not the defendant. We are not arguing about that, nor are we attempting to change that, but because of that the prosecution is already open to having comment made to the jury if anyone of tens, or, in some cases, hundreds of witnesses deviate from their account.

The defendant is not generally in that position because they do not have to provide their own statement or statements of any witness they might call in advance of the trial, with some exceptions, as I have mentioned before. What we are doing here is saying, if the defendant, for example, says in their case statement, made after there has been an opportunity to obtain legal advice, that they are relying on self-defence (in other words, they are admitting that they were there—they may be admitting, for example, they threw the punch—and they were just saying that they were acting in self-defence) and they go to trial and say, 'No, I've changed my mind, I wasn't there, it wasn't me, you've got the wrong person,' why shouldn't the jury know about that?

If the prosecution has not allowed evidence from five eyewitnesses who say they know the accused and saw him there, or the DNA evidence that proves his or her blood was left behind at the scene of the crime, suggesting they were there, and the prosecution has conducted its case in this way because the defendant said those things were not in dispute, there is no need to prove those things, then why should the jury not be told about that if the defendant turns around and changes his story at the last minute? Or, if the defendant says it was not them, they were not at the scene of the crime, but later comes along and runs a defence of provocation, why shouldn't the jury hear about that if the defendant does not have a good reason for the change in story?

The deputy leader has criticised the provision that permits comments to be made to the jury if the defendant does not comply with his or her disclosure requirements or conducts their case in a manner inconsistent with their case statement, as being a new and a novel approach to punishment. It has nothing whatsoever to do with punishment. There is nothing new or novel about it. I have just explained that the current system already permits comments to be made in some circumstances of prior inconsistent statements. Things are currently skewed against the prosecution due to the nature of their existing disclosure obligations.

Under the bill, the defendant is not expected to provide disclosure of their case, even remotely close to the level of detail that already applies to the prosecution. The deputy leader is correct in suggesting that the playing field is not level, but the very onerous obligations are, and will continue to be, on the prosecution, in keeping with the nature of the adversarial criminal process. There appears to be a misguided belief that the provision of permitting comment to be made will be used in a way that is unfair to the accused.

Firstly, it must be noted that comment can only be made to the jury with the permission of the court. This is an important safeguard. It ensures those fears that the provision will be misused will not be realised. It means that the trial judge will decide whether such comment is appropriate before it is made and, in doing so, will take into account whether there is, in fact, a good reason for the departure from a case statement or good reason for noncompliance with the disclosure requirements. Trial judges are required to make decisions about material going before the jury on a daily basis throughout the trials before them. They weigh up whether evidence is likely to be more prejudicial to an accused and probative on a daily basis and we trust them to do so.

There is no reason to think that they will not continue to weigh up the competing issues and make correct decisions in this context. I point out that both New South Wales and Victoria have similar, though different (having regard to their differing circumstances), provisions, permitting for comment to be made to the jury in appropriate circumstances, with the leave of the court. New South Wales has had their provision since 2013 and Victoria since 2009. The sky has not fallen in in those jurisdictions and we have not heard of outrageous miscarriages of justice as a result. In New South Wales, the Criminal Procedure Act 1986 sets out that, after an indictment is presented or filed in proceedings in the District Court or Supreme Court, the prosecution is required to submit a prosecutor's notice setting out the case against the accused.

The defence is required to serve and file a response to the notice. This is in New South Wales, and has been for some time. The prosecution must then file a prosecutor's response to the defence, responding to any issues raised. Pursuant to section 146A, in circumstances where the prosecution has complied with the requirements for pre-trial disclosure and the accused has failed to comply, the court, or any other party with leave of the court, may make such comment at the trial and the court or jury may then draw an unfavourable inference.

This particular sanction is similar to the sanction allowed for in clause 125(6) of the bill currently before us. The provision seeks to ensure that a defendant cannot game the system if the accused tells the prosecution they are going to say one thing and then gets to court and says another. Then, in the absence of a good reason for the departure, why should the jury not know about that?

While on the topic of existing trial procedure, the deputy leader made comments suggesting that a defendant is usually kept in custody once they are committed for trial, even if they have been on bail up to that point. Although bail is not the subject of this bill, it would be remiss of me not to correct this assertion. Bail is not revoked upon being committed for trial unless there is some other independent reason for revoking it.

I now turn to the suggestion that a costs order would be an effective way of dealing with inadequate compliance. I understand the appeal of that suggestion to a lawyer who does not practise in criminal law.

Ms Chapman: You never have.

The Hon. J.R. RAU: That might be—

The DEPUTY SPEAKER: Do you need my protection?

The Hon. J.R. RAU: —no, I don't—why I understand it. I agree that in the civil jurisdictions, cost penalties can be very effective. Litigants in those areas are often fighting over money in one way or another, whether it be distribution of property, a claim for entitlements or a claim for damages. The criminal jurisdiction, however, is quite different. Perhaps most obviously, it should be noted that a very large proportion of criminal defendants are of very limited means. That is why the Legal Services Commission made over 12,800 grants of legal aid in the 2015-16 financial year.

If you do not have any money or assets, such that you cannot pay for your own defence, then you are not going to be swayed to comply with court orders by a costs order that you know you cannot be forced to pay. Not only is there no point in making costs orders if people cannot pay them but there is no incentive for the indigent offender not to incur them. The deputy leader's comments only make sense if she is talking about costs orders being made personally against lawyers, based on defaults by their clients over which they have no control. I am sure the defence bar would love to hear more about that from the deputy leader.

As an aside, the deputy leader complains about provisions in the previous draft permitting the imposition of costs orders on solicitors. I do not know what provisions she is referring to. She goes on, in relation to case statements, to suggest that the obligation for continuing disclosure is a problem because it somehow allows the prosecution to get away with filing an inadequate case statement in the first place.

I have already explained the process that applies. The prosecution is already obliged to disclose everything. The case statement has not changed that. It just means that the prosecution now has to prepare a case statement in addition to that disclosure. At the moment, the defendant's solicitor has to read all the statements. They should obviously still do that, but now they will also have a summary of the prosecution case provided to them.

It is a fact of litigation that sometimes new material comes to light; it must be disclosed. It should be remembered that this provision applies to both prosecution and defence. Should we be holding the prosecution to a case statement, notwithstanding that new evidence has come to light, while letting only the defendant change their position? It is clear that the prosecution must disclose their case and the evidence they intend to lead to prove it to the defendant before they should be called on to advise whether they dispute any part of it or intend to run a positive defence. The government is not willing to impose a blanket guillotine order that may prejudice the interests of the community and victims of crime unfairly either.

In relation to the timing of sentencing discounts, as I explained in my second reading, the timing of the relevant maximum discounts has been amended in this bill (and those amendments are replicated in the Sentencing Bill to be consistent) in order to correlate with the procedural changes proposed. It is probably not surprising that some interested parties have opposed this because the changes mean that a defendant will generally need to plead guilty earlier in the process to attract the 30 per cent and 20 per cent discounts. This really needs to be viewed against the procedural changes in the bill, which include the provision of more information to defendants at earlier times. The availability of the maximum 40 per cent discount remains unchanged.

