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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-06-19 Daily Xml
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CRIMINAL LAW CONSOLIDATION (DOUBLE JEOPARDY) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 17 June 2008. Page 3312.)

Clause 5.

The Hon. S.G. WADE: Just as I thanked the government for the briefing on the comments by the justices, I thank the government for the courtesy of adjourning the council after the second set of amendments were identified so we could consider the suggested amendments from the DPP. Having done so, the opposition supports them as clearly they are wise. Also, the break gave us an opportunity to reflect further on the issue of the balance between the access of parliament to the best advice available from the public sector and the risk of the judiciary being drawn into political debate. Members will recall that that came up because of the comments of the Attorney-General about a magistrate's advice being 'daft and delusional'. On reflection, the best option is probably to change the Attorney-General, and we will do what we can to facilitate that at the earliest opportunity. We support the amendments to clause 5.

The Hon. P. HOLLOWAY: I move:

Page 3, line 28 [clause 5, inserted section 331(1), definition of administration of justice offence, (e)]—

Delete 'an offence against' and substitute:

'a substantially similar offence against a previous enactment or'

Page 4, line 12 [clause 5, inserted section 331(1), definition of Category A offence, (h)]—

Delete 'an offence against' and substitute:

'a substantially similar offence against a previous enactment or'

These and the second lot of amendments do precisely the same thing, are in the same clause and may be considered together. A late submission from the DPP was received by the government. The effect of the submission was that the legislation was rightly expressed to apply to offences committed in the past, but the list of offences to which the various methods to retrial were drafted referred only to recent manifestations of the relevant offences and not to versions of those offences as they existed in the past. The modern versions of the offences did not, of course, exist then, so the object of the legislation would be hampered significantly. The criticism is quite right: it should be fixed, and that is what these amendments do.

Amendments carried.

The Hon. P. HOLLOWAY: I move:

Page 7, after line 16 [clause 5, inserted section 336(1)(b)]—

After subparagraph (ii) insert:

and

(iii) any other matter that the Court considers relevant.

This clause defines the discretion of the court to determine whether the new trial would be fair. The Chief Justice thought the wording as the bill stands is too confining. I think it right that the court should be given an amplitude of discretion.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 7, line 38 [clause 5, inserted section 336(4)]—Delete 'indictment' and substitute: information

Page. 8—

Line 2 [clause 5, inserted section 336(5)]—Delete 'indictment' and substitute: information

Line 8 [clause 5, inserted section 336(5)(b)]—Delete 'indictment' and substitute: information

The Chief Justice commented that he thought the word 'indictment' should be replaced by the word 'information' wherever it appears, and that is being done.

Amendments carried.

The Hon. P. HOLLOWAY: I move:

Page 8, after line 8 [clause 5, inserted section 336]—After subsection (5) insert:

(5a) If, more than 2 months after an order for the retrial of a person for a relevant offence was made under this section, an information for the retrial of the person for the offence has not been presented or has been withdrawn or quashed, the person may apply to the Full Court to set aside the order for the retrial and—

(a) to restore the acquittal that was quashed; or

(b) to restore the acquittal as a bar to the person being retried for the offence,

(as the case requires).

The Chief Justice pointed out that, although the bill provided for the removal of the bar of acquittal at the point at which the barrier to retrial had been passed, it did not provide explicitly for the restoration of the acquittal should the retrial fail for any reason. The government agrees this should be done. This and two other amendments (to be moved later) achieve that end.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 9—

Line 16 [clause 5, inserted section 337(4)]—Delete 'indictment' and substitute: information

Line 20 [clause 5, inserted section 337(5)]—Delete 'indictment' and substitute: information

Line 26 [clause 5, inserted section 337(5)(b)]—Delete 'indictment' and substitute: information

These amendments are consequential and relate to using the word 'information' instead of 'indictment'.

Amendments carried.

The Hon. P. HOLLOWAY: I move:

Page 9, after line 26 [clause 5, inserted section 337]—

After subsection (5) insert:

(5a) If, more than 2 months after an order for the retrial of a person for a Category A offence was made under this section, an information for the retrial of the person for the offence has not been presented or has been withdrawn or quashed, the person may apply to the Full Court to set aside the order for the retrial and—

(a) to restore the acquittal that was quashed; or

(b) to restore the acquittal as a bar to the person being retried for the offence,

(as the case requires).

That amendment is consequential on the one just moved. The Chief Justice pointed out that, although the bill provided for removal of the bar of acquittal at the point at which the barrier to retrial had been passed, it did not provide explicitly for the restoration of the acquittal should the retrial fail for any reason. This is one of the amendments that achieve that.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 10, after line 6 [clause 5, inserted section 338(1)(b)]—

After subparagraph (ii) insert:

and

(iii) any other matter that the Court considers relevant.

This is consequential on an earlier amendment.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 10—

Line 21 [clause 5, inserted section 338(4)]—Delete 'indictment' and substitute: information

Line 25 [clause 5, inserted section 338(5)]—Delete 'indictment' and substitute: information

Line 31 [clause 5, inserted section 338(5)(b)]—Delete 'indictment' and substitute: information

Again, these amendments replace the word 'indictment' with the word 'information'.

Amendments carried.

The Hon. P. HOLLOWAY: I move:

Page 10, after line 31 [clause 5, inserted section 338]—

After subsection (5) insert:

(5a) If, more than 2 months after an order for the trial of a person for an administration of justice offence was made under this section, an information for the trial of the person for the offence has not been presented or has been withdrawn or quashed, the person may apply to the Full Court to set aside the order for the trial and to restore the acquittal as a bar to the person being tried for the offence.

This is consequential on amendments Nos 6 and 10.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 11, lines 13 to 21 (inclusive) [clause 5, inserted Part 10 Division 5]—

Delete Division 5 and substitute:

Part 10A—Appeal against sentence

340—Appeal against sentence

Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—

(a) impose the sentence that should have been imposed in the first instance; and

(b) order that the sentence—

(i) will be taken to have come into effect on a date before the date of the order; or

(ii) will take effect on a date on or after the date of the order.

This provision in the bill is about the practice of courts on appeal against sentence to discount an increase in the sentence on the basis that the offender has been subjected to a form of double jeopardy because he or she has faced a second hearing. The policy of the government on this point is clear: it is that there is not a question of double jeopardy here, nor should the sentence be discounted. The court on prosecution appeals against a sentence will interfere with the original sentence only in exceptional cases. It will interfere where there is some point of principle. It will interfere where there is manifest inadequacy. It will interfere where the sentence is such as to shock the public conscience. These criteria are well established.

Once that initial threshold is reached, there should be no question of discount just because it happens to be an appeal. While the policy is clear, the way to deal with it in statutory words without unintended or unforeseeable consequences is not so clear. There are no successful models to follow. The clause in the bill as introduced into the council received late comment. We have done our best to address those comments, and this amendment is proposed as a compromise wording.

Amendment carried; clause as amended passed.

Remaining clauses (6 to 8) and title passed.

Bill reported with amendment.

Third Reading

Bill read a third time and passed.


At 18:01 the council adjourned until Thursday 3 July at 11:00.


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