Criminal Procedure Amendment (Pre-Trial Disclosure) Bill



About this Item
SpeakersPezzutti The Hon Dr Brian; Chesterfield-Evans The Hon Dr Arthur; Egan The Hon Michael; Breen The Hon Peter; Jones The Hon Richard; Obeid The Hon Eddie; Nile Reverend The Hon Fred; Samios The Hon James
BusinessBill, Division, Second Reading, Third Reading, In Committee


    CRIMINAL PROCEDURE AMENDMENT (PRE-TRIAL DISCLOSURE) BILL
Page: 11754

Second Reading

[Debate resumed.]

The Hon. Dr B. P. V. PEZZUTTI: I extend my greetings to the representatives of the Parliament of Papua New Guinea. Since the debate has been interrupted, I also extend greetings to members of the Second 30th Battalion who were captured and served time in Changi prison camp. My mother's oldest brother, James Bazzo, died in Changi. I must say that mention of their visit brought a flood of memories of my mother's regard for her brother, Jimmy. To get back to the bill, I believe it will require close attention by the Attorney General and by the Minister for Police to ensure that the new processes put in place with a view to efficiency do not act to the detriment of those who are charged with a criminal offence and taken before the court.

Any failure in that regard will weigh heavily on this Government—for example, if the new rules result in people who have been gaoled being released on a technicality on appeal, or if innocent people are found guilty because of a technicality. The Government must have in place a system to compensate those found guilty because of a technicality in the process. There should be a mechanism in place and a clear undertaking by the Government that persons who are convicted but are later found to be innocent of the charge will be compensated—and compensated more readily than they are now are. The Hon. J. M. Samios and the honourable member for Gosford have gone through this bill in some detail. I do not wish to take up the time of the House, but they are just a couple of concerns that I have.

The Hon. Dr A. CHESTERFIELD-EVANS [2.52 p.m.]: There has been considerable debate about this bill. Opposed to the bill are the Law Society, the New South Wales Bar Association and the Young Lawyers. On the other side are the Government and the forces of law and order, as expressed in talk-back radio. Central to the argument is the time-honoured tradition in our judicial system of the right of an accused to silence. This debate has been the subject of a Law Reform Commission report, and also a High Court appeal in the case of Azzopardi which commenced on 20 November. The Government says that the bill has been introduced to make the administration of justice more efficient in New South Wales.

The Government says that present pre-trial disclosure is ad hoc in procedure and practice; that it is a mixture of common law rules, legislation, guidelines issued by the Director of Public Prosecutions, and rules issued by the Bar Association, the Law Society and the Supreme Court. The Government, by introducing compulsory pre-trial disclosure, seeks to get rid of the so-called ambush defence. An ambush defence is where surprise, last-minute evidence is introduced in a trial of which the prosecution has had no prior notice and with which it is unable to deal quickly, whereupon the person believed to be guilty is acquitted. The argument against this is the right to silence, which is a group of rights afforded to an accused or a suspect. They include the right not to answer questions asked by police, the right not to incriminate oneself and the right not to give evidence at one's own trial. The argument is that the defence should not have to assist the prosecution to obtain a conviction. This is the generally held view of the law agencies.

The New South Wales Law Reform Commission says that the ambush defence arises infrequently and does not contribute to acquittal in most cases. The Law Society maintains that lengthy and complex trials can be effectively administered by judicial case management without interference to the accused's right to a fair trial. The groups that are opposed to the bill are really all the established groups in the field. They include the Law Society and the New South Wales Bar Association. The Sydney Regional Aboriginal Corporation Legal Service states that there would be a great increase in costs in complying with these pre-trial disclosures which will severely stretch that group's resources and make justice more difficult to achieve. I will not read that group's letter to me, but the point needs to be made very clearly that if more work is created, particularly for the defence, more resources must be channelled into legal aid.

It is not much good cutting costs of the courts if it simply adds to the costs of the prosecution and the defence—although the Government might argue that it only has to pay the prosecution's costs, and that the defence costs are met by the accused. The fact of the matter is that many accused people have few resources and if we are to have a just trial process and there is going to be more work as a result of this bill, more money must be channelled into legal aid. New South Wales Young Lawyers have made a submission on this subject, and that group is certainly very much opposed to the bill. I will not read the submission, but I would be happy to provide details to any member who would like me to do so. I have also received a copy of the letter from Marsdens that was sent to the Attorney General and incorporated by the Hon. Dr B. P. V. Pezzutti during his contribution to the debate. That letter is significant in that it contains the signatures of all 17 partners and associates of that firm.

The bill as it stands is quite unsatisfactory. I congratulate the Hon. P. J. Breen on his proposed amendments, which will effectively put regulations into the bill. That means that the legislation will be more difficult to change against the interests of defendants. He has also made some minor changes which I understand will limit the extent of disclosure to the general area in which the defence will be running its case, rather than force defendants to provide a large amount of detail, with the attendant increase in costs for both the prosecution and the defence. Although it might lessen the court time, it might increase the cost of the legal system overall and damage the cause of justice because of the resource implications. I believe that the amendments foreshadowed by the Hon. P. J. Breen should be supported, and I will support them. If they are not successful, I will not support the bill.

