Mr WETTENHALL (Tuesday 3 August 2010) (4.41 pm): I rise to speak in support of the Civil and
Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010. The Bligh government is committed
to a justice system that is transparent, accessible, open and understandable to the broad cross-section of
the Queensland community. The government has already proven itself in respect of those matters by progressing a streamlining of laws and procedures aimed at achieving a more efficient and cost-effective legal system but while achieving those aims balancing the rights of all of the participants in our legal system to ensure that justice and fair and equitable outcomes are at the centre of our reforms.

In the recent past we have established the Queensland Civil and Administrative Tribunal and Victim Assist Queensland and today that is reflected in this bill which follows from the Hon. Martin Moynihan AO, QC's review of the civil and criminal justice system in Queensland.

The bill significantly updates Queensland's criminal law and procedure in accordance with the social, technological and legal demands of the 21st century, and no system of justice can or should remain frozen in time. One of the truly important reforms in this bill is a streamlining of the committals process, and we have heard a bit from various speakers, particularly those from the other side of the House, in respect of this, and it is one of the more contentious aspects of the bill.

As the government spelled out in its response to the Moynihan review, the reforms to the committal process will be achieved by giving the magistracy overall responsibility for supervising the committal process and intervening when justified; by making it mandatory for evidence of witnesses to be given in statement form, subject to specified exceptions; and by making administrative committals the default position, with witnesses only being called either by the prosecution, by consent or by order of a magistrate who is satisfied that it is justified and sets
the parameters for cross-examination.

It is worth having a look at what that means, because if one had accepted what we have heard from members opposite one could be forgiven for thinking that access to committals and cross-examination of witnesses by the defence in committals has been abolished in Queensland, which of course is not the case at all. The magistrate retains the powers to allow witnesses to be cross-examined by the defence when, as I have said, the magistrate is satisfied that it is justified in the circumstances. The wording of the clause is that 'there are substantial reasons why, in the interests of justice, the maker should attend to give oral evidence or be made available for cross-examination on the written statement'.

Case law has established in other jurisdictions—namely, New South Wales—precisely what the considerations for a judicial officer will be in applying a provision carrying that terminology. The law in New South Wales is that in interpreting those provisions each case will depend on its own facts and circumstances and the issues likely to arise at trial, and it is not possible to define what might in a particular case constitute substantial reasons. The reasons advanced must have substance in the context of committal proceedings, and these points are noted in the explanatory notes to the bill at pages 6 and 7.

The categories of substantial reasons are not closed and flexibility of approach is required. It may be where the defence believes that cross-examination may result in the discharge of the defendant because the evidence does not justify committal; cross-examining certain witnesses may expose a weakness in the prosecution case, giving rise to a no-case submission; cross-examination is likely to substantially undermine the credit of an important witness; cross-examination is necessary to avoid the defendant being taken by surprise at trial; or the attendance of a witness will enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial.

Although there are certain preconditions set out, quite properly, in the bill before a magistrate can consider those matters and it is quite proper that in the circumstances those types of notifications are exchanged between the prosecution and defence, as it can be seen from the plain words of the bill and supported by the interpretation of similar words in other jurisdictions, the circumstances in which witnesses can be cross-examined are quite wide.

They are well understood in terms of the language of the bill, and certainly it is quite wrong and quite misleading, whether it be in debate here or elsewhere, to characterise these reforms as taking away a right to cross-examination.

There are a number of other provisions in the bill that will streamline the proceedings in the criminal courts in addition to the reforms to the committal process. One of those is enabling ex officio matters to be dealt with by the clerk of the court or by the registry. At the present time where ex officio indictments are agreed to be presented in the District or Supreme Court—which is a mechanism in essence to fast-track charges that cannot be dealt with summarily and bypass the committal process as it currently exists—the charges having been commenced in the Magistrates Court remain live, as it were, in the Magistrates Court until disposed of on that ex officio indictment in the higher court, necessitating under the current arrangements what can be numerous mentions before a magistrate when the matter is effectively being dealt with in another court. Those involve appearances by defendants, prosecutors and defence lawyers and are a complete and utter waste of time. These reforms will enable those matters to be dealt with in a common-sense, practical and efficient way by the registry.

