Summary Procedure (Indictable Offences) Amendment Bill

Committee Stage

In committee.

Clause 1

The Hon. A.L. McLACHLAN: We are at clause 1 but I just want to set the scene. I say at the outset that, since the second reading debate, the government will be seeking to amend the bill. I should say that the Liberal opposition will not be seeking to oppose those amendments and will support them through the chamber.

The Liberal position is to put forward two amendments at clause 7. As set out in the second reading, they seek to make discrete amendments by deleting two clauses: one in relation to requiring the defence counsel or the defendant to disclose the defence, and the second, which flows from that, the ability of the judge to make comment in relation to the actions of the defence.

At the second reading I set out or attempted to articulate the Liberal Party's position. Our position is consistent with a mountain of submissions from the legal profession in respect of this position about these two clauses which they find particularly offensive. We take the view that it offends the fundamental principle of the right to silence, especially given we have an adversarial system of criminal justice and this would undermine the fundamental pillars of the workings of that system. We also note that, since the debate at the second reading stage, there have been great gains in the District Court made public by a new regime in that court.

So, the technical or maybe even moral imperative (if I could adopt some of the more extravagant language of the Attorney-General in the other place) seems to have transpired. I indicate to the chamber that we intend to continue to pursue the amendments as set out in McLachlan amendments Nos 1 and 2.

The Hon. P. MALINAUSKAS: I thank those members who have contributed to the debate on the bill. The intention of the bill is to improve how major indictable matters are dealt with in the criminal justice system. The changes are designed to enable courts, police, forensic services and prosecutors to focus their resources where they are most needed and to ease the pressure on our court system. The point of this reform is that the bill is to have the whole system working better.

It improves the system of prosecution, disclosure and decisions about the charges right from the outset of the court process. It provides discretion to the Magistrates Court to set realistic time frames for hearings in that jurisdiction. It changes the way subpoenas are issued in major indictable matters and introduces case statements after a matter has been committed for trial. Case statements are required to be prepared by both prosecution and defence to focus the parties and the court on the issues that are genuinely in dispute in a matter earlier in the process.

The bill also amends the existing sentencing discount regime to fit in with new time frames, while continuing to facilitate appropriate pleas being made earlier in the process. It also introduces a new discount, representing an incentive for cooperative conduct of the defence case. The government has not said that delays in the criminal justice system are the fault of the defendant or, indeed, defence counsel, as has been suggested by more than one speaker. On the contrary, we know that the causes of delays are multifaceted.

That is precisely why, before requiring anything from the defendant, we have introduced a tiered prosecution disclosure regime to improve prosecution disclosure. We have introduced a process of charge determination by the Director of Public Prosecutions to provide assurance to the accused and to victims of crime that the evidence supporting a charge has been scrutinised before it progresses through the court system. This is intended to reduce the number of matters where the prosecution later changes the charges and means that the accused can consider his or her position with greater certainty, earlier.

It is the prosecution who is called upon to first prepare a prosecution case statement. The prosecution case statement must include a summary of the alleged facts and a description of the evidence the prosecution may lead in relation to each element of the offence. This requirement is in addition to, not instead of, the existing obligations of prosecution disclosure. It is designed to ensure the defendant has all the material they need about the prosecution case against them before they are called on to prepare their own defence case statement and before they are required to make a decision about their formal plea in the superior court.

The Hon. Mr McLachlan has asked for clarity on what is envisaged will constitute a declaration of particulars of a defence and whether the prosecution will be able to rely on any subsequent inconsistent statement. While the sufficiency of compliance with the provisions as drafted will ultimately be a matter for the court, the bill has not sought the particulars of a defence. The provision requires the nature of the defendant's defence, if any, including particular defences, to be relied on. It may be a fine distinction, but it is an important one.

So, if the defendant wants to put the prosecution to proof on every aspect, on every element of the case, it is envisaged their response will say just that. If they intend to rely on a defence of claim of right to a theft charge, it is envisaged they would say that they are relying on a claim of right. They do not have to provide the particulars of that claim or, for example, indicate they are calling particular witnesses or presenting particular evidence to support it, unless they want to.