The deputy leader made some comment that it was too early to conduct the review into the operation of both the guilty pleas act and the supergrass act. She also commented that it may be too early in the operation of the supergrass act to expect significant results. That is due to the nature of what that act was trying to achieve and really has no bearing on the reform, the subject of this bill. However, the impact of the guilty pleas act, which came into effect in March 2013, was ripe for review in October 2015, some 2½ years after the introduction of the scheme. As the reviewer said, the results of the guilty pleas legislation demonstrated a significant impact in that time, and it cannot be said that aspect of the review was premature.

I want to finish by responding to the point the deputy leader made, that the new requirements are not consistent with providing just and equitable access to a trial process to protect the interests of the innocent. She does not go on to explain how the interests of an innocent person are even remotely compromised by this reform, and that is because they simply are not.

The Bar Association stated in their submission that a 'criminal trial is not and cannot be considered a pursuit for the discovery of the "truth"'. I read that again: a 'criminal trial is not and cannot be considered a pursuit for the discovery of the "truth"'. Victims of crime and the public would be very surprised to hear that, but that attitude does help to put some of the comments that have been made into context. I, for one, am interested in the criminal process getting to the truth. It should not be a cynical game of gotcha and evidentiary concealment. The eminent jurist, Sir Robin Auld, who has held a myriad of senior judicial appointments in the United Kingdom, has said:

A criminal trial is not a game in which a guilty defendant should be provided with a sporting chance. It is a search for the truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring the defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles.

There is nothing here which removes the right to silence. The defendant is not obliged to answer police questions during the investigation stage. In fact, the defendant is not required to give evidence at all. The defendant remains entitled to put the prosecution to proof and to remain silent throughout, requiring the prosecution to prove each and every element of the matter. The burden of proof remains on the prosecution.

Asking the defendant to indicate which aspects of the trial are in dispute and which aspects are not after they have received a prosecution case statement and the prosecution evidence, as well as having had the opportunity to seek legal advice, does not alter the burden of proof. Asking the defendant to identify a positive defence which they intend to raise at trial does not change the burden of proof, just as it does not change the burden of proof when they raise it at a trial now. Bringing the timing of that disclosure forward to pre-trial instead of during trial allows the parties to narrow the issues and focus trial preparations on those issues, rather than wasting time preparing for every possible permutation of the facts. There is nothing in the bill which removes the right to silence.

The deputy leader, frankly, appears to be preoccupied with the spoiling politics of this argument. Her position is formulated, essentially, at the expense of victims of crime and the proper use of public resources in the interests of the broader community. There is a wide acknowledgment that our criminal justice system needs reform. This proposal represents a significant part of this reform.

I invite the deputy leader to join me in taking the lead in this matter. This reform has undergone rigorous consultation and had balanced and passionate views of many aspects of the criminal justice system heard. What we have seen so far here from the deputy leader is putting an arm around the defence bar at the expense of those reforms. She has continually blamed the government for not acting on court delays, yet offers no constructive solution. This is a constructive solution.

The deputy leader would be better placed to support this proposal for the benefit of the entire criminal justice system and the broader South Australian community.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: I indicate on behalf of the opposition that we will support clause 1. The general reform and thrust of what this act is to cover, as outlined in the proposed title, is a model, as the government presents and, largely, as is accepted, to introduce a regime, of which there is, as far as possible, early disclosure in major indictable offences. The opposition supports that ethic.

What we have highlighted is that the government's aspiration to reduce its trial times and to reform the criminal justice system in this model is inadequate without dealing with a whole number of other issues, which we have listed for the government and which need reform.

We accept the general principle that the criminal justice system is open to reform, the model of which we have to ensure both prosecution and defence do disclose sufficiently, whether it is early or otherwise (ongoing is the general principle), to give an opportunity for early resolution of cases. That can be an instructive and useful instrument.

It appears, however, that the government, in particular the Attorney, are either so ignorant or so arrogant on this issue that they cannot even see the further submissions that have happened since we have been here in this house debating this matter from representatives in the legal profession who, inconsistent with his statement today, suggest that the areas of concern in some way have been modified in the bill presented to the parliament and that there is no justification for complaint anymore. That is a superficial and insincere comment, and its approach is wholly rejected.

He only has to read today's paper, he only has to read the further correspondence that has been presented to the Attorney since this bill was tabled, to understand that it is not a bill that has reflected, or given consideration to, the concerns raised by those largely in the legal profession.

We all accept that the whole criminal justice system is to ensure that we acquit the innocent and convict the guilty—that is obvious. What we are looking at here in this bill is how to introduce a model of procedure, where there are obligations on the parties who are being represented in that process in the court, as to how they are to behave and what can be improved before we even get to the acquittal or the conviction stage at a trial.

I think the Attorney needs to reflect on the voice of opposition to key areas of this bill. Whilst most of it is accepted, the key areas of this bill remain unacceptable and put the general public at risk. Bear in mind that the representatives who have been putting to the government and to us these submissions that have been outlined to this parliament are the ones who ensure we protect everyone who comes before the criminal justice system.

We cannot have a system where the innocent cannot be protected, that they will be identified and they will be protected. We have certain rules for both sides that are exclusive to them. We have the right to silence for the defendant; the Attorney has repeated that. It is not even in this bill; it has nothing to do with this bill. We have special rules that mean that if an indictable offence is prosecuted and it is ultimately withdrawn—a nolle prosequi is entered, or there is an acquittal—the defendant, the person who has been acquitted, cannot come back and get a costs order. It is a rule that is exclusively to their detriment.

What we are talking about here is a process where there is room for improvement. Everyone agrees that there are aspects of this bill which provide that improvement, but there are key areas about which the Attorney continues to put his head in the sand and refuses to accept. To hear today that there is some kind of accommodation of this in the bill that has been presented to the parliament is completely and utterly false and a misdescription of what has been continually presented to him. Take the blinkers off, take off the earmuffs and understand that this is a very serious issue. Those who are innocent and yet to be charged need to be protected here in this parliament. He ought to understand what his responsibility is in that regard.

We also looked at the question of how we improve the model in the whole process of the cases. We were asked as a parliament 10 years ago, in a 2005 bill on procedure in relation to criminal processes, to look at what should be the obligation, to try to codify this disclosure process in some way during the trial, including early disclosure, and to identify issues in dispute, just like we do in civil cases, but to make sure that we kept a fair model.

At that time, there was a regime put in place to which there had been some improvement. Most of it failed, but it was to set out a model which was to provide some improvement. Again, the government continued to ignore the submissions being put, even by the Director of Public Prosecutions, repeatedly in the annual reports, and I will refer to that in one of the amendments that is coming up. I make the point that we are not here to object to there being improvement—in fact, we support most of the bill—but there are certain aspects of this which are unconscionable and unacceptable, and we will continue to fight for those.

Clause passed.

Clause 2.

Ms CHAPMAN: Has the Attorney yet prepared regulations to be implemented with this, and/or are there draft rules of court to be implemented with it?