Similarly, in respect of the committal proceedings themselves, where matters are not contentious, where they are to proceed on the written statements rather than any oral testimony and where it is agreed between the prosecution and the defence that no submissions need to be made in respect of the charges or whether a defendant has a case to answer, those matters can be dealt with by a clerk rather than clogging up a Magistrates Court with not contentious administrative matters. These are common-sense, practical matters that are going to free up the time and the resources of the Magistrates Court to deal with the contested issues that are of importance to all parties. Importantly, as has been mentioned quite sensibly by contributors on this side of the House, that will significantly reduce the delays in all of the jurisdictions. As has been mentioned before, justice delayed is justice denied.

As I have mentioned, registry committals can be performed in the absence of the parties. The clerk will commit the case for trial or sentence according to the advice provided by the defendant's legal representatives about whether the defendant pleads guilty or not. The clerk of the court does not have to consider the evidence, nor will the clerk of the court have powers in respect of bail.

As I said, another important initiative that has been designed to streamline the committal process is the restriction of the calling and cross-examination of prosecution witnesses. That happens when the prosecution does not rely on written statements for all of its witnesses. In that case, the witness or witnesses will attend to give oral evidence by way of examination-in-chief and cross-examination.

Where the prosecution agrees with the defence that the prosecution witness or witnesses are to be present for
cross-examination, in that case the witness or witnesses will attend. Their statements will be tendered by
the prosecution as evidence-in-chief and the witness or witnesses will be cross-examined by the defence.

A magistrate can direct that a witness or witnesses must attend to give evidence or be made available for
cross-examination on their written statement if the magistrate is satisfied that there are substantial reasons—and I have explained how those provisions will be interpreted.

If a court directs that a witness attend court, cross-examination will be limited to the reasons outlined by the magistrate for giving the direction unless the magistrate hearing the committal is satisfied that there are substantial reasons why, in the interests of justice, the cross-examination should be allowed.

Where a defendant is not successful in their application for a direction or is in custody, the magistrate may proceed with a full paper committal in the same way as the committals that currently exist under section 110A(6) of the Justices Act 1886 proceed. That, of course, is known as a hand-up committal.

No witnesses attend or are subject to cross-examination and the magistrate, with the consent of the
defendant's lawyer, commits the matter without consideration of the content of the statements. A defendant
who is not legally represented may be able to proceed by way of a full paper committal by a magistrate or
justices provided that the court is satisfied of certain things and the evidentiary threshold must be considered in those circumstances. At the present time, if a defendant is not legally represented at committal proceedings the only way that that committal can proceed, regardless of the defendant's intention, is if all witnesses are called to give full oral evidence.

The amendments in this bill enable paper committals to proceed where the defendant is not legally represented but where their right to make an application to the court to have oral evidence given or be cross-examined is explained to them.

Like all important matters in the administration of justice, the optimum outcome is never achieved by adopting positions that fulfil all of the concerns and requirements of one particular interest group or another. It is about balancing the competing interests. That is what the reforms in this bill achieve.

I want to conclude by mentioning that the extended jurisdiction of the Magistrates Court to hear and determine a wider range of offences will possibly increase the workload of that court. It will certainly increase the range and type of matters that will be heard by the legal representatives who assist defendants, particularly in the Magistrates Court, through the various duty lawyer services that operate in this state.

I want to take this opportunity to commend the good work of duty lawyers. Not only are duty lawyers provided by Legal Aid Queensland but also they are provided through a network of preferred suppliers to Legal Aid Queensland. So there are lawyers throughout Queensland who, for very limited reward, undertake the very important task of representing defendants in our Magistrates Court.

In consequence of these amendments, the range of matters on which duty lawyers will be called upon to give
advice and to represent people will be expanded. Certainly, in some cases the seriousness of the matters on which they will be called upon to give advice will be expanded. That is the case whether the defendants plead guilty or not guilty.

It certainly is the case that there may be ramifications in terms of the resources and the workload, particularly on duty lawyers. Having performed duty lawyer services for many years, I know only too well the important role they play in the administration of justice. That is something that the government will have to keep a very close eye on.

The circumstances in which not only duty lawyer services are provided but also grants of legal aid are made for representation in more serious cases in the Magistrates Court have to be monitored very carefully. Those are matters that I know the Attorney-General is very aware of. Those are also matters that I know concern members on both sides of the House, and quite properly. Those are matters that I am very confident the government will monitor closely and will be able to address as the full implications of these reforms become apparent in practice.

I commend the current Attorney-General and the former Attorney-General for the part that each of them played in steering the development of these important reforms and for bringing this legislation before the House.