Bills

Juries (Prejudicial Publicity) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 May 2015.)

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (15:24): I understand that there are no further second reading contributions, so I would like to thank those members for those contributions. There were a number of issues raised through that second reading debate that I would like at this point in time to address.

In relation to concerns that the Law Society says there is no need for this bill, since the decision of the High Court Dupas v The Queen 2010 (247 CLR 231), the bar has been set very high for an accused to successfully apply for a permanent stay of criminal proceedings as a result of prejudicial publicity. As applicants for permanent stays are now very unlikely to be successful, the bill provides an extra option for judges when considering an application for a stay. This serves the interests of justice in that it is another method of ensuring the accused has a fair trial.

As the bar for a permanent stay is so high, the amendment is filling a gap in the system that was identified. There is currently nothing between the jury trial with directions and a permanent stay. Section 7 of the Juries Act 1927 allows an accused person to elect to have a trial by judge alone:

7—Trial without jury

(1) Subject to this section, where, in a criminal trial before the Supreme Court or the District Court—

(a) the accused elects, in accordance with the rules of court, to be tried by the judge alone; and

(b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner,

the trial will proceed without a jury.

There are some exceptions to this. For example, where there are joint accused, both need to agree with the election for a judge-alone trial. The DPP can also apply for a judge-alone trial in some serious and organised crime matters, and the court may grant the order if it is in the interests of justice to do so.

Looking forward, it is likely that the use of social media will increase over time. The government wants to ensure that the justice system is prepared for future cases that may require options such as judge-alone trials to ensure an accused can always receive a fair trial in matters where there has been significant prejudicial publicity.

There was another concern around jury trial lost through no fault of the accused, and the advice I have received is that it is incorrect to say that the accused has lost their right to a trial by jury. The government agrees that it is unfortunate that external factors such as media reporting can influence a person's criminal trial; however, this is the reality. It is the world we live in today. The media will always report on criminal trials, particularly notorious matters, and it is important that this reality is recognised and measures are put in place to ensure a person has a fair trial, even if there has been prejudicial publicity. This bill gives judges an additional option to ensure an accused has a fair trial.

There is a further concern that the bill leads to the loss of the accused's right to jury trial, and I have been advised that characterising this bill as eroding the right to a trial by jury is incorrect in the government's view. There is no constitutional right to a trial by jury at state level. It is conferred by legislation. The order can only be made if the accused has made an application for a permanent stay of proceedings and presumably therefore are concluded that they, the accused, no longer want a jury trial due to no doubt the effect of the publicity.

Since the bar to receive a permanent stay order is now set so high due to decisions of the High Court, the accused currently has no real option but to proceed with a jury trial. This bill provides an alternative if the judge believes jury directions would not be sufficient to ensure a fair trial. The bill benefits the accused by ensuring that a fair trial is achieved.

Although it is understandable that an accused would prefer to have no trial, rather than have the trial continue, it is ultimately in their interests that judges have the means to ensure that the trial is, in fact, fair. It is also in the interests of justice that the accused should face the court and be tried for crimes they have been charged with.

In relation to concerns that the bill could lead to the media being less constrained in their reporting and does not discourage the misuse of social media, I have been advised that the bill expressly provides that it does not affect the contempt of court provisions. This is to remind those who report on criminal matters that they can still be charged with contempt. There is no one legislative approach that can fix the issue of irresponsible media reporting and irresponsible use of social media. The bill is designed to give judges an additional option to ensure that an accused has a fair trial where there has been prejudicial publicity.

Concern was also raised that the bill may intimidate the accused into not applying for a stay in fear of getting a judge-alone trial. I have been advised that it is correct that an accused who does apply for a stay will have to take into consideration the possibility of then getting an order for a judge-alone trial; however, a judge-alone trial will be ordered only where it is determined to be necessary to ensure that the accused has a fair trial, and therefore the order is made to benefit an accused person.

The accused person, in applying for a permanent stay, has clearly decided that they believe a jury trial will be unfair to them and that it is no longer desirable. Therefore, the accused person can only be benefited by the court taking additional measures, such as making one of these orders, to make sure that their trial does proceed in a fair way. With those words, I again thank honourable members for their contribution, and I look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: I thank the Leader of the Government for the government's comments at the second reading. In many ways, it gives the government's response to the matters that I raised and other members have raised through the debate on the second reading, but the Liberal Party remains unmoved by the government's submissions. We do not take the view that this is a necessary piece of legislation. The bar for an accused to obtain a permanent stay has been set extremely high. They also have the option under the current law whether to be tried by judge alone or by jury, and that is not just an issue of publicity for the accused; it may be a variety of factors which affect the accused's decision.

That brings me to the key point in this amendment. This amendment really takes away from the accused the option of applying for a stay and, in effect, institutes a penalty in the sense that they put themselves at risk of a judge deciding that they should have a trial without jury. That should be seen in the backdrop of the importance of the jury system to our democracy. The government has rightly said that it is not a constitutional right, but it is such a fundamental part of our democracy.