The Hon. J.R. RAU: No, we do not have any regulations. Obviously, it would be a bit presumptuous to have regulations prepared before the bill has even gone through this house, let alone the other one. As for the rules of court, that is entirely a matter for the court. I presume the court will be watching with interest the way in which the bill proceeds and, assuming the bill passes in the contemplated form, I am confident the rules committee of the court will turn their mind to what, if any, rule changes are required. However, at this stage neither of those pieces of work are necessary.

Ms CHAPMAN: Have those who are going to prepare each of these sets of subordinate procedures and regulations yet examined the New South Wales and Victorian rules of court and regulations?

The Hon. J.R. RAU: I certainly have not gone into great detail at that level. I emphasise again that the rules of court are a matter for the court, no matter what school of thought you belong to in the many schools of thought about where the separation of powers lands, where the dividing line is between the parliament and the court. As I said before, I personally think the idea of rolling lists is a good idea. I think the idea of docket systems is a good idea, but my view is irrelevant because I am not making the rules of court, and I am in the happy position of having that opinion and never having to implement it because I am not sitting in there.

Those are things for the court, and I am not going to wade into that at all. As for the regulations in New South Wales, I have not looked at them in detail. However, some months back I had a very useful conversation with the New South Wales Director of Public Prosecutions about how their system works, and his views and experience were one of the factors that we took into account, amongst many other things, including submissions from the defence bar here, when amending our draft bill.

Assuming the bill goes through in the current form, I think we would be talking to colleagues in New South Wales and, to some extent, in Victoria. Victoria has its own way of doing things which is not exactly transferable to here, but to the extent that we can pick up things there, we would obviously be talking to them too. We have not done any of that work in detail.

The other point is that, given the amendment that I have foreshadowed to clause 7, much of what would potentially have been a matter for regulation will become a matter for court rules. So that means our role, inasmuch as we have a role in regulating this matter, will be less than would otherwise have been the case.

Ms CHAPMAN: Apart from having a conversation with the DPP in New South Wales and indicating that you personally have not done much about this, you did conclude your statement with 'some work that we had done'. I assume that to be your advisers on the matter. I note the foreshadowed amendment to supplant some of the regulatory material into the rules of the Superior Court, in the amendments we have seen. Have you had any discussion with the Chief Justice or the new Chief Judge of the District Court in respect of rules of court?

I heard you, presenting in response, that some of these amendments were as a result of discussion with the judiciary as to whether they have turned their mind to rules of court. What we are really looking to see is when we expect that this bill is proposed to be proclaimed, if we do not have any machinery material to get it started.

The Hon. J.R. RAU: I have had conversations, in particular with the Chief Justice, about this matter, and it is fair to say that the clause 7 that we are proposing is a direct consequence of discussions I have had with him. I have come to the view that given that the court, on a daily basis, has to manage these matters, it is appropriate for us to minimise the extent to which the parameters here are circumscribed by the parliament, and give the court and the court rules work to do.

Exactly how long it will take the courts to do these things I do not know, but I can say that my observation of the courts is that their capacity for drafting rules is significant. The Supreme Court has a formidable output of rules, and I have no doubt whatsoever that the new head of the District Court and the current head of the Magistrates Court will turn their mind to these matters quickly. I have every reason to believe they will regard this as a priority matter, so I would not have any expectation that there would be any inordinate delay created by the need for these rules to be prepared.

Ms CHAPMAN: Is it the Attorney's intention to seek that this bill, once it has gone through the process of the parliament, be proclaimed in the ordinary course, or is it proposed that it will await proclamation until after at least draft rules are circulated?

The Hon. J.R. RAU: Obviously—it seems to me, anyway—the scheme, as contemplated, cannot work without rules. Assuming the thing goes through, we would be saying to the courts, 'Look, we have now got this through. Here is the known quantity and here is what is now the new law. We are at your disposal to be of whatever assistance you may require of us to assist you'—

Ms Chapman: You have it proclaimed, so there will be no delay in the proclamation?

The Hon. J.R. RAU: As soon as we can make sure that this thing is functional we will proclaim it, absolutely.

Ms Chapman interjecting:

The Hon. J.R. RAU: They will have to be prepared before we can proclaim it, otherwise we will only have half a thing going.

Clause passed.

Clauses 3 to 5 passed.

Clause 6.

Ms CHAPMAN: I move:

Amendment No 1 [Chapman–2]—

Page 6, lines 18 and 19 [clause 6(1), inserted definition of case statement]—

Delete the inserted definition of case statement

This deletes the inserted definition of case management, similar to clause 2, which deals with an interpretation reference to the defence case statement, and then to deal with amendments Nos 2, 3 and 4 which, again, are minor amendments to deal with the proposed reform we have for case statements, which is largely outlined in number 11 of my amendments. I indicate I will not be speaking at length on those and we will deal with them at clause 11, so I ask that the amendment No. 1 in 178(3) be put.

The Hon. J.R. RAU: First of all, the amendments, which were actually filed today, are significant. This is an interesting example of what we are trying to stop happening in the courts, which is last-minute filing of things and last-minute changes in direction. What we effectively have here is a last-minute proposal—inspired I think I know by whom—which, it seems to me, largely attempts to pick up Victorian practice and substantially alters this legislation.

Because it has only been filed today, I obviously have not had time to study it all in detail. For that reason, I will not be supporting any of it but, in so doing, it may be that there are elements of this that are worthy of consideration and, given the time between the houses, I may do that, but I want to make a couple of points that are readily apparent at the moment.

There is, as I see it anyway, a requirement that the prosecution opening and notice of pre-trial admissions be filed 28 days before trial. Can I just make it absolutely clear that that is no good. It is no good because it is way too late. If that is the first articulation of what is going on, it is occurring so late in the piece that we are not going to make any fundamental improvement here at all. There is then a requirement for a defence response 14 days before trial. Again, the reality is that you cannot just take a criminal trial, or probably even a civil trial for that matter, out of the list at a few days' notice.

I will have a look at these things. It appears that somebody has got a photocopier and copied what goes on in Victoria, notwithstanding the fact that Victoria has a fundamentally unique and different underpinning of criminal justice procedure that has evolved independently of us since colonial days. Does that mean that everything that happens in Victoria cannot be of benefit to us? No, it may be that there are some things in here from which, if we have a look at them and think about them, there may be some benefit. I am not dismissing it as being of potentially zero value, but if the proposal is fundamentally, as it seems to be, to completely destroy these changes in terms of time lines, disclosure, subpoenas, etc., then we are just not going to be able to agree on that.

Because I have only just seen it, I do not really want to be any more definitive about the position presently, so I will be opposing these measures. However, in opposing them, I make the point that that does not mean I am not prepared to have ongoing discussions. If there are some elements there that we can usefully improve, then that would obviously be something I would be open to.

Amendment negatived.

Ms CHAPMAN: I move:

Amendment No 2 [Chapman–2]—

Page 6, lines 20 and 21 [clause 6(2)]—Delete subclause (2)

Amendment negatived.

Ms CHAPMAN: I move:

Amendment No 3 [Chapman–2]—

Page 6, lines 24 and 25 [clause 6(4)]—Delete subclause (4) and substitute:

(4) Section 4(1)—after the definition of minor indictable offence insert:

notice of pre-trial admissions—see section 127C;

Amendment negatived.