If they are charged with the offence of rape and they do not dispute that sexual intercourse took place but dispute that there was a lack of consent, it is envisaged that they will indicate that the nature of the defence is that there was not a lack of consent. Again, they do not have to identify any witnesses they might be calling or disclose evidence of Facebook posts or text messages, or any other evidence they might have that helps them to establish that assertion, if that is how they choose to run their case.

To answer the next point, it is intended that the prosecution could rely on any subsequent inconsistent statement. This means, in the rape example, if the defendant had indicated in their case statement that there is no dispute that sexual intercourse took place and they subsequently dispute that at trial, they would be entitled to be asked about that, if they give evidence. Of course, there is no obligation on an accused person to ever give evidence, and a decision by a defendant to remain silent and refrain from giving evidence cannot be used by a jury or finder of fact to draw any adverse inference. That situation remains the same.

However, if they do not give evidence but they otherwise conduct their case in such a way as to suggest that the fact of intercourse was in dispute, such as unnecessarily cross-examining the complainant about it, this is the type of thing that may be made the subject of comment to the jury. I stress the word 'may' there because before such comment could be made the permission of the court must be obtained. This is an important safeguard. 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 good reason for the departure from the case statement, or good reason for the noncompliance with the disclosure requirements, or simply other good reason not to permit the comment at all.

In summary, 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 eventually and inevitably raise it at trial now, but bringing the timing of that disclosure forward to pre-trial, instead of during trial, allows the parties to narrow the issues and focus trial preparation on those issues rather than wasting time preparing for every possible permutation of the facts. It does not remove the right to silence.

On a related point, the Hon. Kelly Vincent asked whether it would result in longer trials if the defendant put the prosecution to proof on every aspect of the case. The short answer is yes. That is part of the very mischief the government is trying to address by introducing this bill. The whole point of the case statement process is, as has been stated previously, to narrow down the issues that are genuinely in dispute so that the prosecution, and indeed the investigating police, forensic science services and the courts, do not waste time and resources gathering, preparing and hearing arguments over evidence to prove issues that are not even seriously in dispute. However, the defendant may, if they choose to do so, put the prosecution to proof; that is their right.

The Hon. Kelly Vincent also asked why the additional resources for case statements amount to approximately $400,000. I am not too sure where that figure came from, but I can say that funding for the reform proposed in the bill was approved, together with funding to permit the transfer of responsibility of circuit and country committals from SAPOL to the Office of the Director of Public Prosecutions as part of the 2016-17 budget.

The combined funding was as follows: $1.271 million in 2016-17, $1.109 million in 2017-18, $1.033 million in 2018-19, and 1.055 million in 2019-20. Of that, the funding specifically applicable to the reform contained in the bills is as follows: $521,000 in 2016-17, $532,000 in 2017-18, $542,000 in 2018-19, and $533,000 in 2019-20.

This funding was to provide additional resources to the Office of the Director of Public Prosecutions to enable the new process of charge certification to occur, including funding towards extra resources towards witness assistance staff to assist with consultation with victims during that process, as well as preparation of case statements. In addition, the Office of the Director of Public Prosecutions will provide training to SAPOL on the requirements of a preliminary brief.

There is another issue that I want to address before concluding my remarks. It was said by the Hon. Mr McLachlan during the debate that failures in regard to prosecution disclosure can cause miscarriages of justice, but failures in regard to defence case statements only impact supposed efficiency. Honourable members, this comment is indicative of the traditional view that the prosecution represents the interests of the state to secure a fair trial for an accused and that the victim had no role or voice in the criminal justice system at all.

As a society, we have progressed well past this archaic view of the criminal justice system. It is true that a failure by a defendant to identify issues in dispute and a failure to identify the issues that are not seriously in dispute at all impact on the efficiency of a prosecution with a flow-on effect across the justice system. This bill seeks to improve that process, but we all know that is only one part of it. It cannot be said that the impact is merely an issue of efficiency. The impacts are multiple. These include delays, trials not being reached, adjournments, as well as impacts on witnesses and victims of crime. In many cases, they impact on them significantly. This must not be overlooked.