The Hon. M. R. EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [2.57 p.m.], in reply: I thank honourable members for their contributions to the debate. The Government is concerned at the move foreshadowed by the Leader of the Opposition that the Opposition will, in Committee, support the foreshadowed amendments of the Hon. P. J. Breen—which will bring regulations into the bill. The proposed regulations that are incorporated in the foreshadowed amendments are significantly different to the draft regulations as circulated by the Government. The regulations accompanying this bill have been available to any interested person since the bill was introduced into the Legislative Assembly in August.

The draft regulations have been circulated to the Director of Public Prosecutions, the Law Society, the heads of jurisdictions, the Bar Association, the Legal Aid Commission, the Law Reform Commission, members of the crossbench and members of the Opposition, to name a few. While it is the prerogative of any member to suggest changes—or, as the Hon. P. J. Breen will do, to move amendments and to have a different form of regulations brought into the bill—I am concerned that the Opposition does not realise how the changes will undermine the principles of pre-trial disclosure. The enumerated defences of which a defendant is required to give prior notice would be deleted. Nevertheless, I will canvass the impact of the amendment further in Committee.

Pre-trial disclosure has not been approached lightly by the Government. In the debate a number of honourable members expressed concern that the proposal may disadvantage the defence in a criminal trial. The Government is not of this view. The proposal is a case management based approach to ensuring further efficiencies at trial. In essence, it moves the work out of the court up front so that parties must prepare before they get to court. It is a sensible and intelligent approach to court resources and will greatly assist juries in terms of consolidating the facts for digestion, reduce the impact of court trauma on victims and require parties to be better prepared in their legal arguments. The bill is the result of painstaking consultation that included significant Government amendments in the Legislative Assembly to take into account the submissions received. It does not erode the right to silence, nor does it require a defence to prove innocence, and it does not in any way interfere with the requirement that guilt be proved beyond a reasonable doubt in criminal matters.

I refer to comments made by the Hon. Dr B. P. V. Pezzutti, who sought an assurance that police will not be able to harass witnesses whose names have been supplied by the accused. As the honourable member pointed out, that would be a very serious offence. The proposal that witnesses provide names and addresses comes from the Law Reform Commission so that the police can check antecedents. It will apply only to character witnesses. A witness cannot be interviewed by police without the leave of the court—that proviso is in the draft regulations. The proposal streamlines the trial process and assists the court. The defence is on notice that antecedents of character witnesses will be checked. I commend the bill to the House.

Motion agreed to.

Bill read a second time.
In Committee

Clauses 1 to 6 agreed to.

Schedule 1

The Hon. P. J. BREEN [3.03 p.m.]: I move Reform the Legal System amendment No. 1:
        No. 1 Page 4, schedule 1 [2] (proposed section 47C (4)), lines 9-11. Omit all words on those lines. Insert instead:
          (4) The court may order pre-trial disclosure only if the court is satisfied that:
              (a) the accused person will be represented by a legal practitioner for the purposes of the trial, and

              (b) if the accused person requires legal aid - a grant of legal aid has been made that will enable the accused person to retain counsel (as well as an instructing solicitor) for the purposes of the trial, including during the period of pre-trial disclosure.

    The purpose of this amendment is to enable an accused person to retain counsel as well as instruct a solicitor. As I mentioned earlier, criminal cases are often prepared on the run and prior to the pre-trial disclosure regime a competent defence attorney would simply deal with issues as they arise in the course of the prosecution of the case in court. For example, prosecution witnesses may give evidence that is quite different from their statements, and appropriate adjustments could be made to the defence at the trial. Presumably pre-trial disclosure will reduce the number of surprises at the trial in both the prosecution and defence cases. This is the hoped-for efficiency that pre-trial disclosure will achieve.

    However, confusion will reign if the accused has a different barrister at the trial from the one who advised on pre-trial disclosure. If the accused has no barrister in the period of pre-trial disclosure, the situation will be even worse because legal aid solicitors deal with many cases. Pre-trial disclosure will place impossible burdens on legal aid solicitors if they do not have the benefit of counsel's assistance. It is worth noting what the Law Reform Commission said about cases involving an accused person who requires legal aid. In paragraph 3.121 of its document the Law Reform Commission stated:
        In all cases, trial defence counsel would have to be properly briefed at an early stage to allow adequate opportunity to review the brief and confer with a defendant. Both the Crown and defence counsel require an opportunity to consider the possibility of accepting a plea to lesser charges. Legal Aid New South Wales currently pays for only two pre-trial conferences for Supreme and District Court trials. The rates are $91.00 per conference for solicitors, $101.00 for junior counsel and $146.00 for senior counsel.
    Given the pre-trial disclosure regime as proposed in the bill, the Law Reform Commission rightly points out that the existing situation is inadequate. For the reasons I mentioned in my contribution to the second reading debate, if an accused has different counsel at the trial to the one involved in pre-trial disclosure, the accused would be put in a position at odds with the pre-trial disclosure requirements and, therefore, certain comments are likely to be made to the jury about that situation, and that would be detrimental to the accused's case. Therefore, I commend the amendment to the Committee.

