Scrutiny of Acts and Regulations Committee

Alert Digest No 2 of 2008

Ministerial Correspondence

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Criminal Procedure Legislation Amendment Bill 2007

The Bill was introduced into the Legislative Assembly on 20 November 2007 by the Hon. Rob Hulls MLA. The Committee reported on the Bill in Alert Digest No. 16 of 2007 tabled in the Parliament on 4 December 2007 and sought further information from the Minister.

The Minister’s response was carried in Alert Digest No. 1 of 2008. After considering the response the Committee resolved to write to the Minister in the following terms:

Committee’s Comment

The Committee thanks the Attorney-General for his response.

The Committee notes that the Attorney-General refers to empirical studies from NSW and Scotland as a basis for concluding that ‘it is possible to have sentence indications and discounts without inducing guilty pleas.’ (emphasis added.) The Committee observes that neither of those jurisdictions had (at the time of the study) a sentence indication system, such as the one proposed in clauses 5 & 7. As the Committee observed in its report, the sentence indication procedure ‘may place… defendants under heightened pressure to plead guilty.’ The Committee remains concerned that clauses 5 and 7 may be incompatible with defendants’ Charter rights not to be compelled to plead guilty and reiterates its reference of this issue to Parliament for its consideration.

The Committee also notes that that the Attorney-General’s answer to the following query from the Committee:

5. If, due to a reconstitution of the court or a successful Crown appeal against sentence, a defendant who pled guilty after a sentence indication receives a higher sentence than the one indicated, will the defendant be automatically entitled to withdraw the guilty plea? If not, will defendants be warned of this possibility at the sentence indication hearing? (emphasis added)

did not address the second question. The Committee refers to Parliament for its consideration the question of whether or not clauses 5 and 7, by not requiring that defendants to be warned of the possibility that a higher sentence than the one indicated may be imposed, is incompatible with defendant’s Charter rights to a fair hearing.

The Committee further notes that the Attorney-General, after expressing his view that clause 15, which changes court practice by removing an express option to reserve a plea after a committal, does not limit the Charter right of defendants to freedom of expression, does not address the Committee’s queries as to whether or not clause 15 falls within the Charter’s provisions for limits on freedom of expression. The Committee reiterates its view that the removal of an option to not plead at all (including the treatment of the defendant’s silence as a not guilty plea) may limit the defendant’s right not to speak. The Committee refers to Parliament for its consideration the questions of:

    • whether or not clause 15 limits the Charter right not to speak

    • if so, whether or not clause 15 is either:

      • reasonably necessary to respect others’ rights or to protect national security, public order, public health or public morality, according to the test in Charter s. 15(3); or

      • a demonstrably justified reasonable limit on defendants’ right not to speak according to the test in Charter s. 7(2)

The Committee additionally notes that the Attorney-General responds to the Committee’s concern that clause 16 (which expands the definition of the summary offence of wilful damage without retrospective effect) may be contrary to Charter s. 27(3) (which requires that people who have not yet been sentenced be eligible for a reduced penalty) by arguing that the definition of the indictable offence of damaging property should not be changed retrospectively. The Committee observes that clause 16 does not affect the definition of the indictable offence, but rather the definition of the summary offence. The Committee reiterates its view that clause 16, by not operating retrospectively, may be incompatible with the Charter right of people who damaged property to a value between $500 and $5000 and have not yet been sentenced to be ‘eligible for the reduced penalty’ that clause 16 makes available. The Committee refers to Parliament for its consideration the question of whether or not clause 16 is compatible with Charter s. 27(3).

The Committee finally notes that the Attorney-General’s response addresses in detail a number of rights engaged by the Bill that were not addressed in the Statement of Compatibility. The Committee observes that the Attorney-General has not responded to the Committee’s concerns about that Statement of Compatibility.

The Committee will write to the Attorney-General with respect to the above additional concerns.

The Committee makes no further comment.

Committee Room
25 February 2008

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria