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Trial by Judge Alone) Bill 2017

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Trial by Judge Alone) Bill 2017 40TH PARLIAMENT Report 42 STANDING COMMITTEE ON LEGISLATION Criminal Procedure Amendment (Trial by Judge Alone) Bill 2017 Presented by Hon Dr Sally Talbot MLC (Chair) May 2020 Standing Committee on Legislation Members as at the time of this inquiry: Hon Dr Sally Talbot MLC (Chair) Hon Nicholas Goiran MLC (Deputy Chair) Hon Pierre Yang MLC Hon Aaron Stonehouse MLC substitute Hon Colin de Grussa MLC for Hon Simon O'Brien MLC Staff as at the time of this inquiry: Ben King (Advisory Officer (Legal)) Kimberley Ould (Advisory Officer (Legal)) Tracey Sharpe (Committee Clerk) Address: Parliament House 4 Harvest Terrace, West Perth WA 6005 Telephone: 08 9222 7300 Email: [email protected] Website: www.parliament.wa.gov.au ISBN 978-1-925578-94-2 CONTENTS Executive summary .................................................................................................................................... i 1 Introduction ....................................................................................................................................... 1 Referral and procedure .............................................................................................................................................1 Policy and purpose of the Bill ................................................................................................................................2 Purpose of the Bill ................................................................................................................................................2 Policy of the Bill .....................................................................................................................................................2 Committee approach .................................................................................................................................................3 Consideration of fundamental legislative principles .....................................................................................3 Structure of report ......................................................................................................................................................4 2 Current law and amendments proposed by the Bill .................................................................... 5 Introduction ...................................................................................................................................................................5 Current provisions for trial by judge alone in Western Australia .............................................................6 Presumptive mode of trial .......................................................................................................................................7 Proposed new s 118(4) and deletion of ss 118(5) and (6) ..........................................................................8 3 Trial by judge alone legislation in Australia, New Zealand and the United Kingdom ........... 9 Introduction ...................................................................................................................................................................9 Election Model..............................................................................................................................................................9 South Australia ......................................................................................................................................................9 Australian Capital Territory ............................................................................................................................ 10 Interests of justice model ...................................................................................................................................... 11 New South Wales .............................................................................................................................................. 11 Western Australia .............................................................................................................................................. 11 Queensland .......................................................................................................................................................... 12 Jurisdictions where trial by judge alone is not available .......................................................................... 12 Victoria, Tasmania and the Northern Territory ...................................................................................... 12 Commonwealth offences ................................................................................................................................ 13 Summary of trial by judge alone provisions in Australia .......................................................................... 13 New Zealand .............................................................................................................................................................. 15 United Kingdom ....................................................................................................................................................... 15 4 Scrutiny of selected clauses in the Bill ......................................................................................... 16 Introduction ................................................................................................................................................................ 16 Clause 2 – commencement .................................................................................................................................. 16 FLP 12, Does the Bill allow the delegation of legislative power only in appropriate cases and to appropriate persons? ......................................................................................................................... 16 Clause 4 – new test .................................................................................................................................................. 17 The nature of the new test proposed by the Bill .................................................................................. 17 FLP 11, Is the Bill unambiguous and drafted in a sufficiently clear and precise way? ........... 20 5 Increase in trials by judge alone and appeals ............................................................................. 22 Introduction ................................................................................................................................................................ 22 Potential increase in the number of trials by judge alone ....................................................................... 22 Increase in appeals .................................................................................................................................................. 23 6 Efficiencies achieved by trial by judge alone .............................................................................. 26 Introduction ................................................................................................................................................................ 26 Direct costs of jury trials ........................................................................................................................................ 26 Dispensing with formalities of jury trial .......................................................................................................... 27 Advantages of dispensing with formalities ............................................................................................. 27 Disadvantages of dispensing with formalities ....................................................................................... 28 Committee comment ....................................................................................................................................... 30 No hung juries ........................................................................................................................................................... 31 The view that hung juries are undesirable............................................................................................... 31 The view that hung juries are not undesirable ...................................................................................... 31 Committee comment ....................................................................................................................................... 32 Aborted trials caused by juries ........................................................................................................................... 32 Requirement for judges to prepare written reasons .................................................................................. 33 The view that writing reasons takes longer than a day or two ....................................................... 33 The view that writing reasons does not take longer than a day or two ...................................... 34 Requirement for more judges ............................................................................................................................. 35 7 Other consequences of the Bill ..................................................................................................... 36 Introduction ...............................................................................................................................................................
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