    The Hon. R. S. L. JONES [3.06 p.m.]: I support the amendment. The success of the pre-trial system demands that experienced counsel are dedicated to the cases early in the process to enable the accused to have the benefit of advice on the pre-trial requirements. There has been some acknowledgment that unrepresented accused persons cannot survive in a system like this—as evidenced by the Government's move to amend the legislation in the lower House so that it cannot apply to unrepresented defendants. However, it is essential that an accused person also has the benefit of counsel, rather than relying on a solicitor alone, whose skills lie in a different field other than the provision of expert advice on legal technicalities.

    The Hon. E. M. OBEID (Minister for Mineral Resources, and Minister for Fisheries) [3.07 p.m.]: The Government does not support this amendment, which is unnecessary because the Government has already amended the bill in another place to ensure that unrepresented parties are not affected by the proposed pre-trial disclosure regime. The Government agrees with the Bar Association that the pre-trial disclosure regime will require more up-front work in preparing a matter for trial. In essence, counsel will need to be briefed early, and the court will take this into consideration when determining that a matter is suitable for pre-trial disclosure to come into effect. The amendment is overly prescriptive and will not enhance the case management principles of the proposed pre-trial disclosure regime. The Government will undertake a thorough review of the legislation after 18 months of operation, including the impact of the legislation on the profession. The element of discretion the Government has reserved for the courts in pre-trial disclosure, guided by the need for representation prior to the regime coming into effect, is enough to prevent unfair criminal trials.

    Amendment negatived.

    The Hon. P. J. BREEN [3.09 p.m.]: I move Reform the Legal System amendment No. 2:
        No. 2 Page 4, schedule 1 [2] (proposed section 47D), lines 14-34. Omit all words on those lines. Insert instead:
          47D Pre-trial disclosure requirements—general
              (1) Pre-trial disclosure is to be made as follows:
                  (a) the prosecuting authority is to give the accused person notice of the case for the prosecution,

                  (b) after the accused person has been given notice of the case for the prosecution, the accused person is to give the prosecuting authority notice of the defence response to the case for the prosecution (referred to in this Division as the defence response),

                  (c) after the prosecuting authority has been given notice of the defence response, the prosecuting authority is to give the accused person notice of the prosecution response to the defence response.

              (2) Pre-trial disclosure is to be made in accordance with a timetable determined by the court.

              (3) For the purposes of the pre-trial disclosure requirements, a reference to the accused person is to be read as including a reference to the legal practitioner of the accused person.

          47E Disclosure of case for the prosecution
              The notice of the case for the prosecution is to contain the following:

              (a) a copy of the indictment,

              (b) an outline of the prosecution case,

              (c) copies of statements of witnesses proposed to be called at the trial by the prosecuting authority,

              (d) copies of any documents or other exhibits proposed to be tendered at the trial by the prosecuting authority,

              (e) if any expert witnesses are proposed to be called at the trial by the prosecuting authority, copies of any reports by them that are relevant to the case,

              (f) a copy of any information in the possession of the prosecuting authority that is relevant to the reliability or credibility of a prosecution witness,

              (g) a copy of any information, document or other thing provided by police officers to the prosecuting authority, or otherwise in the possession of the prosecuting authority, that may be relevant to the case of the prosecuting authority or the accused person, and that has not otherwise been disclosed to the accused person,

              (h) a copy of any information, document or other thing in the possession of the prosecuting authority that is adverse to the credit or credibility of the accused person.

          47F Defence response
              (1) The notice of the defence response is to contain the following:
                  (a) if any expert witnesses are proposed to be called at the trial by the accused person, copies of any reports by them proposed to be relied on by the accused person,

                  (b) the names and addresses of any character witnesses that are proposed to be called at the trial by the accused person (but only if the prosecution has given an undertaking not to interview any such witness before the trial without the leave of the court),

                  (c) the accused person's response to the particulars raised in the notice of the case for the prosecution (as provided for by subsection (2)).

              (2) The accused person's response to the particulars raised in the notice of the case for the prosecution is to contain the following:
                  (a) if the prosecuting authority disclosed an intention to adduce expert evidence at the trial, notice as to whether the accused person disputes any of the expert evidence and which evidence is disputed,

                  (b) if the prosecuting authority disclosed an intention to adduce evidence at the trial that has been obtained by means of surveillance, notice as to whether the accused person proposes to require the prosecuting authority to call any witnesses to corroborate that evidence and, if so, which witnesses will be required,

                  (c) notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecuting authority,

                  (d) if the prosecuting authority disclosed an intention to tender at the trial any transcript, notice as to whether the accused person accepts the transcript as accurate and, if not, in what respect the transcript is disputed,

                  (e) notice as to whether the accused person proposes to dispute the accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecuting authority,

                  (f) notice of any significant issue the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges.

