Attorney General Greg Smith will announce a law change designed to end the practice of using a legal " ambush " to present surprise evidence at jury trials. Both prosecution and defence will in future be required to detail their cases at the start of a trial. In the event that matters not forewarned are brought forward during the trial, the jury may be advised to come to a " negative conclusion " on the aspect of that evidence.
Like all matters pertaining to the law, this will become the point of argument about it's exact meaning. The intention seems fairly straight forward. Each side is required to give notice of the direction that both prosecution and defence will take, but it would be a travesty of justice if that precluded the introduction of fresh evidence that was uncovered during the process of the trial.
The direction of a trial often takes a new course as the result of something a witness says that was not anticipated. Lawyers are a crafty bunch and it seems that if a new direction of evidence is likely during cross examination, this should be disclosed at the start of the trial. It would be near impossible to outline all such possibilities in the opening gambit, leading to the inevitability of the other side trying to invoke that " negative conclusion " penalty.
At the same time, the attorney general seems to be taking an end run around the present " right to silence " that is part of the defence allowed an accused person. This will take the form of an " Evidence of Silence " caution which will be recited to the accused in the presence of an attorney. It will be similar to the " Miranda law " that applies in US courts.
Basically, it warns the accused that if matters are raised in court that the accused did not disclose to the police, those matters may have the " adverse finding " applied. It seems to be a reversal of the present situation. A person is not required to make any form of statement to prevent them inadvertently incriminating themselves. Under this law change, unless they make a statement any matters not disclosed can be adversely treated as a legitimate defence. It seems that " damned if you do - and damned if you don't " applies !
Few would disagree that we have a congestion problem in our courts. It often takes a very long time for cases to come to trial and sometimes the accused spends more time in prison on remand than can be expected as a result of a conviction. Anything that speeds up the court process would be welcome, just so long as it does not interfere with the protections that centuries of legal precedent have built into the legal system.
In principle, these procedural changes seem fine, but in practice they will probably prolong court time taken up with arguing the merits of each and every incident that arises in testimony. Tinkering with the law can have unintended consequences !
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