Ms CHAPMAN: I move:

Amendment No 4 [Chapman–2]—

Page 6, after line 28—After subclause (5) insert:

(6) Section 4(1)—after the definition of summary offence insert:

summary of the prosecution opening—see section 127C;

Amendment negatived; clause passed.

Clause 7.

The Hon. J.R. RAU: I move:

Amendment No 1 [DepPrem–1]—

Page 7, lines 14 and 15 [clause 7, inserted section 100(2)]—Delete 'will not be open to objection in respect of its form or contents if it is framed in accordance with the requirements (if any) prescribed by the regulations' and substitute:

and laid in a court will not be open to objection in respect of its form or contents if it is framed in accordance with any requirements prescribed by the rules of that court

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 2 [DepPrem–1]—

Page 7, lines 16 to 18 [clause 7, inserted section 100(3)]—Delete inserted subsection (3)

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 3 [DepPrem–1]—

Page 7, lines 28 to 31 [clause 7, inserted section 102(1)]—Delete inserted subsection (1) and substitute:

(1) Subject to this Act, charges for 2 or more offences may be joined in the same information if those charges are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character.

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 4 [DepPrem–1]—

Page 8, line 25 [clause 7, inserted section 102(5)(b)]—After 'proceedings' insert:

(provided that a court may only direct that charges contained in separate informations be tried together if the charges could, in accordance with subsection (1), have been joined together in the same information)

Amendment carried.

Ms CHAPMAN: I move:

Amendment No 5 [Chapman–2]—

Page 13, lines 1 to 17 [clause 7, inserted section 107]—Delete inserted section 107

This amendment deletes the proposed inserted section 107, which introduces a new regime for pre-committal subpoenas. Whilst I canvassed this during the second reading debate, I wish to present the following remarks for consideration. The government's position is that it is not abolishing the right to pre-trial subpoena use to ensure early discovery of the facts of the case but is in fact allowing it, but in certain circumstances.

There are two gatekeeping processes under the proposed section 107; that is, the registrar may only issue a subpoena—which currently is without conditions in its law—with three requirements: firstly, in a circumstance where the registrar is satisfied that the defendant will not be electing, in accordance with the rules, for trial in a superior court; or that the subpoena is issued for the purpose of compelling a witness to give oral evidence in committal proceedings; or that each party basically agrees.

Essentially, that means that it is a process that is highly restricted. The government says the alternative under this new regime is that, if you are unhappy with that or you do not get the resolution you want from the registrar by the issuing of the subpoena, having gone through that process, you can go to a magistrate—not necessarily on appeal; you can go straight to the magistrate, in fact—under this proposal and set out your case as to why you need to have a subpoena issued.

This new process is in itself utterly absurd in the envelope that one of the purposes of the subpoena is to ensure that the prosecution has disclosed all that they have that is relevant to this case. The practical application of this is really important. How does the defence or the accused person know what is in the possession of all the repositories of evidence that may or may not be presented at some later date? They have to assume at this stage, if you are going to rely on paragraph (a)(iii), which is the consent arrangement, that the DPP and/or the police prosecutor have produced everything that is going to be relevant.

The fact is that, by virtue of how this operates, unfortunately that is frequently not the case, not necessarily because of any mala fides of the police prosecutor or anyone in the police department or the DPP but because of what actually happens in a serious offence. The police are involved and they collect the evidence. As the Attorney points out, they might take several statements from witnesses, especially in a circumstance where witnesses give one statement, then the police and other investigators find other material and go back to some of these witnesses and get extra statements.

They follow through when they have the forensic material. They might get further material, which they collate. They do not collate it all through one police officer's desk. They do it sometimes in multiple areas across the police force, with their other investigators and forensic people. It is an exercise in which the responsible identification process of the investigation by those personnel is frequently at multiple locations and through multiple offices. Sometimes that information does not all come together. Sometimes information comes to the attention of those investigative officers that slips through the net. It is not identified or it does not come into some central pool, and it is not then even put in the brief that goes to the DPP.

This is the weakness in the system of saying that you have a high bar that you have to jump over to be able to get access to material that should have been disclosed but was not. It is not necessarily anybody's fault, especially at the primary level of those undertaking the investigation. They have done their job. They have interviewed witnesses, taken photographs and sent things off for forensics. They have done the hard slog of pulling together sufficient evidence for a decision to be made either to refer it to the DPP to make a decision to prosecute or indeed to present a case for others up the ranks to make those decisions.

All too often, as the Attorney well knows from cases that have been presented to him one after another by people who are doing this every day in the courts, commonwealth or state prosecution offices present material which they later find is not comprehensive or not complete and further material is presented at a later time. And what happens at the moment? Sadly, cases that have waited sometimes years to get on the list and come up for trial or come up for committal are put off. The witnesses go home, the defendant goes back to the prison, the lawyer goes back to his office, counsel goes back to their chambers, and they start all over again. That is what is happening as we speak. That is the real world.

If the Attorney wants any confirmation of this, he ought to have a look at some of these cases and see what has happened and understand that sometimes the DPP, who makes a decision on the primary information that is given to them that there is a case to answer, will make the decision to prosecute even without this other evidence, but then it comes to light months or years later. It might add to the prosecution, and the prosecution maintains the view, but they disclose it sometimes very late. Why does that happen? Because very frequently in these big cases the DPP allocates a file for preparation for trial at a very late stage in the process. That is unfortunate, but that is the real world.

One is not to deny, when dealing with serious criminal offences, the right of the state to protect its civilians against wrongdoers and those who are felons and who are doing the wrong thing and to prosecute. In fact, we protect them. We put an umbrella over them to say that they cannot even have a costs order made against them—that is how important it is in the process. But we are wasting trial days and times. We are inconveniencing people, not just the lawyers or counsel but judges, court officers and witnesses. Victims are waiting out there in the wings for something to happen and these cases are put off time and time again.

The real world is that the DPP has the primary carriage of these cases at the pointy end. From committal to trial, Senior Counsel come in and find further material, but they are late in the process and they are putting off these trials. Is that going to change? It will only change if the DPP is in a position as an office to allocate these cases at an early stage to deal with the management and carriage of these cases, not by some rule the Attorney puts in.

They need enough people down there in the DPP's office to actually do the work, conduct those searches and examine the material that has been put in a primary brief to them and investigate that to see the material that sits behind it. That is when that happens. When it does happen, other material comes to light in some of these cases but, unfortunately, it is too late to save state money or to save all these people this shocking inconvenience and sometimes deprivation of liberty if they are innocent. That is what we are trying to address. The Attorney has a situation now where that is critical to the process of early disclosure, even at the moment if it comes later than we want, because, at the very least, when senior people get that brief and conduct it, they are able to present that material.

At the moment, the subpoena process at least at a relatively early stage—that is, at the pre-committal stage—allows them to require that the prosecution team do that search, provide that information and present it for examination. That is what is so critical. For the Attorney to dismiss this as not a key and critical element of ensuring at least some of them the opportunity for early disclosure is completely bewildering. It is absolutely critical that we leave this process in the system, uncorrupted by such a high threshold of obligation to go through court processes on applications when they are in the dark about the extent of that information.

