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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-03-24 Daily Xml
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Juries (Prejudicial Publicity) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 March 2015.)

The Hon. A.L. McLACHLAN (17:45): I rise to speak on the Juries (Prejudicial Publicity) Amendment Bill 2015, and I indicate that the opposition will oppose the bill. The bill was introduced by the Attorney-General on 11 February this year, and it is in all respects the same as the 2014 bill, which lapsed as a result of parliament being prorogued. The bill proposes to amend the Juries Act 1927. The Juries Act sets out the rules that are to apply to the empanelling and selection of juries and all the rules surrounding how juries operate in South Australia.

The law on trials by judge alone are set out in section 7 of this act. It permits that, in circumstances where an accused applies, they are able to have their case heard by a judge alone rather than a jury. They do not have to have a jury, but they are entitled to have a jury, and the act sets out the statutory protection for that right. The bill before us proposes to enable the court to order a case be heard by judge alone, even if the accused does not want a trial by judge alone, in the circumstances where the accused applies to stay the case on grounds that there has been prejudicial publicity sufficient to threaten a fair trial.

Usually it is the accused who elects to have a trial by judge alone. The right to a trial by jury is something that should be protected. For centuries trial by jury has been the sacred cornerstone of our criminal justice system. It is a right that has been protected by generations before us, and was designed to afford a safeguard against wrongful conviction and capricious justice. The potential loss of a person's right to a jury trial is very significant. The opposition therefore has given the bill serious consideration.

The Law Society of South Australia has indicated that it also opposes the bill, and indicates that it is not satisfied that there is even any need for it. This is particularly so, given that the High Court recently lifted the bar so high for accused persons applying for a permanent stay based on prejudicial publicity that it is unlikely that such an application will ever succeed. The Law Society has also, rightly in our view, pointed out that the proposed amendment means that the right to trial by jury would be lost, not by virtue of the conduct of the accused but by virtue of the conduct of the media, which has an interest in punishing newsworthy items.

It is the opposition's view that it would be unfair to strip an accused person of this democratic right, solely because of the way the media has acted in its reporting. It is also unclear how the bill would discourage the misuse of social media, and further raises the question of why the accused should be encumbered with a problem that is not of their own making.

The Law Society also raise in its objection, which we should thoroughly reflect upon in this chamber, that the likely practical implication of this bill could be that the media would not feel constrained in the manner in which it reports serious criminal cases because the existing safeguard of the court permanently staying the trial is unlikely ever to be exercised.

The opposition also has concerns that the bill, if enacted, may have the unintended effect of intimidating the accused into not applying for a stay for fear that they will lose their right to a jury and be forced to have a trial by judge alone. There are situations where the accused may be very reluctant to have a trial by judge alone, and forcing an accused into that situation is something the opposition does not and cannot support in good conscience.

The government's claims that this bill is necessary to ensure that a fair trial is not threatened, or that an accused might successfully obtain a continuous stay of proceedings, is without example to my knowledge. My research is that there has never been a case, at least in recent memory, where a stay of a criminal trial has been granted based on adverse publicity alone.

The member for Bragg in the other place cited examples where applications for a stay of proceedings have been made, but in each case prejudicial publicity was only one of a number of grounds upon which the applications were made. The Liberal opposition does not believe that right-by-jury trials should be curtailed because of one case.

It is important that we consider that at the time the government first introduced this bill it was dealing with the potential of an application to stay proceedings in a particular case that they felt may arise, which is publicly known as the Families SA carer's case. While the accused has pleaded guilty, the opposition muses over whether this bill was introduced at the time simply to mitigate the adverse fallout from these proceedings. Again, it is our view that the matter is insufficient to justify such a diminution of the inherent right of a citizen of South Australia to have a jury trial. I have further comments for the committee stage.

Debate adjourned on motion of Hon. J.M. Gazzola.

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