Time and again, we hear stories from victims of crime saying that delays in the justice system have contributed to their ongoing trauma and to their overall dissatisfaction with the system. The government recognises this, and this is why the government is firmly of the view that defence case statements, like prosecution case statements, have impact far beyond efficiency.

It has been noted that there has been significant public consultation on this bill, and the original draft was amended to take the issues raised by interested parties into account, in particular those of the criminal defence bar and the Law Society of South Australia. At the end of the day, there are a number of interests to balance here—the interests of the community in having an effective justice system, the interests of those who are charged with committing criminal offences to receive a fair trial and the interests of victims of crime.

Some of the second reading contributions set out the view that efficiency measures should never compromise the right of an accused to a fair trial. The government completely agrees with this sentiment, and this bill does no such thing. The bill represents an appropriate balanced proposal, taking into account the submissions made by interested parties and balancing the competing interests of the community, victims of crime and the accused. I commend the bill to members.

The Hon. M.C. PARNELL: I thank the minister for putting those things on the record. When I made my second reading contribution, I went through a list of the people I had spoken to, and the minister has alluded to how plenty of members of the defence bar were on that. What I did not mention was that, on the recommendation of the Attorney-General, I also spoke to a retired judge who asked not to be quoted so I will not, but I am comfortable that I heard all sides and I mentioned the other day that I had spoken to the Director of Public Prosecutions as well.

This is a complex issue, and I guess in our attempt to narrow it down to some simple concepts, this idea of the right to silence and whether the bill does or does not impede the rights to silence has become a key question. As the minister pointed out, if a defendant chooses to remain silent, no adverse inference can be drawn from that, so the judges usually go to some lengths to explain to the jury that, 'Look, you didn't hear from the defendant but that doesn't mean they are guilty.' You have that routine line that the judge will give to the jury. But as to the bill we are looking at, despite the minister's assurances that it does not, I think it does impact the right to silence.

The idea of putting in a case statement—it is not a voluntary thing. It does not say that the defendant may put in a case statement, and it does not say that the case statement may include the nature of the defendant's defence, if any, including particular defences to be relied on; it is obligatory. You have to do it. The minister said, 'Well, the clever lawyer might find some words that get around that' and basically say nothing at all whilst complying with the letter of the law. I do not accept that. It may well be that some lawyers try to do that, but other lawyers, looking at the act and taking the words literally, will make disclosures that they would not normally be obliged to make, and that can have the effect of overturning the right to silence.

We have then got the consequences that flow from a defendant not completing a full case statement. They might just leave out that one bit. They might include everything else in their case statement but leave out:

…the nature of the defendant's defence (if any), including particular defences to be relied on...

And that very fact or the fact that their defence changes at trial may be used to direct the jury in an adverse way against the defendant. The minister pointed out, quite rightly, that it is at the discretion of the judge. What is interesting is that among every judge and lawyer I have spoken to the one thing they have agreed on is that it is very unlikely to happen—that judges are unlikely to use either failure to comply with the defendant case statement requirement or deviation from that defendant case statement to enable an adverse reflection to be made to the jury.

There are two ways you can approach that. One is to say, 'Well, it'll do no harm; leave it in.' The other one is, 'It does no good; take it out.' They are the two approaches we can take and, as I said the other day, the Greens are taking the second approach. That means that we will be supporting those two amendments that the Liberals are moving. I accept what the minister says—that the object of the exercise is to narrow down the issues in dispute. Most jurisdictions have those sorts of requirements. Certainly, the one I practised in many years ago—the environment jurisdiction—has pre-trial conferences where the idea is to see what is agreed and what is not; can you narrow down the issues in dispute?

