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Criminal Code Amendment (Judge Alone Trials) Bill 2021

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Tuesday, 23 November 2021

Tags: Justice, Legislation

Dr WOODRUFF (Franklin) - Mr Speaker, the Greens welcome this bill and the Criminal Code amendment to make it possible for Tasmania to join with the other Australian states and many other parts of Commonwealth countries that have the Westminster system in enabling the option for judge alone trials in prescribed circumstances.

It seems the consultation process elicited responses that generally welcomed this move. The Australian Lawyers Alliance, with their comments, make very strong statements about the right of defendants to make the final decision. Their view is that the liberty and reputation of the accused is on the line. They say that if an accused person believes they have a better chance of getting a fair trial before a judge, rather than a judge and jury, they ought to be able to exercise the right to pursue that course irrespective of what anyone else thinks.

I note that that is not where this bill has landed but it does always require, except in exceptional circumstances or prescribed circumstances, that the accused must give informed consent to a judge alone trial. The Tasmanian Bar was even a little bit stronger It said it 'applauds this policy and the legislative initiative as it will provide greater flexibility for trials of indictable criminal matters'. They had some issues with the draft bill, as did the ALA, and I want to go through some of their concerns.

I want, through the minister, to thank the staff of the department who provided a very comprehensive briefing. We had a very interesting conversation about the context for judge alone trials and where we have landed relative to other jurisdictions. It was very helpful.

One of the concerns of the Australian Lawyers Alliance was that proposed section 361AA(3)(a) was to have enabled an application to be held that if an accused wants to make an application for a judge alone trial and it falls outside of the prescribed period, which was two months in the draft bill and is now three months in this bill, that they would have to show exceptional circumstances. It was pointed out by the ALA and, I think, the Bar that that was not defined enough in the bill. But 'a reasonable explanation' has been added in since that draft bill to the amendment bill we have before us. That is standard in Tasmanian legislation and would be something that would be court determined.

The Tasmanian Bar also felt that the stated time limit was overly prescriptive but the addition of the reasonable explanation enables the opportunity for that to be extended.

I will talk about the importance of juries and the benefits of juries. We are the last state in Australia to move to a judge alone trial. The very basis of our justice system relies in part on the role of the jury. The benefits of juries are not something to be discarded. If we move to anything other than a jury trial for an accused person in criminal matters, then it has to be done with a great deal of caution.

As the minister has said, the role of the jury is to provide a perspective, which is as a body of persons representing the community view, and the community view, as we have seen on many issues, particularly more controversial issues, is varied. It provides a space in the justice system for the eyes of the community to come to bear on the final decision made about whether a person is to be held innocent or guilty of the crime they have been charged with.

In other jurisdictions, such as the United Kingdom, where there has been judge alone trials for some time, England and Wales have judge alone trials, and England has been reluctant to impede the use of juries in even highly contentious circumstances. They have had very limited exceptions to the existence of giving effect to a trial without jury.

I am reading from some research done by the University of Queensland Pro Bono Centre, Balawyn Jones, Ravi Gosel and Lachlan Campbell, entitled Tongan Jury Reform, a comparative analysis of jurisdictions and recommendations in July 2015, so not too long ago. They make the point, in relation to England, that a non-jury trial in that jurisdiction may only occur when:

… there is evidence of a real and present danger that jury tampering would take place and notwithstanding any steps, including the provision of police protection, which might reasonably be taken to prevent jury tampering. The likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.

It was proposed in England that non-jury trials be used in the cases of complex fraud but that was not eventually legislated into force. The Chief Justice of England, at one point when rejecting an application for a non-jury trial, 'determined that the trial of a serious criminal offence without a jury … must remain the decision of last resort, only to be ordered when the court is sure (not that the court entertains doubts, suspicions or reservations) that the statutory conditions are fulfilled'. That was in 2010.

The Scottish justice system had an investigation that was called the Modern Scottish Jury Report and there was discussion within that on trial without a jury. They made the point that the government did not wish to advance any firm proposals for dispensing with trial duties, and that there has to be a balance in the burden of excessively long or complex trials on jurors and, on the other hand, protection of proceedings and fairness to the accused. In the balance of those two matters, they landed with a recommendation to not dispense jury trials in that jurisdiction.

The point I am coming to relates to the circumstances in which it would be determined. The court needs to be satisfied that the accused understands the nature of the order and the implications of the order. They need to understand and be confident that there is informed consent. They also need to make a determination that the making of an order is in the interests of justice. They are the circumstances under which most applications for a trial by judge-only would be made, but an application for a judge-alone trial is subject to exceptions in section 63 of the Juries Act 2003, which relates to influencing or threatening jurors, where it says:


A person must not -

(a) influence any juror or potential juror by any means, other than the production of evidence and argument in open court; or

(b) injure or threaten to injure, or cause or threaten any detriment to, any other person on account of anything done by the person as a juror or for the purpose of influencing the person as a juror; or

(c) accept or agree to accept any benefit on account of anything done or to be done by the person as a juror or potential juror; or

(d) prevent, obstruct or dissuade another person from attending as a juror or potential juror.

Minister, how would a court make a determination about influencing or threatening jurors? What sort of evidence would they usually need? What sort of confidence or surety would they typically need when making a decision about whether there has been influencing, or jury tampering has occurred?

In the last part of your second reading speech, you point to the impacts of COVID 19 and the significant challenges of the pandemic. You finish by saying that 'the bill seeks to improve access to justice within our criminal justice system, not only due to COVID-19, but other circumstances.'. I do not believe you are saying this, but do you see this as a hastening, a speeding-up of the justice system, by going to judge-alone trials?

Ms Archer - No. It just might have the indirect impact that it can obviously -

Dr WOODRUFF - The consequential impact.

Ms Archer - Yes. Rather than cause delay, or stop a trial because there is tampering, et cetera. It gives the judge an alternative that they would not otherwise have to hear a matter.

Dr WOODRUFF - So, it is not in any way about speeding up the system, because that would potentially have implications for the quality of the justice system.

Ms Archer - There are no provisions that allow for that.

Dr WOODRUFF - You are right, there are no provisions that allow for that. It is good then that is not the general tone that this has been discussed within.

Ms Archer - No, but Victoria did it because of COVID-19, so I was making that observation.

Dr WOODRUFF - We are comfortable and pleased to see that the bill has been adjusted from draft stage to accommodate the concerns that different organisations had when they made submissions. We are happy to support this change in the system, and the opportunities for improving justice that it sounds as though it will provide.