That is why we have the subpoena process. The Attorney might not have sat in criminal courts, but he ought to know that that is absolutely required if we to have the system that he and I both agree on is to make sure that we protect the innocent, that we prosecute the wrongdoers and that we ultimately acquit and/or convict as is required.

The CHAIR: You have moved your amendment so, if there are no further comments, we can put it.

Ms CHAPMAN: I present this amendment to ensure that we maintain a level of integrity in the system which at the very least, once you have a structure of case statement disclosure which comes later in the model—I do not think they have the right model but they could improve it and I am pleased to hear the Attorney indicating that at least he will have a look at it. He has had an opportunity to look at it; his whole department that is advising him in relation to this has had an opportunity to look at it; it has been operating in Victoria for a long time; it has been presented in submissions; he knows what is in it and he could have adopted it. However, let us at least keep a key element in protecting those who we need to protect.

The CHAIR: Do you have any remarks before it is put?

The Hon. J.R. RAU: Yes. This is going to be a recurrent theme, so we might as well have the conversation about it now. The situation with subpoenas is this: basically, everything the deputy leader said about the inadequacies of the present system I totally agree with. If you ask her, 'What is the problem?'—and I am saying that metaphorically—the problem is that people do things late instead of in a timely fashion, which means that everybody wastes money and time and everyone is inconvenienced, including witnesses, victims, the assets of the state being tied up having judges either hearing cases they should not be hearing or not being able to hear a case because the matter is adjourned, or whatever, too late—all those things. All those things come from people not concentrating early enough.

As for the subpoenas, I say this: there is nothing to stop a person getting a subpoena, either because they want a witness or because they have agreement, without going to the court at all—full stop. The second point is that if they cannot get an agreement from the prosecution that the subpoena they want is in some respect relevant to the matter that is before the court, then they have the opportunity to go to a magistrate in the first instance and ask for an order. They have a chance to plead their case. I make a very simple proposition here which should not be startling for anybody: if anybody wants an order of the court to be made against another person, is it not reasonable that the onus of persuading the court that that order should be made rests on the person asking for the order? Is there something revolutionary and crazy about that?

If I want an order for somebody to stop doing something, or I want an order to make somebody do something and that order has to come from the court, what is so crazy about saying, 'I bear the burden of going to the court and asking for the order'? What is so crazy about that? All we are saying is that the present situation is reversed, in that somebody who might have a problem, a legitimate problem with the order being made, does not even get notice of the order being sought and finds out about the order only after it has been made and then has to go to court to unpick something made against them without notice.

If we were talking about anything in court, anything at all—orders for production of documents, orders for discovery, or anything else—you would always have an application made by the applicant to the court for the court to exercise its jurisdiction to make the order, unless you had agreement. There is no intention here whatsoever to prohibit parties, as early as they like, from seeking orders (initially by consent) for material that is relevant to the matter before the court—no problem at all. If there is a dispute about whether the order they are seeking is relevant, the dispute is heard at the beginning, before they get the order, not at the end after they present the order to whoever it is that the order is made against.

For the life of me, I cannot see what, philosophically, is wrong with the idea that if you want the court to give you an order for something you ask the court for that order and the person against whom you are seeking the order has the right to be heard about that order if it is a contested order. It is very clear when you read this that if the order is seeking something which is within the scope of the allegations made against the defendant, the court must grant the order. In any relevant matter the court must grant the order.

If we are trying to grab the whole criminal process by the scruff of the neck and make people concentrate earlier, I do not see what is wrong with saying to the involved parties, 'If you have a dispute about subpoenas, we are going to drag the court in to manage you right at the beginning and not wait until the end. We are going to drag you right in, right at the beginning.' Then, the court is actively involved in case management.

I do not see anything wrong, as I said, with a party seeking to obtain an order from the court to be the party that makes the application, and the other side, if there is an objector, being entitled to say whatever they have to say about it and the order then being made or not made, according to the determination of a judicial officer. That is all we are saying. We are not prohibiting anything. We are simply saying there is now a gatekeeper there and that gatekeeper is a judicial officer. So, for those reasons, I oppose it.

Ms CHAPMAN: Not only has the Attorney failed to outline why it is necessary to have a gatekeeper, he still does not appreciate the significance, in indictable matters, of why we need this rule. We do not have it in civil cases. We frequently issue subpoenas in civil cases to command witnesses to attend or to produce documents, and there are processes through which the recipient of the subpoena can challenge the obligation to produce or attend, based on funds being available to produce or collate that material, and that sort of thing. It is a damn insult to the most serious offences and those involved in them that they must have a gatekeeper, but that the same is not required in the rest of our litigation.

I find the government's idea of having this gatekeeper process on the subpoenas completely unsubstantiated. Why should we accept it? It demonstrates to me, firstly, that the Attorney does not have a clue about what is actually happening on this, and, secondly, that he is inconsistent with all other areas of the law where we do not impose that (in minor criminal matters or, indeed, in civil matters). I find it a completely flawed argument to suggest that this amendment should stay in here in those circumstances, especially when we know there is a level of inadequate production of primary material, usually by the South Australia Police to the DPP's office, which then comes in to have command and carriage of these matters.

The DPP made this very clear in his last annual report—after the review on his office, reported in 2016—when he referred to the consultation with the Attorney about this particular reform and about how it might be approved:

Part of this has been to invite input into how the committal process might be improved with but one goal being my office having more information from SAPOL at an earlier time. This might then contribute to a reduction in the number of court appearances for a matter and a reduction in delay.

He himself—this is the principal officer, the DPP—manages an office on about $20 million a year to try to deal with these serious cases, and he highlights this again. I do not know whether the Attorney does not read this, or does not care about it, or just thinks, 'Well, this is going to be my panacea for dealing with that disgusting delay in the courts of trials in our criminal justice system.' He makes it harder for the very people who are looking for protection of the innocent and conviction of the guilty.

The committee divided on the amendment:

Ayes 17

Noes 21

Majority 4

Amendment thus negatived.

Ms CHAPMAN: I move:

Amendment No 6 [Chapman–2]—

Page 24, line 34 to page 25, line 12 [clause 7, inserted section 120(1)]—

Delete inserted subsection (1) and substitute:

(1) Where the Magistrates Court commits a defendant to a superior court for trial, the Magistrates Court must fix a date for the defendant's arraignment, having regard to any relevant information provided by the prosecution and the defendant.

Amendment negatived.

Ms CHAPMAN: I move:

Amendment No 7 [Chapman–2]—

Page 25, after line 22—After inserted section 121 insert:

121A—Information to be presented

Subject to section 122, where the Magistrates Court commits a defendant charged with an indictable offence to a superior court for trial, the prosecution must present, or cause to be presented, an information against the defendant.

Again, this relates to the new pre-trial disclosure provision.

Amendment negatived.