          47G Prosecution response to defence response
              The notice of the prosecution response to the defence response is to contain the following:

              (a) if the accused person has disclosed an intention to adduce expert evidence at the trial, notice as to whether the prosecuting authority disputes any of the expert evidence and, if so, in what respect,

              (b) if the accused person has disclosed an intention to tender any exhibit at the trial, notice as to whether the prosecuting authority proposes to raise any issue with respect to the continuity of custody of the exhibit,

              (c) if the accused person has disclosed an intention to tender any documentary evidence or other exhibit at the trial, notice as to whether the prosecuting authority proposes to dispute the accuracy or admissibility of the documentary evidence or other exhibit,

              (d) notice as to whether the prosecuting authority proposes to dispute the admissibility of any other proposed evidence disclosed by the accused person, and the basis for the objection,

              (e) a copy of any information, document or other thing in the possession of the prosecuting authority, not already disclosed to the accused person, that might reasonably be expected to assist the case for the defence,

              (f) a copy of any information, document or other thing that has not already been disclosed to the accused person and that is required to be contained in the notice of the case for the prosecution.

          47H Disclosure requirements are ongoing
              (1) The obligation to undertake pre-trial disclosure continues until any of the following happens:
                  (a) the accused person is convicted or acquitted of the charges in the indictment,

                  (b) the prosecution is terminated.

              (2) Accordingly, if any information, document or other thing is obtained or anything else occurs after pre-trial disclosure is made by a party to the proceedings, that would have affected that pre-trial disclosure had the information, document or thing been obtained or the thing occurred before pre-trial disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable.

          47I Court may waive requirements
              (1) A court may, by order, waive any of the pre-trial disclosure requirements that apply under this Division.

              (2) The court may make such an order on its own initiative or on the application of the prosecuting authority or the accused person.

              (3) An order may be made subject to such conditions (if any) as the court thinks fit.

          47J Requirements as to notices
              (1) A notice under this Division is to be in writing.

              (2) Any notice purporting to be given under this Division on behalf of the accused person by his or her legal practitioner is, unless the contrary is proved, taken to have been given with the authority of the accused person.

              (3) A notice under this Division that is required to be given to a prosecuting authority may be given to the prosecuting authority in the following manner, or as otherwise directed by the court:
                  (a) by delivering it to the prosecuting authority,

                  (b) by leaving it at the office of the prosecuting authority,

                  (c) by sending it in a letter addressed to the prosecuting authority at the office of the prosecuting authority.

              (4) A notice under this Division that is required to be given to an accused person may be given to the accused person in the following manner, or as otherwise directed by the court:
                  (a) by delivering it to the accused person,

                  (b) by leaving it at the office of the legal practitioner of the accused person,

                  (c) by sending it in a letter addressed to the legal practitioner of the accused person at the office of the legal practitioner.

          47K Copies of exhibits and other things not to be provided if impracticable
              (1) A copy of a proposed exhibit, document or thing is not required to be included in a notice under this Division if it is impossible or impractical to provide a copy.

              (2) However, the party required to give the notice:
                  (a) is to specify in the notice a reasonable time and place at which the proposed exhibit, document or thing may be inspected, and

                  (b) is to allow the other party to the proceedings a reasonable opportunity to inspect the proposed exhibit, document or thing referred to in the notice.
          47L Personal details not to be provided
              (1) The prosecuting authority is not to disclose in any notice under this Division the address or telephone number of any witness proposed to be called by the prosecuting authority, or of any other living person, unless:
                  (a) the address or telephone number is a materially relevant part of the evidence, or

                  (b) the court makes an order permitting the disclosure.

              (2) An application for such an order may be made by the accused person or the prosecuting authority.

              (3) The court must not make such an order unless satisfied that the disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice (including the accused person's right to prepare properly for the hearing of the evidence for the prosecution) outweigh any such risk.

              (4) This section does not prevent the disclosure of an address if the disclosure does not identify it as a particular person's address, or it could not reasonably be inferred from the matters disclosed that it is a particular person's address.

              (5) An address or telephone number that must not be disclosed may, without reference to the person who made the statement being disclosed, be deleted from that statement, or rendered illegible, before the statement is given to the accused person.

          47M Requirements as to statements of witnesses
              (1) A statement of a witness that is included in a notice under this Division may be in the form of questions and answers.

              (2) If a notice includes a statement that is, wholly or in part, in a language other than English, there must be annexed to it a document purporting to contain a translation of the statement, or so much of it as is not in the English language, into the English language.

          47N Exemption for matters disclosed in brief of evidence
              The prosecuting authority is not required to include in a notice under this Division anything that has already been included in a brief of evidence served on the accused person in accordance with section 25.
    This amendment seeks to incorporate into the bill the draft regulations distributed by the Attorney. In that regard I note that the Minister, in reply to contributions to the second reading speech, said that the regulation is available to anyone who wanted it. My response is that the regulations were available to anyone who was lucky enough to come across it, because they were not distributed but extracted, as a dentist might extract teeth, from the Attorney's office.

    The Hon. Dr B. P. V. Pezzutti: Is there a reason for that?

    The Hon. P. J. BREEN: There is a reason. These regulations incorporate, for the first time to my knowledge, matters of fundamental human rights that go to the very heart of the criminal justice system. The responsibilities on an accused person under these regulations ought to be included in the bill. To put them in regulations and have them subject to Executive Government rather than to the ambit of the Parliament, is a complete abrogation of the responsibility that parliamentarians have to the people of New South Wales. The possibility of regulations is not precluded by incorporating these regulations; other places in the bill clearly refer to regulations. My amendment suggests that the regulations that affect the fundamental rights of an accused person ought to be in the bill, not in regulations.

