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2012
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
COURTS
LEGISLATION AMENDMENT BILL
2012
EXPLANATORY
STATEMENT
Presented by
Mr Simon Corbell
MLA
Attorney-General
COURTS LEGISLATION AMENDMENT BILL 2012
Background
On 16 December 2011 the Supreme Court announced that it will change aspects
of its case management and listing practices with a view to reducing the time
taken to finalise matters lodged in or committed to the Court.
The Supreme Court’s decision to adopt a new approach to case management arose from the review of case management and listing procedures conducted by Justice Hilary Penfold of the Supreme Court and the Director-General of Justice and Community Safety. The purpose of the review was to identify case management practices that could be used to reduce delays in the Supreme Court.
The review was informed by a Reference Group, comprising of the Director
of Public Prosecutions, the CEO of Legal Aid ACT, the President of the Bar
Association, and the President of the Law Society. Justice Penfold and the
Director-General also consulted current and retired Judges from other
jurisdictions, including experts who had undertaken reviews of case management
elsewhere in Australia.
The consultation with other jurisdictions and
discussions by the Reference Group identified areas for improvement in criminal
and civil case management in the ACT Supreme Court. The review identified a
number of measures to improve efficiency into the long term and to address the
current backlog.
A discussion paper was prepared to elicit information from all interested
stakeholders. Following the release of the paper in August 2011,
Justice Penfold and the Director-General met regularly with Legal Aid ACT,
the Director of Public Prosecutions, the Bar Association, the Law Society,
and individual legal practitioners to further discuss the issues raised and to
achieve consensus on how to improve case management and listing procedures in
the Supreme Court.
New approach to case management in the Supreme
Court
The main change announced by the Supreme Court was the adoption of a docket
case management system, covering both civil and criminal matters. Under the
docket system each judicial officer will manage their ‘docket’ with
a view to encouraging early and efficient resolution of matters.
The
adoption of a docket system will assist the Court to take control of cases to
make the best use of the time and resources of the Court. Consultation with
other jurisdictions during the review confirmed that judicial control over case
management functions, including listing, is essential to court efficiency.
Docket systems have been successfully implemented in the United States
and locally in the Federal Court, the Family Court and the Federal Magistrates
Court, where they have been proven to improve efficiency.
Another major
change announced by the Court was an expansion of the existing requirements for
the exchange of material in criminal matters. The new requirements are designed
to ensure that the prosecution has properly considered its position, and that
the defence is fully aware of the prosecution case, before the matter is
assigned to a docket judge.
This Bill makes the following legislative amendments to assist the new
docket system to be implemented by the Supreme Court:
• Amendments to
the Supreme Court Act 1933 to provide that the election for a judge alone
trial must be made prior to the identity of the trial judge being known to the
accused or to his or her legal representatives and before any time limit
prescribed under the Court Procedures Rules. The amendments also remove the
existing requirement for the election to be made before the court allocates a
date for the person’s trial has been removed as this is not consistent
with the Court’s proposed new docket system.
• Amendments to the
Crimes (Sentencing) Act 2005 to clarify that the Magistrates Court can
order a pre-sentence report at the time they commit an offender to be sentenced
in the Supreme Court. The amendments also remove a provision in the Act dealing
with the distribution of pre-sentence reports from the courts to the parties.
This is a procedural matter which would more appropriately be dealt with in the
Court Procedures Rules.
• Amendments to the Crimes (Sentencing) Act
2005 to permit a reduced sentence to be imposed where an offender has
facilitated the administration of justice by cooperating to ensure that the
trial is focused as efficiently as possible on the real issues in dispute.
Human Rights Implications
The Bill contains a number of provisions which engage rights under the
Human Rights Act 2004.
The policy behind this Bill is to support
changes that the Supreme Court will make to its practices that will support the
right to be tried without unreasonable delay (section 22(2)(c) of the Human
Rights Act 2004).
The amendments do not substantially interfere
with the human rights in the Human Rights Act 2004, however the
amendments to section 68B of the Supreme Court Act 1933 gives rise to
consideration of human rights, specifically the right to fair trial in section
21 of the Act.
