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Tuesday, 28 May 1968


Mr HUGHES (Parkes) - I rise not to protect my professional reputation, such as it. is, but firstly to express my wonderment that the honourable member for Grayndler (Mr Daly) should cast strictures upon my capacity as a jury advocate. I do not defend myself against those strictures. All I say is that the honourable member's attitude is rather curious because quite often, in moments of fright, he has asked me whether I would appear for him in cases which he would well know would be conducted before a jury, because the cases about which he has asked me have been projected libel actions, threatened to be brought against him by members of his own Caucus.


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - I rise to order. In his rather frivolous contribution the honourable member for Parkes is surely breaching the ethics of the legal profession in telling the Committee publicly what has occurred in briefings conducted between himself and the honourable member for Grayndler.


The CHAIRMAN - Order! I suggest that the point raised by the honourable member for Hindmarsh is about as relevant as have been the remarks made so far by the honourable member for Parkes.


Mr HUGHES - The honourable member for Hindmarsh has shown once again that he is a poor taker of points of order as well as a poor sport. To get to the substance of the amendment. I stand entirely by what 1 said the other day in relation to this proposal: Charges for an offence against clause 20 should be dealt with by a jury at the option of the accused. I oppose the amendment because the case that is put forward in support of it is an attempt by the Opposition to legislate by catch cry; by invoking a time-honoured principle, which we all accept, but by misapplying the principle. The timehonoured principle is clear enough. It is that in those cases, particularly cases of crime or cases involving fraud or some form of bad faith, or involving defamation of one citizen by another, where there is likely to be a sharp issue of fact - where there is likely to be an acute contest between various witnesses as to who is to be believed - the jury is the constitutional tribunal and the proper tribunal because in such cases the jury brings to bear not special legal knowledge - that is not what the jury is there for - but commonsense and a knowledge of what goes on in the world beyond the perhaps cloistered atmosphere of the law courts. For a task of that kind juries are not only a desirable institution but a necessary institution. Nobody would controvert that proposition. Those are essentially the types of cases where juries are apposite.

The point 1 make against the amendment is that no case exists for committing to a jury the performance of the task of determining whether a person has offended against clause 20, because the particular talents of the jury are not apposite for the performance of that task. As I have said before, there are three ingredients to an offence against clause 20. They are matters which involve no controversial issues of proof. They are matters which are not calculated to excite a sharp issue of fact or of credibility as between witnesses. The first issue is whether a notice has been served. Who in his right senses could seriously contend that proof of service of a notice is a controversial issue of fact? Either it was served or it was not served. The next issue is whether the accused was liable at the relevant time to render service. That depends basically upon proof of his age and upon the fact that a call-up document had been served on him. The third issue is whether the accused has rendered the service. Again, this is a non-controversial question. It is noncontroversial in the sense in which I use the term because it is not a question that brings forth any sharp issue upon which the tribunal deciding fact has to make a determination as between competing witnesses.

For these reasons I characterise the amendment as an attempt to legislate by catch cry. It is not a very worthy attempt. It is an attempt which should be repelled by this Committee.







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