    The present draft regulations raise issues of fundamental principle that need to form part of the bill. Honourable members would be aware that I have circulated amendments to the draft regulations as I would like to see them incorporated in the bill. There may be some concern about my changes to the draft regulations, but all I have done in substance is delete reference to a number of points in relation to a defence. The draft regulations as circulated provide that the accused be required to say whether he or she is going to plead insanity, self-defence, provocation, accident, duress, claim of right, automatism or intoxication. My amendments to the regulations delete each of those heads. The reason for that is contained in the Law Reform Commission report.

    Using the example that a person accused of murder intends to raise provocation, it is a moot point to simply say "I plead provocation" or, "I plead accident," because the onus is on the prosecution to prove that the defendant had a criminal intent. To simply plead provocation or accident does not assist in the pre-trial regime. My amendments suggest that each of those eight items need to be deleted. I recognise that that is not consistent with the recommendations of the Law Reform Commission report but it is consistent with other principles in the report. Therefore, I suggest that the amended regulations should be incorporated into the bill. I foreshadow an alternative if that proposal is not acceptable.

    The defence response that I have referred to is also modified to the extent that various specific defences, which I have listed, might be deleted. Another slight amendment is that new clause 47F modifies the draft regulation by deleting responsibility on the accused person to dispute the admissibility of prosecution evidence during pre-trial disclosure. That provision is unreasonable to the extent that it assumes the defence will have all the information needed to make a decision about the admissibility of evidence.

    It is extremely important that principles fundamental to the criminal justice system are contained in an Act. An accused person on trial for a particular offence would want to see in the legislation the responsibilities needed to meet the charge. If we delegate that kind of responsibility to the Executive Government by way of regulation, we are abrogating our duty to protect the rights of citizens of New South Wales. The principles contained in the regulation compromise, one after another, the rights of an accused person. On that basis I urge honourable members to support the amendment as it stands.

    The Hon. E. M. OBEID (Minister for Mineral Resources, and Minister for Fisheries) [3.14 p.m.]: The amendment is fundamentally flawed. The Government is disappointed that at the last minute the Opposition has decided to support amendment No. 2 moved by the Hon. P. J. Breen, which will incorporate into the bill regulations that significantly water down the Government's proposed regulations. The Opposition is listening to the misguided parties that argue that regulations should be incorporated into the bill. From day one the Government has circulated draft regulations with the bill. There has never been a secret about what is to be in the regulation. There is significantly greater flexibility, as supported by the Chief Judge of the District Court and the Law Reform Commission, if we utilise the regulations to guide the jurisdiction and the practitioners.

    The amendment is not what it appears. It seeks to incorporate regulations into the bill; however, they are watered-down versions of the regulations circulated by the Government. In essence, this means that no longer will the defence have to take responsibility for providing information to the prosecution on significant matters. Under the Government's proposal the defence would have to provide to the prosecution a notice of defence if it chooses to rely upon insanity, self-defence, provocation, accident, duress, claim of right, automatism, or intoxication. Under the amendment there is no longer that responsibility: the defence can introduce any of those defences with no notice to the prosecution. The consequences are: increased trial length and a risk of further court delays; victims suffering as a result of being put through longer trials and surprise tactics on the part of the defence; and the prospect of increased ambush defences.

    All that is against the very principles of the legislation that the Opposition supported in the Legislative Assembly. If the Opposition supports the amendment, it will be further proof that it does not know what it is doing. The proposal goes even further to undermine the Government's approach to pre-trial disclosure by omitting the requirements that notice be given as to whether the accused person proposes to dispute the admissibility of any other proposed evidence disclosed by the prosecuting authority and the basis for the objection. This, once again, undermines the requirements of the Government's proposal that trials be case managed to ensure defence disclosure is on par with prosecution disclosure. The amendment should not be supported.

    The Hon. R. S. L. JONES [3.17 p.m.]: One of my major concerns is that so much of the substance of the sweeping changes to the criminal law is being left to regulations. I agree with the submission of the New South Wales Bar Association on this matter, which stated:
        Pre-trial disclosure of the kind contemplated here fundamentally changes the structure of the criminal law in NSW. It places substantial and never before seen burdens on the accused person and their legal representative. If there is to be a regulation of this type pre-trial disclosure must be the subject of legislation not regulation. The NSW Bar Association strongly opposes any system of pre-trial disclosure that is not incorporated into legislation as determined by Parliament.
    In a letter to my office dated 13 November Justice Vincent of the Victorian Supreme Court also expressed concern about so much reform to the criminal justice system being left to regulations. His Honour said:
        The scheme in Victoria is different to that which is proposed in NSW, as Victoria has a clearer statutory scheme
    His Honour indicated that he would not be comfortable with such matters being left to regulations. I am glad that the Opposition has agreed to support the amendment, which is very wise indeed.

    Reverend the Hon. F. J. NILE [3.19 p.m.]: My concern is twofold. First, should the regulations be part of the legislation? We have never before placed regulations in legislation; that is a new approach, although people may argue that the regulations cover important material. Second, the regulations as included in the legislation have been changed and this has undermined the purpose of the bill. As the Minister for Mineral Resources said, all honourable members should understand that the amendment is incorporating not the Government's regulation but changed regulations, according to the views of the Hon. P. J. Breen, the Law Society, and others, and, as I said, this virtually undermines the purpose of the legislation.