The Hon. J.R. RAU: I move:

Amendment No 5 [DepPrem–1]—

Page 25, line 28 [clause 7, inserted section 122(1)]—Delete 'regulations' and substitute:

rules of the superior court

Amendment No 6 [DepPrem–1]—

Page 25, line 33 [clause 7, inserted section 122(2)(a)]—Delete 'regulations' and substitute:

rules of the relevant court

Amendments carried.

Ms CHAPMAN: I move:

Amendment No 8 [Chapman–2]—

Page 26, line 1 to page 31, line 40 [clause 7, inserted sections 123, 124 and 125]—

Delete inserted section 123(10)

The CHAIR: The deputy leader will appreciate that the Attorney has an amendment halfway through, so I ask her to consider moving part of her amendment No. 8 up to the word 'regulations', which is on page 28, line 40. Are you happy with that?

Ms CHAPMAN: Yes.

Amendment negatived.

The Hon. J.R. RAU: I move:

Amendment No 7 [DepPrem–1]—

Page 28, line 40 [clause 7, inserted section 123(11)]—Delete 'regulations' and substitute:

rules of the superior court

Amendment carried.

Ms CHAPMAN: I think I now have to move the balance of amendment No. 8; is that right?

The CHAIR: That is not necessary in light of what has just happened. I am advised that your amendment No. 1 on schedule 1 comes at this point, deputy leader.

Ms CHAPMAN: I move:

Amendment No 1 [Chapman–1]—

Page 31, lines 24 to 28 [clause 7, inserted section 125(6)]—Delete subsection (6)

This amendment relates to the adverse comment rule. The amendment deletes subsection (6) of proposed section 125, which sets out the penalties for failure to comply with the disclosure requirements. The Attorney quite rightly points out that, in the course of consultation, the government accepted that putting the obligation on legal counsel in respect of costs orders was rather draconian. It has been removed in the form it was presented.

That is welcomed to an extent, but it does not cure the ill and is just seen as some sort of punishment to these lawyers who the Attorney describes as people who deliberately do such things as issue vexatious and fishing expedition subpoenas, these people who are not acting in a manner which suggests that they are, indeed, to act as officers of the court, to comply with their undertakings as senior counsel, etc. It is not to say that there are not times that lawyers do not act as properly as they should, and we have a process to deal with that. It is not to say that they do not do things, or fail to do things that are up to a certain standard, and we have processes to deal with that. To put it into this bill was completely, I suggest, improper, but at the very least on that, they have considered it.

What has happened here is that, in the absence of having some sort of punishment process for defence complying strictly with the obligation, they face the risk that a judge can make an adverse comment about that practice, or the act or their failure to act, to the determining body, which, of course, is usually the jury. To do that, we have raised two options to say that if we are going to have a regime in which there is going to be some sort of punishment for not everyone sticking to the rules, then it should cover both the prosecution and the defence.

The Attorney's response to that is that we do not need to do it to the prosecution because they have obligations to do it anyway. As I have reported to this house before, that is not the view of the DPP. Of course, I am not in any way reflecting on his behaviour or his conduct and that he is not acting properly in the cases that he conducts. I make the point, though, that there is not a penalty for his office in this regime if he does not do the right thing, or if his officers do not do the right thing. So, we have said to the government, if that is the case and you want to introduce this approach, then it should apply to both.

The government's position is to reject that and to maintain a position of only punishing the defence as being the group that is at risk if they do not comply with the rules, and this is the case statement regime. It is more than that, but, if I can put it in a general sense, to their not complying with the timely and, what is to be, prescriptive model of obligation of, not just early disclosure, but identification of the principal issues of the case, defences that are going to be raised, etc. That is just completely unconscionable to us.

The second aspect of this is the concern that is being raised not just by defence counsel but others we have consulted with who do raise the spectre of whether that will result in the opportunity for further appeal, that is, further time being spent on cases unnecessarily. The Attorney says today that on his inquiry, presumably from this chat with the New South Wales DPP, that that has not been a problem. It is possible that they do not use it in these other jurisdictions that have this capacity to make adverse comment because the judges know, wisely, that if they do not give an instruction or make a comment that is within the lines but just traverses or transcends what is acceptable, they might end up in the appeal court.

So, they are smart enough to think that they will not make an adverse comment because it might completely corrupt the process of this being able to continue, forcing a mistrial, or ending up in an appeal court. Fortunately, we have smart judges who are able to identify some of these things, and that may be an explanation; that is, it is not actually used as an instrument of discipline toward defence and those working in it, whether that is counsel or their instructions from their clients.

The approach is inconsistent of the government with the Attorney's comments that we are introducing a regime which is fair for all; they all know what they have to do, it is going to produce the early result, take this out and have this timely effect and therefore reduce the out-of-court list, but there is no penalty. There is no penalty for the prosecution, only the defence. It is not only inconsistent, it is unconscionable; it ought not to be there and we suggest that it should be removed.

The Hon. J.R. RAU: I fundamentally disagree with that proposition. If the defence says one thing one day and then wants to turn up in front of the jury and say something completely different, I cannot for the life of me see why it is not relevant for the jury to be—

Ms Chapman: It might be because of late disclosure of documents.

The Hon. J.R. RAU: The deputy leader says it could have been because of late disclosure of documents. If that is the case, as I explained in my remarks before, there is an opportunity for the buttons to be reset. The case does not inevitably roll down the slipway, come what may. If there is a late disclosure of something which is material to the case, either the defence or the prosecution can apply for an adjournment of the proceedings, and the court manages whether or not it is in the interests of justice for that to occur.

The court would also manage whether or not it is in the interests of justice for comments about a prior inconsistent statement to actually be put to the jury. If the trial judge could be persuaded by defence counsel that 'the only reason we said that before and now we are saying this is because these characters have bobbed up at the last minute with a new piece of material which changes the context of things', that is a conversation they have with the judge. The judge makes that decision.

I go back to the quote I have mentioned before. This is not from me; this is an eminent jurist in the United Kingdom:

A criminal trial is not a game in which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles.

If in advance the defendant says something which subsequently turns out to be very different from what the defendant says ultimately at trial, and if the trial judge thinks there is sufficient difference between those things without explanation, that it should be put in the interests of fairness to the jury, then and only then will it be put.

I cannot for the life of me see anything wrong with that. It happens in New South Wales, or at least it is part of their law, and New South Wales does not appear to be a place where the wheels have fallen off the criminal justice system. In fact, from speaking to the Director of Public Prosecutions there, he says this whole system works very well. It might well be not just that judges are clever and do not give these directions because they want to avoid tripping over them, it might well be that the fact of the judge being able to make such a direction is part of the reason why people actually get to the program in the first place, so I oppose it.

Ms CHAPMAN: Again, unfortunately the Attorney has not given any basis upon which we need to have this. Raising the question of inconsistent statements is a legitimate matter which can be presented in a court case. If he had done any of these, he would understand that. We do not need this clause for that to happen. You think about it. This clause says:

If a defendant in proceedings for an indictable offence in a superior court fails to comply with disclosure requirements—

This is a process; then the judge can say to the jury, 'They didn't get their form in on time'—

or conducts the defendant's case in a manner that is inconsistent with the defence case statement.