Indeed, it can be seen as a pillar of our democracy in the engagement of our citizens in making serious decisions in relation to their fellow citizens. It should not be seen by this chamber at any time as part of a technical procedure in the administration of justice. It is as important as the business that is being conducted in this chamber and the other place. I am particularly drawn by a quote that was in the second reading contribution of the Hon. Mr Darley, where he raised a quote from the ACT justice, Xavier Connor QC. He said:

Trial by jury is and is seen to be a system better adapted than any other to preserving the liberty of the subject against oppression by the state.

It is against that backdrop that the Liberal Party feels this is an unnecessary amendment, one that does not advance the law and finds the arguments, particularly in relation to media influence, not persuasive.

In all endeavours of the criminal justice system we have to take into account the influence of the media. The easy way out is to amend or restrict the rights of the individual, but the jury system is there to protect the rights of the individual against the state itself and it is that which we consider a key principle which should only in very serious circumstances be considered by the legislature for amending.

There was also, in my research, very little case law that I could find where publicity alone gave rise to a stay. In fact, there are a multitude of issues raised. I also have great confidence that the citizens of South Australia can filter out what the media says and focus on the evidence. In essence, what we are saying with this amendment is that we do not trust our own citizens to make judgements. In all those circumstances, the view of the Liberal Party remains unchanged and we will be voting against the bill in the third reading.

The Hon. D.G.E. HOOD: I indicate that Family First takes a somewhat different view to the one we have just heard, with respect. We will be supporting the bill. It is quite a simple bill, but the operative clause really does speak for itself, and this is why we have been persuaded to support the bill. It states:

Where, in a criminal trial before the Supreme Court or the District Court, an accused applies for a stay of proceedings on the basis that publicity has prevented, or may prevent, the accused from receiving a fair trial, the court may, at any time, if it considers it necessary—

And I think that is the key part, sir, 'if it considers it necessary'—

in order to ensure a fair trial, order that the accused be tried by judge alone.

Obviously, that is not something a judge would do lightly. For that reason, we are inclined to support the bill. I would also add to that that it has been reported to me from a reliable source that somebody who was involved in a jury in an actual trial was quite surprised to hear some jurors make remarks along the lines that, 'This person must be guilty,' because of the circumstances that they had heard in the media.

I am sure that is rare and I do not disagree with the comments the Hon. Mr McLachlan made, I think he summed up the argument against the bill quite well, but I am persuaded by the fact that the bill itself actually says that it is only when considered necessary to ensure a fair trial. When you add to that the report that has been given to me by a member who was actually on a jury who had heard something to the effect that, in their view, was somewhat persuasive to other members of that jury in terms of their position, I think, on the basis of that position, we are persuaded to support the bill.

The Hon. M.C. PARNELL: Because this bill is clearly a live one now, with the numbers quite tight, I thought I should put the Greens' position on the record briefly, given that we did not make a second reading contribution. The line of inquiry undertaken by the Liberal opposition is very similar to the line of inquiry the Greens undertook, and that included inquiring into whether there had been cases in South Australia where a person had effectively avoided a trial by using the excuse or the complaint that the prejudicial publicity was so great that they were not able to get a fair trial and thereby effectively walked free.

I am indebted to the minister's advisers for providing precedents and cases, but I think it is fair to say that there is not a case where prejudicial publicity alone has been sufficient reason for a court to say to an accused, 'You can't get a fair trial. You can walk free.'

The closest case that I am aware of where prejudicial publicity was one of the reasons that resulted in a person not being tried for very serious crimes was the case of former magistrate Peter Liddy. As members would recall, this was a most notorious case. In 2001 the former magistrate was convicted before a jury of three counts of indecent assault, six counts of unlawful sexual intercourse with a person under the age of 12 and one count of offering a benefit to a witness. He was sentenced on 5 June 2001 to 25 years imprisonment with a non-parole period of 18 years.

Fast forward some eight or nine years, I think, and some other victims sought to have their complaints against Mr Liddy resolved in court. Liddy, through his lawyers, basically said, 'Well, I'm not going to get a fair trial because I'm notorious in the media. Everyone knows my name, they know what I've been convicted of, I can't possibly get a fair trial.' One of the great ironies, having heard the Family First contribution, is that one of the reasons why these second cases came so much later was the bill that the Hon. Andrew Evans succeeded in getting through parliament, which actually changed the statute of limitations period for child sex offences.

There were some offences that were known in 2001 but could not be tried because of those laws that have now been repealed. So, as a result, when the laws were repealed they came back and had, if you like, a second bite of the cherry. What the judge said in what I will call the Liddy number two case in 2010, I think it was, is that he accepted that there had been a lot of adverse publicity. I will quote from the judgement:

I am satisfied that the potential for prejudice caused by the publicity in this matter is likely to be very considerable. However—

and this is the crux of it—

it is unlikely that, standing alone, it would be such as to give rise to an unacceptable and significant risk that a fair trial is precluded.