    The Hon. P. J. BREEN [3.19 p.m.]: Reverend the Hon. F. J. Nile makes a valid point if it were the fact that my amendment made substantial changes to the regulations. But they are not substantial changes. The items identified by the Minister were exactly the same items identified by the Treasurer in his speech in reply to the second reading debate. Both Ministers read out the following provisions in the defence response: insanity, self-defence, provocation, accident, duress, claim of right, automatism and intoxication. The reason for deleting the provisions from the regulation is that on their own the so-called defences do not throw any light on the case. The first category recommendation of the Law Reform Commission was that the defences should be listed. The Law Reform Commission then stated:
        The second category is the recommendation that, in particular cases, the defence may be required to state in general terms the case intended to be presented as to why he or she is not guilty, identify those aspects of the Crown case which are in issue and indicate in general terms the factual nature of the case to be made in respect of each of those aspects. The defendant should not be obliged to disclose the specific non-expert evidence …

        This requirement is aimed at the same objects as the first category but will be applied only in those cases where the first category of disclosure is inapplicable or insufficient …
    In other words, it is not sufficient to simply disclose a defence. As I said earlier, unless there is a power in the court and in the legislation to also require general explanation about the defence, the circumstances of the defence and the people involved in the evidence that is to be given, for a person simply to plead accident, self-defence, automatism or intoxication is quite useless in terms of pre-trial disclosure.

    The Government's regulations have taken two aspects of the Law Reform Commission's report. They have implemented the first aspect but completely ignored the second aspect. That is why the provisions are deleted from the regulation. My changes to the regulations are minor amendments. In fact, most of them were made by Parliamentary Counsel, not me. The argument that the regulation has been altered in such a way as to make it either unrecognisable or something other than what the Government intended is quite wrong.

    Reverend the Hon. F. J. Nile also referred to the history of regulation as opposed to making laws by regulation. This legislation deals with fundamental principles of justice. It involves principles that go back hundreds of years. If we are to make changes to the law in relation to those principles, it is necessary that those changes be made in legislation and not by executive power. That is the purpose of incorporating the regulation in the bill. As I have said, the bill already contains provision for the Attorney to make regulations. The Minister can make regulations to his heart's content, but, apparently, not about principles involving fundamental questions of due process rights.

    The Hon. Dr A. CHESTERFIELD-EVANS [3.23 p.m.]: I wish to comment on the matters raised by Reverend the Hon. F. J. Nile. The honourable member said that the incorporation of a regulation sets a precedent. I do not think we should be timid about that. We should have control of what is happening. The inclusion of a regulation in legislation would seem to suggest that this is not a delegated power.

    Reverend the Hon. F. J. Nile: You do have control; you can disallow the regulation.

    The Hon. Dr A. CHESTERFIELD-EVANS: To answer the interjection, yes, one can disallow a regulation, but that tends not to happen and regulations tend to be subject to far less scrutiny of detail than legislation is. While I realise regulations can be disallowed, that tends not to happen if a small nuance of evidence is picked up by the Regulation Review Committee, published in the Government Gazette and debated in this House. Accordingly, disallowance tends to happen at the Minister's discretion. I do not agree with the suggestion that it is somehow bad to amend regulations, as though they are sacred when really they may deal merely with trivial matters or arrogating pieces of legislation. I would argue that provisions that should be included in legislation may be included in regulations.

    Increasingly, legislation contains such phrases as "the Minister shall" or "the Minister may". Effectively, this means that the House passes its power to the Minister and to regulations, although I wonder to what end. I do not think we should be timid about incorporating regulations in bills if they deal with matters as important as this matter. If a regulation were incorporated in a bill and the Parliament wished to change it, it would be changed without too much concern for anyone. Every day in this Parliament we delete and add sections to bills. If this provision is thought to be so trivial as to be included in a regulation, surely one should not blanch at this House changing the regulation in the way suggested by the Hon. P. J. Breen, particularly as it seems that everyone who is substantially involved in the criminal law supports his proposal.

    Question—That the amendment be agreed to—put.

    The Committee divided.
    Ayes, 22
            Mr Breen
            Dr Chesterfield-Evans
            Mr Cohen
            Mr Corbett
            Mr Gallacher
            Miss Gardiner
            Mr Gay
            Mr Harwin
            Mr M. I. Jones
            Mr R. S. L. Jones
            Mr Lynn
            Mr Oldfield
            Mr Pearce
            Dr Pezzutti
            Ms Rhiannon
            Mr Ryan
            Mr Samios
            Mrs Sham-Ho
            Mr Tingle
            Dr Wong

            Tellers,
            Mr Colless
            Mr Jobling

    Noes, 15
            Dr Burgmann
            Ms Burnswoods
            Mr Della Bosca
            Mr Dyer
            Mr Egan
            Ms Fazio
            Mr Johnson
            Mr Macdonald
            Mrs Nile
            Revd Nile
            Mr Obeid
            Ms Saffin
            Mr Tsang


            Tellers,
            Mr Primrose
            Mr West

    Pairs

    Mrs ForsytheMr Hatzistergos
    Mr MoppettMs Tebbutt

    Question resolved in the affirmative.