Again, that is a process and not to do with inconsistent statements in a witness box. If the minister had any clue about this, he would understand the difference. This is completely unnecessary. This is designed to intimidate the defence and does not bring to account the prosecution.

If this is going to be a punishment for process, then both have to be in line. I have given an indication and made absolutely clear the warning I will personally give to this parliament if we pass legislation that starts to give advice to juries about people who do not do the right thing, or do not tick the box, or do not put the right comma in the right spot, or do not comply with the production of a document at the right time, or introduce another element to their case statement at a later date because of some other fact. That is procedure.

This is punishment for failing to cover a procedure—a risk that the judge can make an adverse comment if one side does the wrong thing and the other one gets off scot-free. That is completely unacceptable, and it has nothing to do with inconsistent statements by a witness. The minister should know better; he has a whole army of advisers to give him that advice.

The committee divided on the amendment:

Ayes 17

Noes 21

Majority 4

Amendment thus negatived.

Ms CHAPMAN: I move:

Amendment No 9 [Chapman–2]—

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

Amendment negatived.

Ms CHAPMAN: I move:

Amendment No 10 [Chapman–2]—

Page 32, line 16 [clause 7, inserted section 126(4)(a)]—Delete 'as disclosed in the case statements'

I will deal with this at amendment No. 11.

Amendment negatived.

Ms CHAPMAN: I move:

Amendment No 11 [Chapman–2]—

Page 32, after line 41—After inserted section 127 insert:

Division 5A—Pre-trial disclosure in superior court

127A—Directions hearings

At any time except during trial, the trial court may conduct 1 or more directions hearings.

127B—Powers of court at directions hearings

(1) At a directions hearing, the court may make or vary any direction or order, or require a party to do anything that the court considers necessary, for the fair and efficient conduct of the proceeding.

(2) Without limiting subsection (1), the court may do any of the following:

(a) require the defendant to advise whether the defendant is legally represented and has funding for continued legal representation up to and including the trial;

(b) require the parties to notify the court of any pre-trial applications that the parties intend to make;

(c) set a timetable for the hearing of pre-trial applications;

(d) require the parties to provide an estimate of the length of the trial;

(e) require the parties to advise as to the estimated number and the availability of witnesses (other than the defendant) and any relevant requirements of witnesses and interpreters;

(f) order a party to make, file in court or give to another party (as the case requires) any written or oral material required by the court for the purposes of the proceeding;

(g) order the prosecution to file in court and give to the defendant a copy of any material on which the prosecution intends to rely at the trial;

(h) determine any objection relating to the disclosure of information or material by the prosecution;

(i) allow a party to amend a document that has been prepared by or on behalf of that party for the purposes of the proceeding.

(3) At a directions hearing, the court may make any order or other decision that can be made or decided before trial by or under this or any other Act.

127C—Summary of prosecution opening and notice of pre-trial admissions

(1) Unless the court otherwise directs, at least 28 days before the day on which the trial of the defendant is listed to commence, the prosecution must give to the defendant and file in court—

(a) a summary of the prosecution opening; and

(b) a notice of pre-trial admissions.

(2) The summary of the prosecution opening must outline—

(a) the manner in which the prosecution will put the case against the defendant; and

(b) the acts, facts, matters and circumstances being relied on to support a finding of guilt.

(3) The notice of pre-trial admissions must identify the statements of the witnesses whose evidence, in the opinion of the prosecution, ought to be admitted as evidence without further proof, including evidence that is directed solely to formal matters including—

(a) continuity; or

(b) a person's age; or

(c) proving the accuracy of a plan, or that photographs were taken in a certain manner or at a certain time.

(4) If a defendant has not already received a copy of a statement identified in a notice of pre-trial admissions, the notice must contain a copy of the statement.

127D—Response of defendant

(1) After being given a copy of the documents referred to in section 127C, the defendant must give to the prosecution and file in court, at least 14 days before the day on which the trial of the defendant is listed to commence—

(a) a copy of the response of the defendant to the summary of the prosecution opening; and

(b) a copy of the response of the defendant to the notice of pre-trial admissions.

(2) The response of the defendant to the summary of the prosecution opening must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken.

(3) The response of the defendant to the notice of pre-trial admissions must indicate what evidence, as set out in the notice of pre-trial admissions, is agreed to be admitted as evidence without further proof and what evidence is in issue and, if issue is taken, the basis on which issue is taken.

(4) Despite subsections (2) and (3), the defendant is not required to state—

(a) the identity of any witness (other than an expert witness) to be called by the defendant; or

(b) whether the defendant will give evidence.

127E—Intention to depart at trial from document filed and given

If a party intends to depart substantially at trial from a matter set out in a document given and filed by that party under this Division, the party—

(a) must so inform the court and the other party in advance of the trial; and

(b) if the court so orders, must inform the court and the other party of the details of the proposed departure.

127F—Continuing obligation of disclosure

(1) This section applies to any information, document or thing that—

(a) comes into the possession of the prosecution after a defendant is committed for trial; or

(b) is in the possession of the prosecution when, or comes into the possession of the prosecution after, an information is laid ex officio in a superior court in accordance with section 103,

and would have been required to be listed, or a copy of which would have been required to be given, in the preliminary brief under section 106 or the committal brief under section 111.

(2) Subject to subsection (4), the prosecution must give to the defendant a copy of the document or list as soon as practicable after—

(a) the information, document or thing comes into the possession of the prosecution; or

(b) the ex officio information is laid in accordance with section 103,

as the case requires.

(3) If the information, document or thing cannot reasonably be copied, the prosecution must advise the defendant of the existence of the information, document or thing and make it available for inspection at a time and place agreed between the defendant and the prosecution.

(4) The prosecution need not provide any information, document or thing under this section if it has already been provided to the defendant by the prosecution.

127G—Disclosure of address or telephone number of witness

(1) The prosecution must not disclose the address or telephone number (including a private, business or official address or telephone number) of any person in any information, document or thing given to the defendant under this Division unless—

(a) the prosecution believes that—

(i) the information, document or thing does not identify the address or telephone number as that of any particular person; or

(ii) the address or telephone number is relevant to the offence charged and disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or

(b) the court permits the disclosure in accordance with subsection (3) on application made by the prosecution or the defendant.

(2) For the purposes of this section, the prosecution may delete, or render illegible, an address or telephone number included in the information, document or thing before giving it to the defendant.

(3) The court may grant an application made under subsection (1)(b) if the court is satisfied that—

(a) the address or telephone number is relevant to the offence charged; and

(b) 1 of the following applies:

(i) disclosure is not likely to present a reasonably ascertainable risk to the welfare or physical safety of any person; or

(ii) having regard to the matters referred to in subsection (4), the interests of justice outweigh any risk referred to in subparagraph (i).

(4) For the purposes of subsection (3)(b)(ii), the court must have regard to—

(a) the safety and privacy needs of the witness; and

(b) the right of the defendant to prepare properly for the trial.

127H—Previous convictions of witness

(1) The defendant may request the prosecution to provide particulars of previous convictions of any witness who the prosecution intends to call at the trial.

