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WEDNESDAY, JULY 6, 1988
REFORM ACHIEVED WITHOUT SACRIFICING PRINCIPLE
THE COMPLEX COMMERCIAL CRIMES BILL 1988 ACHIEVES THE OBJECT OF REFORM WITHOUT SACRIFICE OF PRINCIPLE AND CAN BE SUPPORTED, THE HON JOHN SWAINE SAID IN THE LEGISLATIVE COUNCIL TODAY (WEDNESDAY).
MR SWAINE SAID THE DIFFICULTY IN INTRODUCING THE BILL HAD BEEN TO ENSURE THAT THE MUCH NEEDED REFORM IN FRAUD TRIALS WAS
T INTRODUCED AT THE EXPENSE OF FUNDAMENTAL PRINCIPLE RELATING то THE BURDEN ON THE PROSECUTION TO PROVE THE GUILT OF THE ACCUSED AND TO THE RIGHT OF THE ACCUSED TO SILENCE.
SPEAKING DURING THE RESUMED DEBATE ON THE BILL, HE NOTED THAT IT HAD BEEN NECESSARY TO ENSURE THAT ONLY SUCH CRIMES AS MIGHT PROPERLY BE DESCRIBED AS COMPLEX COMMERCIAL, CRIMES WERE SUBJECT TO THE NEW PROCEDURES, AND THIS WAS ACHIEVED BY THE DEFINITION CLAUSE 3(B) (II) WHICH MADE CLEAR THAT THE FRAUD OR DISHONESTY WAS IN A COMMERCIAL CONTEXT AND THAT IT MUST BE BOTH SERIOUS AND COMPLEX.
MUCH OF THE IMPROVED PROCEDURE WOULD LIE IN THE PREPARATORY HEARING, BEFORE THE JURY WAS EMPANELLED.
"UNDER CLAUSE 9, IT IS FOR THE JUDGE TO DECIDE WHETHER SUCH A PREPARATORY HEARING SHOULD TAKE PLACE, AND HE MAY ACT ON THE APPLICATION EITHER OF THE PROSECUTOR OR OF THE PERSON INDICTED OR OF HIS OWN MOTION, MR SWAINE SAID.
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"AMONG HIS POWERS UNDER CLAUSE 13, THE JUDGE MAY ORDER THE PROSECUTOR TO SERVE ON THE ACCUSED AND DELIVER TO THE COURT A STATEMENT CONTAINING A CONCISE ACCOUNT OF THE FACTS AND THE INFERENCES SOUGHT TO BE DRAWN FROM THOSE FACTS ON WHICH THE PROSECUTION CASE WAS BASED, AND ALSO A STATEMENT OF ANY PROPOSITION OF LAW SPECIFICALLY APPLICABLE TO THE PROSECUTION CASE ON WHICH THE PROSECUTOR PROPOSED TO RELY.
HE
IT WOULD BE SEEN THAT THE PROSECUTION MIGHT BE ORDERED AT THIS EARLY STAGE TO DISCLOSE ITS CASE, AS PART OF THE REFORM TO ENSURE THAT THE TRUE ISSUES IN THE CASE WERE IDENTIFIED BEFORE THE JURY WAS EMPANELLED, MR SWAINE ADDED.
THE COMPLEMENTARY REFORM RELATING ΤΟ THE DEFENCE CASE WAN CONTAINED IN CLAUSE 16, BY WHICH THE JUDGE MIGHT ORDER THE ACCUSED TO SERVE ON THE PROSECUTOR AND DELIVER TO THE COURT A WRITTEN STATEMENT INDICATING THE FACTS AND INFERENCES ON WHICH HE TOOK ISSUE WITH THE PROSECUTION, AS WELL AS A WRITTEN STATEMENT OF ALL LAW IN REPLY TO ANY PROPOSITIONS OF LAW STATED BY THE
PROPOSITIONS OF PROSECUTOR.
"IT WILL