In other words there were other factors that added to the adverse publicity, which resulted in the fact that Liddy was not tried for these subsequent offences. It is a lengthy judgement; I have read it. Between the lines, the reason Liddy escaped trial for these other offences is that he was in gaol for 25 years with a very long nonparole period and, even if he had been found guilty of the subsequent offences, as was very likely, it was not going to add any time to his gaol time. The sentences would have been served concurrently.

Whilst the judge does not actually say that outright, on reading the judgement I am pretty sure that that is the case. So, yes, Mr Liddy did avoid a trial and, yes, adverse publicity was one of the grounds, but it was not the exclusive ground. In fact, standing alone, it would not have been enough. So we come back to the position that the Liberals have put: there aren't any examples of where this has been a live problem for which this law reform is necessary.

So then we look at basic principles. How strongly are we prepared to defend the right to trial by jury? I understand what the minister said, that she disagrees with the Law Society's interpretation. I am actually inclined to believe that the Law Society has got it right. The ability to choose whether to go to a trial by jury or a judge alone is something that is the right of the accused, whether it is constitutional or whether it is just a legal right of long standing in our legislation.

The flip side of the coin—and this is what the bill is trying to say—is that we want to make sure that there are no circumstances in which the community's right to make sure that an alleged wrongdoer is tried is not subverted by some sort of legal technicality. My answer is: it has not happened; it is unlikely to happen. The High Court set the bar high. We do not think it is going to happen. As a result, the position that the Greens have come to is that this legislation really does no great good, it does not actually advance or protect justice or the rights of either society or the individual in the criminal jurisdiction in South Australia, so we will not be supporting the bill.

The Hon. G.E. GAGO: That is incredibly disappointing. Obviously the government believes that this piece of legislation is worthwhile and is necessary, given the High Court decision of Dupas v The Queen, which changed the level that the bar could be raised around stays being applied. That decision resulted in a stay not being granted, and it has now had quite a significant effect on further provisions.

The Hon. Andrew McLachlan is implying that there is no benefit in this legislation. I have outlined quite clearly that there are benefits for the accused, that the government believes there are situations where external factors like media reporting can influence a trial, and that this piece of legislation gives judges an additional option—just an option—to ensure that a fair trial proceeds.

However, in relation to giving precise examples, the government agrees that it is not common and it is unlikely to be common. However, we cannot say as legislators that it would not happen in future. We are looking ahead and saying that, with the increased use of social media, it is much more likely to happen. So, rather than wait for this to occur and then be legislating, we are foreseeing that there is potentially an increased likelihood for the need for this sort of provision. So, this bill takes a more proactive approach to account for future cases that may benefit from the option of these orders. I urge members to reconsider. It is an important opportunity and we hope that it will not be missed.

The Hon. A.L. McLACHLAN: I thought I would address some of the issues from a Liberal Party perspective that have been raised in the chamber in this debate. I will start with the Hon. Mr Hood. Whilst I greatly respect his submission to the house, I assure him that, from my own experience, when I practised in criminal law a long time ago, it was my view that juries generally got it right. That is why we have 12 jurors and not one. There may be one of a weaker mind in the 12, but that is why we have 12 and not six, four, three, two or one.

I also re-emphasise my point that it is the right of the accused. It always sends a shiver up my spine when I hear about the state, and the state collectively, always worrying about what is best for the accused. I know from my days defending people that it is the loneliest place to be, and the only person you have got standing by your side is your defence counsel. I think it is a very cute argument to say that it is for the benefit of the accused, which is the government's proposition. I do not think it is for the benefit of the accused.

Media have always attempted to influence trials. Jurors have always, since time immemorial, had to focus on the evidence and turn away their minds, and I do not think social media present a greater risk. If that were such an issue, the government would have tabled in the other place or in this place evidence of the influence of social media: it has not. It has simply produced a technical amendment. I do not find the argument convincing, and it would take a lot of convincing to say that the situation in our community has become so bad that 12 people neglect their duties in the confines of the jury room. It will always be an issue, and that is why we have judges directing them, and that is why we choose jurors who take their responsibilities seriously.

I will finish on one particular issue: in this situation a right is being taken away from the accused. What we are saying here is that the judge will then make the decision whether it will be a trial by judge alone. We are taking away a discretion from a judge whether to stay, which again is extremely rare, and then we are saying that we are taking away the rights from the accused and giving another discretion back to the judge to decide whether they have a trial by judge alone. I just do not think that is a logical progression. I finish on the basis that the Liberals remain unmoved in the chamber and reiterate that we see this chamber as the last line of defence for the rights of the individual and, in this instance, we will, in good conscience, vote against this bill at the third reading.

Clause passed.

Remaining clauses (2 to 4) and title passed.

Bill reported without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (15:51): I move:

That this bill be now read a third time.

Third reading negatived.