The fact remains, however, that if a defendant wants to put everything in dispute, that is their right. It can be very unfortunate, and it can lead to the sort of unnecessary trauma that the minister referred to, but it is the price we pay in our legal system for guaranteeing the utmost fairness in the system. It is the job of the prosecution to prove the case beyond reasonable doubt. They have to prove every element of the case, and if the defendant wants to put them to that proof then they can. They will miss out on sentencing discounts, cooperation discounts and a whole range of other things, but the price we pay for our justice system is that sometimes these things happen.

The other point that I would make—and this might seem to be quite out of left field—relates to the sort of offences we are talking about: indictable offences. People have been talking about rapes, murders and things like that, but I am still very nervous that in the High Court the South Australian government is supporting Tasmanian anti-protest laws. Whilst most of those might be seen to be not in the indictable offence range, it is not beyond the realms of possibility that civil disobedience offences could become indictable. What I will say is that one of the tactics of the non-violence protest movement, which came out in the Franklin River case, is occupying the forces, occupying the law, taking as much time as you can and bogging down the police in their pursuit of unjust laws. That is why 1,300 people got arrested at the Franklin River.

Their tactic was to drag out the resources of the state as much as you can, and they won, and they were legitimate tactics. I am not saying that at present in South Australia we have anti-protest laws that are in the indictable range. What I am saying is that South Australia is supporting Tasmania's anti-protest laws in the High Court, and that causes me a great deal of disquiet. That is not why I am voting for these amendments; I just thought I would throw that in. But the fact remains that despite the minister saying this does not infringe the right to silence, I think it does in practice. Whilst we were urged to move and to support many more amendments than just these ones, I think this at least overcomes the main evil in the bill.

The Hon. A.L. McLACHLAN: It may come as no surprise to honourable members that I oppose just about everything that came from the minister. To a practising lawyer, it is sad that a progressive government would make those arguments—sad—and at the same time, in another day, laud the great achievements of Don Dunstan. It is offensive to anyone who understands how the criminal justice system works that those arguments would be made.

I have great empathy, as does every practising lawyer who is an officer of the court, with the trauma the victims have, but before we can seek to heal the victim's hurt we actually have to convict someone. We have to convict them. The state has made the decision that someone is guilty. What we are discussing here is the process before that conviction. To dredge in the shallow argument of balancing competing interests in a court structure is simply not tenable in this debate.

The Hon. P. Malinauskas: Why not?

The Hon. A.L. McLACHLAN: Because you are trying to inject civil court principles into a criminal system that is based on advocacy. If you want to deconstruct the whole court system and create an inquiry system similar to the French or continental system, then we can debate that, but today we are debating the simple principle that the prosecution has all the power, resources and legislation behind it and a single individual may or may not be able to afford an adequate defence counsel.

Therefore, the principles of our justice system are that the state must prove its case and then the defence can respond. It always wants to respond early if the client is guilty. In fact, you have an obligation to advise your client to plead guilty if there is sufficient evidence, but time and time again, in the experience of defence counsel—my own and those whom I consulted, and the prosecutors I consulted—there is continual last-minute delivery of key evidence.

I take particular issue in relation to the criticisms of the issue regarding efficiency. Defence counsel always want to bring it on as soon as possible, particularly if their clients are in remand. They have an incentive to do it because there will be, as a consequence if this bill passes and the sentencing bill coming in, substantial discounts to plead early. That is the driver: the early release of evidence. Why haven’t these resources, that have been indicated by the minister, already been delivered to the DPP, and SAPOL been trained, and then we could see if the current system works? Then perhaps, on the minister's argument, we might give consideration to this provision.

The Liberal Party remains unpersuaded. I am also very disconcerted by the word 'envisaged' that was littered in the speech that was prepared, probably, for the minister. We do not know what is going to be required, what is going to be demanded in the court rules. Court rules change. They do come through the Legislative Review Committee, but it is a rare thing for the parliament to override the court rules. We do not know what the detail is that is going to be required for these defence statements. I would say to honourable members that the issues remain. The divisions between those who support these amendments and the government's position is not healed. We will proceed with the amendment.

Clause passed.

Clauses 2 to 6 passed.

Clause 7.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 9, after line 41—After inserted section 103 insert:

103A—Compliance with principles under Victims of Crime Act 2001

If, in any proceedings before a court, the prosecution seeks to amend, or to not proceed with, a charge of a serious offence (within the meaning of the Victims of Crime Act 2001), the prosecutor must advise the court whether any consultation has occurred with a victim in accordance with section 9A of the Victims of Crime Act 2001.

My amendment simply states that if the prosecution amends the charge or decides not to proceed with the charge, then there is a requirement for the court to be advised whether the victim has been consulted or not. I understand there is already a requirement in the Victims of Crime Act for the victim to be consulted in such circumstances; however, this amendment will see that this information is passed on to the courts and provides an opportunity for the courts to ask questions about the consultation.

The court may want to know whether or not the victim consented to the changes. Whilst I accept that the courts could seek this information independently, this requirement will act as a prompt and provide comfort to victims, as they will know for certain that the court knows whether or not they have been consulted. It is an avenue for victims to have a voice in a process that they feel excludes them, notwithstanding the fact that it can have a profound impact on them and their families. I commend the amendment.

The Hon. P. MALINAUSKAS: The government, of course, supports victims of crime and is committed to ensuring that all the principles governing the treatment of victims of crime set out in the Victims of Crime Act 2001 are upheld. Indeed, it is the intention of the bill that outcomes for victims of crime will be improved by reforming how major indictable matters are dealt with in the criminal justice system. This will be achieved by reducing adjournment and other delays, ensuring that trials are reached when they are listed and encouraging appropriate early guilty pleas. There will be greater certainty about the matters that are proceeding and earlier finalisation of matters, allowing victims of crime to put the court process behind them sooner.

The amendment is opposed by the government because, in the government's submission, it is unnecessary. The Victims of Crime Act gives statutory recognition to victims of crime and the harm they suffer from criminal offending. One of the objects of that act is to establish principles governing how victims of crime are to be treated by public agencies and officials. Section 9A of the Victims of Crime Act falls within the part of that act setting out the declaration of principles governing the treatment of victims.

It provides that a victim of a serious offence should be consulted before any decision is made to charge an offender, amend a charge or to not proceed with a charge, as well as when it is intended to apply to investigate mental competence and mental fitness of an offender. Section 5 of the Victims of Crime Act makes it clear that public agencies and officials are required to have regard and give effect to the principles set out in that act, insofar as it is practicable to do so, having regard to the other obligations binding upon them.

It also makes it clear that principles are not enforceable, nor do they affect the conduct of criminal proceedings. In addition, within the Victims of Crime Act, the commissioner for victims of crime is provided with power to supervise compliance with the act and to take steps on behalf of victims of crime if he is satisfied that there has been a failure to comply. Of course, honourable members are aware that public agencies and officials, such as the DPP, police and courts, have other obligations in the conduct of criminal matters, such as to ensure a fair trial for the accused as well as obligations to the community. These must be borne in mind and balanced against the principles.

The proposed amendment introduces a requirement for the prosecutor to advise the court whether consultation has occurred with the victim of an offence in accordance with section 9A of the Victims of Crime Act 2001 whenever they seek to amend or withdraw a charge of a serious offence. The requirement on a prosecutor to give effect to section 9A is contained within the Victims of Crime Act—it already exists. This amendment does not change that requirement.

The Victims of Crime Act already provides for the Commissioner for Victims' Rights to oversee compliance. Advising the court does not alter the requirement which already exists, nor does it overtly give the court the power to do anything in response to the information because to do so would be contrary to the Victims of Crime Act itself. However, it does open up the possibility that the court will be asked to hear disputes about compliance with the Victims of Crime Act and to permit the conduct of criminal proceedings to be affected by the outcome. In this way, the amendment has the potential to undermine the Victims of Crime Act.

The Victims of Crime Act was carefully drafted to include the proviso that the principles do not affect the conduct of criminal proceedings. No doubt this was in recognition of the complexity of balancing the interests of victims of crime with the need to uphold the protection of an accused to a fair trial and the need to balance the competing interests of the accused, the community, victims and witnesses within criminal proceedings. The amendment is opposed by the government.

The Hon. M.C. PARNELL: The thrust of what the minister just said is that these provisions are unnecessary because the victims of crime legislation already requires the prosecution to be consulting the victims, including, say, with a downgrading of charges. But I think that the amendment before us is slightly different from that. Certainly, the obligation, as the minister has explained, exists, but the question remains: what is the consequence of noncompliance? The minister's response was: well, the Commissioner for Victims' Rights will be onto them.

It seems to me that, with the range of cases we have, the number of cases, the number of victims, that is a very poor regulatory tool. It may well be, if we look at a situation where there was no consultation—let's say the prosecution downgraded a charge and just decided, for whatever reason, not to tell the victim that that is what they had done. It would seem to me that the victim is not able to front up to court as a party and stand up in the proceedings and say, 'Excuse me, what's this manslaughter business? They were suppose to charge them with murder—they never talked to me about this.' That is just not going to happen. I cannot see it happening.

If the honourable member's amendment gets through, then it says that the prosecutor must advise the court. I think the honourable member might think this will do more than it does. He used the example of where a victim does not agree with the downgrading of charges. That is often going to be the case: they are not going to agree. I do not think there is much they can do about it. Ultimately, the prosecution will look at what evidence it has and what charges it thinks it can proceed with. It is not the role of the victim to say, 'No, no, no, I insist on you pursuing the murder charge, forget this manslaughter business'—that is just not going to wash.

I do not think it will give the victim more rights, but it will put a great deal of pressure on the prosecution to make sure they do what the victims of crime legislation says they have to do and talk to the victim about downgrading or dropping charges. The best way to make sure they have done it is to provide an obligation for them to tell the court that they have done it.

I do not think the trial then morphs into a 'did the prosecution do the right thing?' scenario. All the prosecution will do is say to the judge, 'We've downgraded the charges, we told the victim that's what we're doing', and the judge might say, 'What did the victim think about that?', and the answer would be, 'Not very happy', but, honestly, I do not think it has much further to go than that—I think that is just the way it is going to be. At least it guarantees that the prosecutors will be complying with their obligations under the victims of crime legislation.

So, I do not think this does any harm. I think it provides some checks and balances that the existing obligations will in fact be carried out the way parliament intended, so the Greens will support the Darley amendment.

The Hon. A.L. McLACHLAN: I indicate to the council that the Liberal Party will support the amendment. My view, the Liberal Party view, is similar to the Hon. Mark Parnell's. The insertion of this provision is simply an obligation to advise the court. It does not go any higher than that. I cannot see why that would cause difficulties in the administration of justice in this state. As the Hon. Mark Parnell has articulated, as far as I see it (and I might be corrected by the Hon. John Darley) it is a transparency provision to ensure that everybody understands what the victims of crime know or do not know. The Liberal Party is proud to support it, given that we have great empathy with the issues associated with the victims of crime.

Amendment carried.

The Hon. A.L. McLACHLAN: I think enough has been said between the minister and me in relation to these matters, although I would put on the record that there was one thing I neglected when I was rebutting the minister's aggressive assertions against the criminal justice system. I alluded to this in my second reading speech. Many of the defendants, particularly if they have a degree of intellectual disability, are unable to formulate a defence, so there is considerable pressure on the defence counsel to do the best for them. There are those who may be influenced by drugs and alcohol who cannot formulate their defence. That is why you need the complete prosecution case before deciding on the defence in certain circumstances. I only make that submission by way of completeness. So, I therefore move my amendment:

Amendment No 1 [McLachlan–1]—

Page 27, lines 31 and 32 [clause 7, inserted section 123(4)(g)]—Delete inserted paragraph (g)

The Hon. P. MALINAUSKAS: The government opposes this amendment. The amendment relates only to clause 123(4)(g), which requires the defence case statement to include the nature of the defendant's defence, if any, including particular defences to be relied on.