The amendment does not limit the right to a fair trial
including the right to equal access, the right to legal advice and
representation and the right to procedural fairness. The amendment does not
affect a person’s ability to have their criminal charges ‘decided by
a competent, independent and impartial court or tribunal after a fair and public
hearing (section 21(1) of the Human Rights Act 2004). The amendment is
solely concerned with ensuring that the timing of an election for a judge alone
trial is more appropriately matched to processes that will exist under the
Court’s proposed new docket system.
Clause 1 Name of Act – states the title of the Act as the
Courts Legislation Amendment Act 2012.
Clause 2 Commencement
– provides that the Act will commence on the date decided by the
Minister and notified on the Legislation Register. If the
Minister has not
fixed a date within twelve months beginning on the day of notification of the
Act, the Act will commence on the first day after this period.
Providing
for the Minister to determine commencement allows sufficient flexibility in the
timing of the commencement of the Act. The Act contains amendments to
legislation that will support the Supreme Court to implement a new docket case
management system and make other changes to operating procedures with a view to
reducing the time taken to finalise matters lodged in or committed to the Court.
The operation of section 79 of the Legislation Act 2001 (6 month
default commencement) has been removed in relation to the Act to ensure that the
amendments do not commence until the changes proposed by the Supreme Court have
been made. 12 months is considered an appropriate period of time to enable
practice directions to be developed and to allow the sub-committee of the
rules-making committee to develop rules to implement the changes.
Clause 3 Legislation amended – provides that the Act amends
the legislation mentioned in schedule 1.
Schedule 1 Legislation amended
Part 1.1 Crimes (Sentencing) Act 2005
Clause 1.1 New section 33(1)(ka) – inserts new paragraph
(ka) into section 33(1) of the Crimes (Sentencing) Act 2005.
Section 33(1) of the Act provides a list of matters that the court must
consider in deciding how an offender should be sentenced, if at all, for an
offence.
This clause inserts a new matter into this list; new paragraph
(ka). The new paragraph requires the court to consider any assistance by the
defence in the administration of justice.
The amendment is a consequence
of the amendment made in clause 1.3 below which enables the court to impose a
lesser penalty on an offender having regard to the degree of assistance provided
in the administration of justice.
Clause 1.2 Section 35(7),
definition of defence – replaces the definition of
defence in section 35(7) of the Crimes (Sentencing) Act
2005.
Defence is defined to mean either the offender,
or any lawyer representing the offender.
This definition is replaced
for consistency with the definition of defence in new section 35A.
Clause 1.3 New section 35A – inserts new section 35A into
the Crimes (Sentencing) Act 2005.
New section 35A enables a
court to impose a lesser penalty, including a shorter non-parole period, on an
offender than it would otherwise have imposed having regard to the degree of
assistance provided in the administration of justice. The provision is designed
to encourage cooperation in ensuring that the trial is focused as efficiently as
possible on the real issues in dispute. The provision will extend to allowing a
reduced sentence to be imposed where an offender, while maintaining a not guilty
plea through to trial has nevertheless facilitated the administration of justice
through pre-trial disclosures, disclosures made during trial or otherwise.
An example is provided in the new section of the type of matter that may
be considered by the court as assisting in the administration of justice; an
admission made by the defence pre-trial or during a trial.
A similar
provision exists in New South Wales in section 22A of the Crimes (Sentencing
Procedure) Act 1999. The case law that exists on this provision in New
South Wales will serve as a guide to the ACT judiciary in applying new section
35A.
New section 35A ensures that a lesser penalty imposed must not
be unreasonably disproportionate to the nature and circumstances of the offence.
The new section also clarifies that the power is not intended to limit the
operation of existing sections 35 and 36 which allow for reduced sentences in
certain circumstances. While a plea of guilty or assistance provided to law
enforcement agencies can be considered to meet the requirements of facilitating
the administration of justice, new section 35A(4) is designed to provide that
other actions are required to trigger the reduction under the new section.
Clause 1.4 Section 37(1) – inserts the words ‘,
section 35A (Reduction of sentence – assistance in administration of
justice)’ after the words ‘section 35 (Reduction of sentence –
guilty plea) in section 37(1) of the Crimes (Sentencing) Act
2005.
Section 37 of the Act sets out the requirements for the court
to give a statement where it imposes a lesser penalty for an offence under
specified provisions of the Act. The court must state the penalty it would have
imposed, and, in relation to sentence reductions for providing assistance to law
enforcement authorities, the reason for the imposition of the lesser penalty.