    Amendment agreed to.

    The Hon. P. J. BREEN [3.32 p.m.], by leave: I move Reform the Legal System amendments Nos 3 and 4 in globo:
        No. 3 Page 5, schedule 1 [2] (proposed section 47E (4)), lines 20-26. Omit all words on those lines. Insert instead:
            (4) No comment to jury
              Comments or submissions with respect to a failure by the accused person to comply with pre-trial disclosure requirements may not be made in the presence of the jury, whether by the judge or the prosecuting authority.

        No. 4 Page 5, schedule 1 [2] (proposed section 47E (5)), lines 30 and 31. Omit "or to comment on any non-compliance by the accused person".

    These amendments address a significant problem with comments to the jury in relation to failure by a party to comply with pre-trial disclosure. As it stands, the judge or a party with leave of the court may comment to the jury, provided the comment does not imply that the accused failed to comply with pre-trial disclosure because he or she is guilty of the offence. These may seem like innocuous provisions but, as the Law Society points out, the application of similar provisions, both under common law and the Evidence Act, has been problematic. Many appeals have centred on whether or not comments made to juries have been appropriate or lawful. If any comment is made about failure to comply with pre-trial disclosure and the jury can infer the guilt of the accused person from that comment, the accused will walk free on appeal. That is exactly the opposite of the intention of the legislation.

    Given the importance of the law and order agenda, I had hoped that this issue would be supported by the major parties. While criminal lawyers and civil libertarians argue that it is better for 20 guilty people to go free than for one innocent person to be found guilty, this conviction is not part of the law and order agenda. In these circumstances, these amendments should be agreed to as they provide one less opportunity for guilty persons to go free. The Law Society points out that the existing provisions as they stand in the bill allow comment to the jury on the failure of the accused to comply with pre-trial disclosure. If that happens, it will perpetuate the problem of numerous appeals on this ground. As the Law Society also points out, if the purpose of comment is not to imply in some way the guilt of an accused, there seems little reason for making comment at all. I commend the amendments.

    The Hon. R. S. L. JONES [3.34 p.m.]: I strongly support the amendments moved by the Hon. P. J. Breen. When a similar bill was introduced in Victoria, the Labor Opposition expressed strong views on the danger of permitting a judge to comment on the failure of an accused to comply with pre-trial disclosure requirements. The Victorian Opposition called it "an extraordinary procedure". That comment applies equally to this bill. It is an extraordinary procedure whereby the judge is given the power to comment on the failure of an accused to disclose. The Government seems confused as to the purpose of the section.

    Why include proposed section 47E (4)—which prohibits a judge from suggesting to the jury that the accused did not comply with pre-trial disclosure because he or she is guilty—and yet permit the judge to comment at all? What other purpose is there to the judge's comments if he or she is not permitted to suggest that the accused is guilty? History and experience show us that when similar provisions have been introduced in the common law and the Evidence Act the courts have had more work, as lawyers contest the perceived bias or potential misdirections given to juries by judges. If the aim of the bill is to streamline cases and get a quicker justice system, this is plainly not the way to do it.

    The Hon. E. M. OBEID (Minister for Mineral Resources, and Minister for Fisheries) [3.35 p.m.]: The Government does not support these amendments. The amendments are aimed at preventing a judge commenting upon the failure of a defence to comply with the regime. Already the ability to comment is limited to the extent that a judge cannot suggest the guilt of an accused if the judge comments upon the defence not complying with an aspect of the pre-trial disclosure regime. The ability to comment is available where a judge feels that it is relevant to the management of the case to make a jury aware of the pre-trial disclosure regime and the failure of a party to comply with that regime. A jury should be able to know that a party has not complied with a court-imposed case management program. A party is on notice that a judge can make such a comment. The guilt or otherwise of an accused is not addressed in that context.

    Amendments negatived.

    Schedule 1 as amended agreed to.

    Schedule 2

    The Hon. P. J. BREEN [3.36 p.m.]: I move Reform the Legal System amendment No. 5:
        No. 5 Page 10, schedule 2 (proposed section 15A(3)), lines 18-22. Omit all words on those lines. Insert instead:
          (3) Police officers investigating alleged indictable offences also have a duty to retain any such documents or other things for so long as the duty to disclose them continues under this section. This subsection does not affect any other legal obligation with respect to the possession of the documents or other things.

          (4) The regulations may make provision for or with respect to the duties of police officers under this section, including for or with respect to:
              (a) the recording of any such information, documents or other things, and

              (b) verification of compliance with any such duty.

    This amendment addresses the issue of police officers retaining documents or other things for as long as the pre-trial disclosure duty continues. This is an important amendment because it brings the duty to retain documents into the legislation rather than leaving it to the regulations. As the video shown in the foyer of Parliament House says, the Executive Government does not make laws. Here is a law that quite properly falls under the jurisdiction of this Chamber. Too much police work is already left to regulation. I have previously given the example of police refusing to provide witnesses with a copy of their statements. The bill as it stands, with the regulations incorporated, has solved a large number of problems. However, this issue also needs to be included. The amendment is a small measure to bring police involved in a pre-trial disclosure under the umbrella of the bill. I commend the amendment.

