6
WEDNESDAY, JULY 6, 1988
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"IT WILL BE SEEN THAT THE DEFENCE RESPONSE IS TO BE PURELY DEFENSIVE AND RESPONSIVE, HE SAID. "THE ACCUSED IS NOT OBLIGED UNDER THIS PROPOSED REFORM TO REVEAL HIS POSITIVE CASE, AND IN THAT VERY REAL WAY, HIS RIGHT TO SILENCE IS PRESERVED."
MR SWAINE NOTED THAT THIS TONED-DOWN VERSION OF THE DEFENCE CASE REPRESENTED A WORKABLE COMPROMISE OF WHAT THE DEFENCE SHOULD BR OBLIGED TO DISCLOSE AT THE PREPARATORY HEARING. IT DID NOT GO AS FAR AS THE SELECT COMMITTEE RECOMMENDED.
HE WENT ON TO SAY THAT THE SELECT COMMITTEE'S RECOMMENDAT LON FOR DEFENCE DISCLOSURE WAS HEAVILY QUALIFIED AND REFLECTED THE REAL DILEMMA FACING IT OF PROPOSING REFORMS TO THE LAW WITHOUT UNDUE
SACRIFICE OF PRINCIPLE.
THAT DILEMMA HAD, HOWEVER, BEEN RESOLVED BY THE CONCEPT OF THE DEFENCE RESPONSE, HE SAID. BY THIS MEANS THE PROSECUTION WAS ABLE TO TELL WHICH PART OF ITS CASE WAS IN ISSUE AND WHICH PART WAS NOT.
"IT IS THUS ENABLED TO CONCENTRATE ON THE REAL ISSUES WHICH IT MUST PROVE ACCORDING TO THE NORMAL STANDARDS IN CRIMINAL CASES, HE SAID.
AS TO THOSE PARTS OF ITS CASE WHICH WERE NOT IN issue, THE PROSECUTION WAS ABLE BY MEANS OF THE NEW PROCEDURES ΤΟ CALL ON THE DEFENCE TO MAKE FORMAL ADMISSIONS AS TO FACTS AND DOCUMENTS, SWAINE SAID.
MR
THE JUDGE WAS TO HAVE POWER TO REQUIRE THE DEFENCE ΤΟ MAKE THESE ADMISSIONS OR TO STATE THE REASONS FOR ITS REFUSAL.
"UNDER SUB-CLAUSE (3) IT IS SUFFICIENT, IF THE DOCUMENT, FACT OR MATTER TO WHICH HIS REFUSAL RELATES IS CENTRAL TO A FACT ON WHICH THE ACCUSED TAKES ISSUE WITH THE PROSECUTION AS INDICATED IN THE DEFENCE RESPONSE, TO GIVE THIS AS A REASON," HE ADDED.
"IT WILL THEREFORE BE SEEN THAT THE DEFENCE RESPONSE IS THE KEY TO THE IMPROVED PROCEDURES.
"THE DEFENCE IS NOT OBLIGED ΤΟ BE CO-OPERATIVE WITH THE PROSECUTION IN NARROWING THE ISSUES BY SERVING A MEANINGFUL RESPONSE TO THE PROSECUTION CASE STATEMENT.
"IT MAY HAVE GENUINE REASONS FOR ADOPTING A CAUTIOUS LINE IN ITS RESPONSE.
THE ACCUSED DID, HOWEVER, TAKE THE RISK OF BEING PENALISED IN COSTS IF THE JUDGE CONSIDERED THAT SUCH COSTS HAD BEEN INCURRED AS A RESULT OF AN UNNECESSARY OR IMPROPER ACT OR OMISSION BY OR ON HIS BEHALF.
/MR SWAINE