The clause amends section 37 to ensure that the requirement for the
court to give a statement where it imposes a lesser penalty for an offence
applies in relation to new section 35A.
This clause, in combination
with clause 1.5 below, ensures the visibility of reductions for two
reasons:
• to ensure that the community is able to satisfy themselves
that sentences continue to reflect the seriousness of offences; and
• to ensure that defence counsel can advise their clients of the
benefits of pre-trial and trial co-operation which ultimately may facilitate
greater efficiency in cases before the courts.
Clause 1.5 Section
37(2)(b) – inserts ‘section 35A or’ before ‘section
36’ in section 37(2)(b) of the Crimes (Sentencing) Act
2005.
The clause amends section 37 to ensure that where the court
states the penalty it would have imposed under new section 35A, it must also
give the reason for the imposition of the lesser penalty.
Clause 1.6
Section 41(1) and note – substitutes new subsection (1) into section
41 of the Crimes (Sentencing) Act 2005.
Currently, section 41(1)
of the Act provides that a court may order the director-general to prepare a
pre-sentence report for an offender before sentencing, and provides that the
court may adjourn the proceeding for the report to be prepared.
The
clause remakes subsection (1) and inserts new subsections (1A) and (1B) to
clarify the operation of the provision. Revised subsection (1) and new
subsection (1A) clarifies that the Magistrates Court can order a pre-sentence
report at the time it commits an offender to be sentenced in the Supreme Court.
The new subsections also maintain the current situation
that:
• the Magistrates Court can order a pre-sentence report for
sentencing in the Magistrates Court; and
• the Supreme Court can order
a pre-sentence report for sentencing in the Supreme Court.
The
amendment will assist in facilitating the early ordering of pre-sentence
reports, supporting the Court’s proposed pre-sentence disclosure
requirements.
Clause 1.7 Section 45 – removes section 45
from the Crimes (Sentencing) Act 2005.
Section 45 of the Act
obliges the court to make a copy of a pre-sentence report available to parties
two days before the sentencing hearing where it has been made available to the
court by this timeframe.
The clause removes section 45 from the Act to
facilitate the court introducing pre-sentence disclosure requirements. These
will require the prosecution and the defence to disclose any disputed facts,
witnesses they seek to call, and any other submissions that will be made at the
sentencing hearing, to each other and to the court in advance of the sentencing
date.
A pre-sentence report is one of the documents that would be
required to be lodged with the court and made available to parties to ensure
that they are in a position to meet the above proposed pre-sentence disclosure
requirements.
The section is being removed as it is a procedural matter
which would more appropriately be dealt with in the Court Procedures Rules.
This will provide the Court with the flexibility of developing procedures for
distribution that is consistent with the proposed new docket
system.
Clause 1.8 Dictionary, definition of pre-sentence
report – amends the definition of pre-sentence
report in the dictionary of the Act to reflect the amendments made by
clause 1.6 above. The new definition accords with current drafting practice in
the ACT.
Part 1.2 Supreme Court Act 1933
Clause 1.9 Section 68B(1)(c)(i) and (ii) – inserts new
section 68B(1)(c)(i) and (ii) into the Supreme Court Act 1933.
Section 68A of the Act provides that the usual method of trial on
criminal charges in the Supreme Court is by judge and jury. However, this is
subject to section 68B which provides that an accused person can elect, in
writing, to be tried by judge alone.
Section 68B(1)(a) and (b) provides
that an election must be made by a person in writing and be accompanied by a
certificate signed by a legal practitioner stating that the legal practitioner
has advised the person in relation to the election, and the person had made the
election freely.
Section 68B(1)(c) provides that the election and
certificate must be filed in the Court before two matters occur. The two
matters are the allocation of a date for the person’s trial, and knowledge
of the trial judge’s identity by the person, or the person’s legal
representative.
This clause maintains the existing requirement for an
election to be made prior to the identity of the trial judge being known to the
accused or to his or her legal representatives. The clause removes the existing
requirement for the election to be made before the court allocates a date for
the person’s trial as the timing for this will be affected by the
Court’s proposed new docket system. The clause adds a new requirement to
provide that the election for a judge alone trial must also be made before any
time limit prescribed under the Court Procedures Rules to ensure consistency
with the new processes that will exist under the proposed docket system.