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Tuesday, 30 June 1903


Mr MCDONALD (Kennedy) - I move -

That the following new sub-clause be added - "(2) Any person committed for trial for an indictable offence may at any time after committal and before the jury is sworn apply to a Judge in chambers for ohe appointment of counsel for his defence. If it be found to the satisfaction of the Judge that such person is without adequate means to provide such defence for himself, or that it is desirable in the interests of justice that such an appointment should be made,' the Judge shall certify this to the Attorney-General, who shall thereupon cause arrangements' to be made for the defence of the accused person."

There is nothing really new in my amendment. . It is merely an extension of a principle already adopted in most of the courts of Australia, when counsel are appointed to defend prisoners in capital cases. It was my original intention to move that a public defender be appointed, but seeing that, as the Bill stands, the High Court will be purely an appellate court, it would be an unwise waste of time to discuss that now. Further, the appointment of a public defender would involve a large amount of expenditure. While it would be a very good thing that a public defender should be appointed in t,he States to assist those persons who are without means to defend themselves, there is no need to go further than I hare done iti submitting the amendment now under consideration. There is this also to be said - - that, under the system which at present obtains, counsel who is assigned to defend a prisoner where a capital offence is charged is generally chosen at the last moment, and really has no time or opportunity to consider the defence in an adequate manner. Under wy proposal, after a man was committed for trial he would be able to make the necessary application and set the law in motion to obtain counsel to defend him properly. Counsel would be able to devote such time as was needed for the consideration of the facts, and would have an opportunity of working up the case. The majority of persons who are accused of offences under the criminal law.are totally unable to defend themselves. I remember a case which came under my own notice. I was a juryman concerned in the trial of a prisoner who had been committed by the lower court on a charge of perjury. An extraordinary procedure was adopted, according to what we were told by the Judge. The case was re-opened after the jury had been locked up 'for several hours, .and without leaving the box we acquitted the accused. That fact certainly showed that, if the accused had had the means of defending himself, there would have been no hesitation about acquitting him. in the first instance. But as the accused was undefended lie probably had a very narrow escape of undergoing a term of imprisonment. That would have been a grave act of injustice to him. I dare. say that other honorable members could quote a number of cases where such things have taken place. Under the circumstances I think it only right that provision should be made to enable those persons who are without means of defending themselves to acquire counsel to conduct their defence, and that the task of seeing that they are defended should be undertaken by the Government.


Mr DEAKIN - I confess that, in my study of the network of amendments which are necessary, I have overlooked the honorable member's proposition. In moving the amendment the honorable member has correctly stated the practice with which I am personally familiar, and which, I believe, is followed in the several States. The practice is to assign counsel to prisoners only in capital cases, and the power to do so is not very frequently employed; The first consideration in this matter is the unknown expense in which we should probably be involved by the acceptance of the amendment in .its present form. I was much interested in the quotation read by the honorable member for Kalgoorlie from the English Bill which is in his possession. That measure goes, perhaps, to another extreme ; but it indicates as much economy as consideration for the interests of the prisoner.


Mr Kirwan - We should not ask counsel to work for nothing.


Mr DEAKIN - Cases in which that occurs are more frequent than the honorable member is perhaps aware. If the honorable member for Kennedy will allow the matter to stand over, I will endeavour to form some opinion as to the probable cost which it would involve, or to frame some amendment of his proposal which would enable us to keep some check upon the cost. As it it is, the amendment would throw the door open to every man who asserted that he had not the means to prepare his defence.


Mr Watson - But the Judge would have tobe satisfied.


Mr DEAKIN - I am aware of that; but if the amendment were carried there never would . be a person indicted for an indictable offence who would confess that he was able to pay his legal expenses.


Mr Watson - He would have to be satisfied with second-rate legal assistance, because the Attorney-General would not assign him the foremost counsel at the Bar.


Mr DEAKIN - My experience goes to show that many persons whom one would suppose to be absolutely without means succeed in finding the funds necessary to enable them to engage leading counsel for their defence. These people belong to a class who, I am sure, would have no difficulty in establishing to the satisfaction of a Judge their inability to find the necessary money; but, nevertheless, the money is found, and the very best counsel engaged. I confess that I am speaking to this amendment without the consideration that I should desire. The honorable member will lose nothing by agreeing to temporarily withdraw it. If he does so, he" will have an opportunity of moving it again in committee, and, in the- meantime, I shall think over the possibility of safeguarding any measure of leniency which the Committee may desire to show. There is a great deal to be said on behalf of some such procedure as this, as long as the Commonwealth is adequately protected against unscrupulous people.


Mr McDonald - Does the honorable and learned gentleman desire that the whole clause shall be postponed ?


Mr DEAKIN - That course may be adopted if the honorable member prefers it.

Amendment, by leave, withdrawn.

Clause further postponed.

Postponed clauses 65 and 66 negatived.

Postponed clause 67 agreed to.

Postponed clause 68 negatived.

Postponed clause 69 -

When any person is under commitment upon a charge of an indictable offence against the laws of the Commonwealth, the Attorney-General may decline to proceed further in the prosecution, and. may, if the person is in custody, by warrantunder his hand direct the discharge of the person from custody, and he shall be discharged accordingly.

Mr. GLYNN(South Australia).- I wish to ask the Attorney-General whether he is. not prepared to modify this clause ? I understood, from the answer given by him to the Committee, that the services of theAttorneyGeneral of a State could be utilized, in these circumstances.


Mr Deakin - Yes.


Mr GLYNN - Under the clause as itstands it would be necessary for the AttorneyGeneral of the Commonwealth to take the necessary steps in every case in which itwas decided to abandon the prosecution. There might perhaps be forty or fifty cases.


Mr Deakin - I referred to cases under this Bill.(


Mr GLYNN - I recognise that therewould be very few Federal cases, but itmight be convenient to place the power of discontinuance in the hands of the AttorneyGeneral of a State.


Mr DEAKIN - I think that the opinion expressed by the honorable and learned member for South Australia, Mr. Glynn, iscorrect, and, therefore, I move -

That the words "or such other person as theGovernorGeneral appoints in that behalf," be inserted after the words "Attorney-General,"' line 3.

Amendment agreed to.-







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