There are a few things to quickly say about this, in addition to the remarks that have already been made at clause 1. This provision is in almost identical terms to the provision in the New South Wales legislation, section 143(1)(b) of the New South Wales Criminal Procedure Act 1986. The equivalent provision has been in the New South Wales legislation since 2013 and has not caused any of the problems suggested in that jurisdiction.

In addition, the provision is not dissimilar to the existing section 285BB of our Criminal Law Consolidation Act 1935. Section 285BB of the Criminal Law Consolidation Act already permits a court to order a defendant to give the DPP written notice of an intention to introduce evidence to establish various defences, including self-defence, provocation, automatism, accident, necessity, duress, claim of right and intoxication.

The provision specifies that before the court makes such an order, it must be satisfied that the prosecution has provided the defence with an outline of the prosecution case so far as it has been developed on the basis of material currently available and that the prosecution has no existing but unfulfilled obligations of disclosure.

That provision commenced in our Criminal Law Consolidation Act in 2007; that is, it is in the existing legislation in SA and has been for 10 years. The difference between that provision and the provision under the bill is that, under the existing provision, the prosecution has to apply to the court for orders. Under this bill, similar obligations apply to the parties, but they come into effect as a matter of course. In that sense, the content of the provision sought to be deleted is not completely new to the law in South Australia.

The Hon. A.L. McLACHLAN: Quickly, a rebuttal of that: it is certainly not, in my research, a universal opinion that everything is working well in New South Wales. I always think it is a weak argument for a chamber to say, 'Well, in New South Wales or Victoria they do X, and that is why we should do the same.' I think it is an argument I too often hear in this chamber and outside of it. It is certainly not my understanding that it is well received. There is increasing academic analysis that it is having a counterproductive effect.

The Hon. M.C. PARNELL: Just to help you with the numbers, the Greens are supporting the amendment.

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

The committee divided on the amendment:

Ayes 13

Noes 6

Majority 7

Amendment thus carried.

The Hon. A.L. McLACHLAN: I move:

Amendment No 2 [McLachlan–1]—

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

The Liberal Party has articulated its position. This amendment deletes subsection (6), which provides for the judicial officer to make comment to the jury. It is our view that this, whilst not technically consequential in the context of this council, flows from the offensive elements of paragraph (g), which the chamber just agreed to delete.

The Hon. P. MALINAUSKAS: The government opposes this amendment. The proposed amendment seeks to remove the provision providing for comment to be made to the jury when a defendant conducts their case in a manner inconsistent with the defence case statement and fails to comply with the disclosure requirements. There appears to be a misguided belief that the provision will be used in a way that is unfair to the accused.

It must be noted that comment can only be made to the jury with the permission of the court. This is an important safeguard and 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 good reason for departure from a case statement or good reason for the 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 than probative on a daily basis, and we trust them to do so.

There is no reason to think they will not continue to weigh up the competing issues and make the correct decision in this context. I also point out that both New South Wales and Victoria have similar provisions—powerful arguments—permitting 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. WA also has a similar provision without the leave of the court proviso as well.

The provision seeks to ensure that a defendant cannot play games. If the accused tells the prosecution they are going to say one thing and then go to court and say the opposite, then, in the absence of a good reason for the departure, why should the jury not know about that? The amendment is opposed.

The Hon. M.C. PARNELL: To reinforce what I said before, the Greens will be supporting this amendment. The minister has admitted that it will not be often used, and that raises the argument: if it is not going to be often used, you can probably safely take it out. I agree with the Hon. Andrew McLachlan that the main driver is going to be the sentencing discounts. That is really what is going to drive cooperation, rather than this provision, which, as the minister has admitted, will not often be used. I would rather see it removed altogether.

The CHAIR: The Hon. Mr Darley, I think you have already indicated you are supporting the amendment.

Amendment carried.

Progress reported; committee to sit again.