(2) A request under this section does not require the prosecution to give to the defendant particulars of any previous conviction of any witness if the previous conviction is, because of its character, irrelevant to the proceeding but the prosecution must advise the defendant of the existence of any undisclosed previous convictions.

127I—Prosecution notice of additional evidence

(1) In this section—

additional evidence means any evidence that is not included in the depositions in the proceeding;

depositions means the transcript of evidence given in a committal proceeding and any statements admitted in evidence in committal proceedings under Division 3.

(2) If the prosecution intends to call a witness at trial to give additional evidence, the prosecution must give to the defendant and file in court—

(a) a notice of intention to call additional evidence; and

(b) a copy of the statement of the proposed witness containing the additional evidence or an outline of the additional evidence that the witness is expected to give.

127J—Expert evidence

(1) If the defendant intends to call a person as an expert witness at the trial, the defendant must give the prosecution, and file in the trial court, a copy of the statement of the expert witness in accordance with subsection (2)—

(a) at least 14 days before the day on which the trial of the defendant is listed to commence; or

(b) if the statement is not then in existence, as soon as possible after it comes into existence.

(2) The statement must—

(a) contain the name and business address of the witness; and

(b) describe the qualifications of the witness to give evidence as an expert; and

(c) set out the substance of the evidence it is proposed to adduce from the witness as an expert, including the opinion of the witness and the acts, facts, matters and circumstances on which the opinion is formed.

127K—Alibi evidence

(1) A defendant must not, without leave of the court—

(a) give evidence personally; or

(b) adduce evidence from another witness,

in support of an alibi unless the defendant has given notice of alibi within the period referred to in subsection (2).

(2) A notice of alibi must be given to the prosecution within 14 days after—

(a) the day on which the defendant was committed for trial on the charge to which the alibi relates; or

(b) if paragraph (a) does not apply, the day on which the defendant received a copy of the information charging the offence.

(3) A notice of alibi must contain—

(a) particulars as to time and place of the alibi; and

(b) the name and last known address of any witness to the alibi; and

(c) if the name and address of a witness are not known, any information which might be of material assistance in finding the witness.

(4) If the name and address of a witness are not included in a notice of alibi, the defendant must not call that person to give evidence in support of the alibi unless the court is satisfied that the defendant took reasonable steps to ensure that the name and address would be ascertained.

(5) If the defendant is notified by the prosecution that a witness named or referred to in a notice of alibi has not been traced, the defendant must give written notice to the prosecution, without delay, of any further information which might be of material assistance in finding the witness.

(6) The court must not refuse leave under subsection (1) if it appears to the court that the defendant was not informed of the requirements of this section.

(7) If—

(a) a defendant gives notice of alibi under this section; and

(b) the prosecution requests an adjournment,

the court must grant an adjournment for a period that appears to the court to be necessary to enable investigation of the alibi unless it appears that to do so would prejudice the proper presentation of the case of the defendant.

127L—Offence to communicate with alibi witness

(1) If a person (other than a person referred to in subsection (2)) has been named or referred to as a proposed witness in a notice of alibi given under section 127K—

(a) a person acting for the prosecution; or

(b) a police officer,

must not communicate with that person directly or indirectly with respect to the charge or any related matter before the conclusion of the proceeding, including any new trial or rehearing, without the consent and presence during the communication of—

(c) the legal practitioner representing the defendant; or

(d) if not legally represented, the defendant.

Maximum penalty: Imprisonment for 1 year.

(2) Subsection (1) does not apply to a person who the defendant has been notified may be called as a witness for the prosecution at the trial.

127M—Introduction of evidence not previously disclosed

(1) If the trial judge gives leave to do so, the prosecution or the defendant may introduce at the trial evidence which was not disclosed in accordance with this Division and which represents—

(a) in the case of the prosecution, a substantial departure from the summary of the prosecution opening, if any, as given to the defendant and filed in court; or

(b) in the case of the defendant, a substantial departure from—

(i) the response of the defendant to the summary of the prosecution opening; or

(ii) the response of the defendant to the notice of pre-trial admissions,

if any, as given to the prosecution and filed in court.

(2) If, after the close of the prosecution case, the defendant gives evidence which could not reasonably have been foreseen by the prosecution having regard to—

(a) the response of the defendant to the summary of the prosecution opening; and

(b) the response of the defendant to the notice of pre-trial admissions,

as given to the prosecution and filed in court, the trial judge may allow the prosecution to call evidence in reply.

(3) Nothing in this section limits any other power of the trial judge to allow the prosecution to call evidence after the prosecution has closed the prosecution case.

127N—Comment on departure or failure

(1) Subject to this section, the trial judge or, with the leave of the trial judge, a party may make any comment that the trial judge thinks appropriate on—

(a) a departure referred to in section 127M(1); or

(b) a failure by a party to comply with a requirement under an Act or law relating to the trial or an order relating to the trial.

(2) The trial judge may grant leave to a party to comment on a departure or failure only if satisfied that—

(a) the proposed comment is relevant; and

(b) the proposed comment is not likely to produce a miscarriage of justice.

(3) A comment made by the trial judge or a party must not—

(a) in the case of a departure, suggest that an inference of guilt may be drawn from the departure except in those circumstances in which an inference of guilt might be drawn from a lie told by a defendant; and

(b) in the case of a failure—

(i) suggest that an inference of guilt may be drawn from the failure except in those circumstances in which an inference of guilt might be drawn from the failure of a defendant to adduce evidence from a particular witness; or

(ii) suggest that the failure may be taken into account in considering the probative value of the prosecution evidence except in those circumstances in which a failure of a defendant to give evidence or adduce evidence from a particular witness might be taken into account for that purpose.

This amendment supports the proposition that the opposition is agreeable to, after our consultation, with some reform to basically the disclosure through a case statement model with the Victorian system. The Victorian model, which is in amendment No. 11, as outlined, has, unlike the Attorney's suggestion, been carefully considered by our parliamentary counsel and has provided great assistance to us in the preparation of ensuring that, if this part of the process is brought into this bill, which is otherwise cherrypicked from other jurisdictions and the Attorney's brain, this model will sit neatly within the structure of reform he intends and that it is one that we think is not only practical in resolving the problem but effective in that jurisdiction and ought to be introduced into the parliament.

It sets out that regime. It is demonstrably effective and sets out a good program, which we suggest will bring about reform that we say is effective. The one thing it requires is for the Attorney to go back and read the review of the DPP's office, published in about June last year, read the annual reports of the DPP over the last six or seven years, which cite repeatedly that requirement of extra resources. It is money, and that is what in the end this skinny model we get from the government, this oppressive model we get from the government, is wrong. This one should be adopted.

The committee divided on the amendment:

Ayes 17

Noes 21

Majority 4

Amendment thus negatived; clause as amended passed.

Sitting extended beyond 13:00 on motion of Hon. J.R. Rau.

Remaining clauses (8 to 10) passed.

Schedule 1.

The Hon. J.R. RAU: I move:

Amendment No 8 [DepPrem–1]—

Page 64, table entry relating to section 184(1)(c)—Delete the table entry relating to section 184(1)(c)

Amendment carried; schedule as amended passed.

Schedule 2 and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (13:05): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 13:06 to 14:00.