    The Hon. E. M. OBEID (Minister for Mineral Resources, and Minister for Fisheries) [3.38 p.m.]: The Government can support this proposal that police must retain relevant documents.

    The Hon. Dr B. P. V. Pezzutti: Will the Government support it?

    The Hon. E. M. OBEID: We can support it.

    The Hon. Dr B. P. V. Pezzutti: You can?

    The Hon. E. M. OBEID: If the Hon. Dr B. P. V. Pezzutti listened to the answer he might ask a sensible question. I understand the police retain documents in any case. However, the amendment reminds them of the duty and prescribes it in the process to make pre-trial disclosure work effectively.

    The Hon. Dr B. P. V. PEZZUTTI [3.38 p.m.]: A person being prosecuted has to declare any witnesses or evidence he wishes to rely on to support his innocence. What added protection has been put in this bill to penalise police who tamper with those witnesses or that evidence?

    The Hon. E. M. OBEID (Minister for Mineral Resources, and Minister for Fisheries) [3.39 p.m.]: I will seek advice. I understand that the Leader of the House, the Hon. M. R.l Egan, has already answered this query. His remarks were addressed to the Hon. Dr B. P. V. Pezzutti but I will repeat what was said by the Leader of the House, even though it may take up Hansard's time. The Hon. Dr B. P. V. Pezzutti wants an assurance that when an accused person supplies names and addresses of witnesses, there are measures to prevent police from harassing witnesses. As the honourable member noted, this is a serious offence.

    The proposal that witnesses should provide names and addresses comes from the Law Reform Commission to the police so that police can check antecedents, but it applies only to character witnesses. Those witnesses cannot be interrogated by police without the leave of a court. This proviso is contained in the draft regulations. The proposal streamlines the trial process and assists the court. The defence is on notice that the antecedents of character witnesses will be checked.

    Amendment agreed to.

    Schedule 2 as amended agreed to.

    Schedule 3 agreed to.

    Title agreed to.

    Bill reported from Committee with amendments and report adopted.

    Third Reading

    The Hon. E. M. OBEID (Minister for Mineral Resources, and Minister for Fisheries) [3.42 p.m.]: I move:
        That this bill be now read a third time.

    The Hon. P. J. BREEN [3.42 p.m.]: I move:
        That the question be amended by the addition of the following paragraphs.

        2. That the provisions of the Criminal Procedure Amendment (Pre-Trial Disclosure) Bill, as passed by the House, be referred to the Standing Committee on Law and Justice for inquiry and report, together with the system of pre-trial disclosure in New South Wales including:
            (a) the provision of funding to various legal bodies required to undertake pre-trial disclosure, including but not limited to:
              (i) the Legal Aid Commission,

              (ii) the Office of the Director of Public Prosecutions,

              (iii) the Public Defenders,

              (iv) the Sydney Regional Aboriginal Corporation Legal Service and other Aboriginal legal services, and

              (v) any other legal service,

            (b) the frequency and type of pre-trial disclosure orders made in the Supreme Court and District Court,

            (c) the rate of compliance with pre-trial disclosure requirements by:
              (i) legally aided defendants,

              (ii) privately funded defendants,

              (iii) Police,

              (iv) the Office of the Director of Public Prosecutions,

            (d) the impact of pre-trial disclosure requirements on unrepresented defendants,

            (e) the effect of pre-trial disclosure requirements on court delays and waiting times in the Supreme Court, District Court and the Court of Criminal Appeal,

            (f) the effect of pre-trial disclosure requirements on the doctrine of the right to silence,

            (g) the effect of pre-trial disclosure requirements on the doctrine of the presumption of innocence,

            (h) the effect of pre-trial disclosure requirements on the doctrine of the burden of proof resting with the prosecution,

            (i) any other matter arising out of or incidental to these terms of reference.

        3. That the Committee report within 18 months from the date of commencement of the bill, as assented to.
    The Hon. J. M. SAMIOS [3.43 p.m.]: The Opposition supports the proposal.

    The Hon. E. M. OBEID (Minister for Mineral Resources, and Minister for Fisheries) [3.44 p.m.]: The Government is already committed to the legislation being reviewed after 18 months, and that is provided for in the bill. However, the Government understands that some members are concerned that the regime work effectively, be adequately resourced, and not disadvantage legitimate defence tactics. The Government has that same commitment. The Government has no difficulty in accepting the proposal that the Standing Committee on Law and Justice also monitor the impact of the legislation and report after an appropriate review stage.

    Reverend the Hon. F. J. NILE [3.44 p.m.]: In view of the various matters that have been referred to the Standing Committee on Law and Justice, will the Government give an assurance that the committee will have the resources to monitor the various provisions that have now been referred to it in addition to the references it already has?

    The Hon. E. M. OBEID (Minister for Mineral Resources, and Minister for Fisheries) [3.45 p.m.]: I am advised that the chairman of the committee believes there are sufficient funds and that the committee would examine these matters in the last six months of that 18-month period.

    Amendment agreed to.

    Motion as amended agreed to.

    Bill read a third time.