This speech was delivered on 30/1/2014 in the NSW Upper House. You can read the full debate online here.
Mr DAVID SHOEBRIDGE [4.26 p.m.]: I speak to the Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014 and the Liquor Amendment Bill 2014. At the outset I commend and endorse the words of my colleague Dr John Kaye on the Liquor Amendment Bill 2014 and the words of my colleague Dr Mehreen Faruqi on both bills. I will endeavour not to repeat their well-made points. I will keep my focus on the Crimes and Other Legislation Amendment (Assault and Intoxication) Bill. This is the bill that expands the regime of mandatory sentencing here in New South Wales. It also puts in place effectively a strict liability offence for these one-punch laws.
Mandatory sentencing and the concept of strict liability, regardless of the intention—one is found guilty of a criminal offence—ought to have no place in a criminal justice system that gives meaning to the word “justice”. The substance of this bill is to insert a new section 25A into the Crimes Act for the offence of assault causing death. The key elements of that offence are, first, if a person intentionally assaults another person with their body or an object; second, the assault is not authorised or excused by law; and third, the assault causes the death of the other person.
Intent is irrelevant, reasonable foreseeability is irrelevant and for the basic offence intoxication is irrelevant; it is strict liability and the maximum sentence is 20 years. Section 25A (2) relates to an aggravated offence that applies only to those persons over 18 who are intoxicated when committing the offence. Intoxication is defined by reference to part 11A of the Crimes Act. That effectively says that intoxication means intoxication because of the influence of alcohol, a drug or any other substance, so it is an entirely circular definition that is found within the Crimes Act. If a person is intoxicated, he or she is intoxicated by reason of taking a drug or alcohol. There is a deeming provision that provides that if there is a certificate stating that the blood alcohol reading is greater than 0.15, that person is deemed to be intoxicated, but otherwise it falls back upon the rather circular definition that you are intoxicated if you are intoxicated.
The penalty for committing that offence while intoxicated is a new mandatory minimum of eight years. As I said before, the definition of causation is where the person is killed as a result of injuries received either directly from the assault or from hitting the ground or some object as a consequence of the assault. Intention, reasonable foreseeability, the most wildly unlikely set of scenarios that arise from an initial striking, if it results in death, even without any intention at all or any reasonable foreseeability, will ground the offence. If someone does it while intoxicated, he or she will receive eight years in jail, regardless of the circumstances and the justice.
It is an extraordinary expansion of mandatory sentencing in this State. The bill creates the power for a police officer to require a breath test and the provision of a urine or blood sample following the arrest of an offender for the aggravated charge of assault causing death. In circumstances where the victim has not died but there is a concern that the victim may die and there is sufficient basis for charging an offender with assault or similar offence the police may require a blood test. The failure to provide a blood test or urine analysis carries a two-year criminal penalty. I imagine that will be an area of significant legal exploration when these bills find their way on to the statute books. The bill specifically excludes self-induced intoxication as a point of mitigation. That has already been excluded by Court of Appeal judgements, but the Government wants to make a point and explicitly exclude it by statute.
There are provisions in the bill that provide substantially greater penalties for possession or dealing of steroids, effectively classing steroids as narcotic drugs. Last, this bill brings in substantially increased penalties for offensive conduct, offensive language in a public place or for failure to comply with a move-on direction by a member of the NSW Police Force. There has been widespread, almost unanimous, condemnation by the legal fraternity across the State of the mandatory sentencing provisions in the bill. Legal organisations in New South Wales such as the Bar Association, Law Society, Australian Lawyers for Human Rights and other civil liberty groups have unanimously condemned this legislation and have done so based on solid and responsible grounds. The primary reason is that mandatory sentencing does not work to deter or reduce crime. It has not worked in New South Wales, the Northern Territory, Western Australia or the United States to reduce crime. It does not deter crime.
The United States has had a two-plus decade experiment with mandatory sentencing and its federal prisons are filled to overflowing with persons convicted under draconian mandatory sentencing laws. Classes of offences for which mandatory sentences apply continue to have steady rates of offending. Last year the Obama administration saw the light and began to wind back mandatory sentencing provisions realising it is a comprehensive policy failure that is costing billions of dollars, destroying lives, producing unjust outcomes and not deterring crime. When they applied mandatory sentencing in the Northern Territory offending rates for the classes of offences where it applied increased. The jails filled and new jails had to be built. In the Northern Territory the jails were predominantly filled with Aboriginal offenders while in the United States federal prisons are predominantly filled with citizens who are black or Hispanic.
When Western Australia rolled out mandatory sentencing the prison population exploded with a vast increase in primarily Aboriginal persons being incarcerated under mandatory sentencing laws. Western Australia maintains mandatory sentencing laws. There is not one jurisdiction where mandatory sentencing laws have led to a reduction in crime. As lawmakers parliamentarians have an obligation to respond to the spate of alcohol-related violence highlighted in New South Wales, and particularly in Sydney and Kings Cross, where families have had their sons killed as a result of alcohol-related violence. Each week the tragedy of women who are killed or injured by their partners as a result of alcohol-related violence continues. Parliament has a responsibility to enact laws that go further than dealing with the wreckage through increased penalties that do not deter offending; it has a far more important and serious obligation as lawmakers to pass laws that will prevent the offence in the first place. Mandatory sentencing does not do that.
The most cursory examination of the circumstances makes it apparent mandatory sentencing does not work for crimes of violence or where the assailant is intoxicated. A person who is intoxicated and angry with another person is hardly going to think the process through and say, “Well, I was going to punch this person but I have heard the New South Wales Government has increased the sentences for this so on mature reflection, despite being angry and intoxicated on the streets of Kings Cross, I will not engage in violence because I might face an eight-year or four-year sentence instead of a two-year sentence.” Study after study has proved that is not the thinking engaged in by offenders and it has proved that mandatory sentencing does not deter persons from committing crimes.
A study by the Bureau of Crime Statistics and Research indicates that a likelihood of apprehension, charge and conviction does deter crime but increasing sentences does not and never has deterred criminal offences. These bills will not make the State any safer. They will not deter offenders from committing crimes and sadly they will not prevent alcohol-fuelled violence on the streets. With the exception of one or two individual outliers the legal profession and civil liberty groups in the State are unanimously against these laws and they have endorsed that view in written submissions. In a communication to all members of this Parliament the NSW Council for Civil Liberties Inc. stated on 28 January:
- Our fundamental objection to mandatory minimum sentencing is that it inevitably leads to injustice in individual cases by preventing the court from taking into account all relevant circumstances surrounding the offence, the offender and the victim. There will be significant numbers of unjust and anomalous sentencing outcomes.
- The court system will come under considerable additional strain as it can be expected that persons charged with any of these offences will avoid guilty pleas in the face of mandatory minimum sentences. The policy of promoting early guilty pleas through discounts on sentences will be seriously compromised. More offences will go on election to the District Court and more will result in defended trials, entailing more time and effort for prosecutors and defence lawyers and longer delays for police and victims to have their cases resolved.
It will not deter offending. It will increase the costs in the legal system and it will lead to the families of victims being dragged through ever longer criminal proceedings. In their communication of 24 January Australian Lawyers for Human Rights indicated their opposition to mandatory minimum sentences. The Law Society’s Criminal Law and Juvenile Justice Committees met after the Government’s announcement on 21 January. They state:
- It is an established principal that the sentencing of offenders should take place on an individual basis. Mandatory minimum sentencing is a one size fits all form of justice which excludes the discretion of judges. The [Premier’s] media release refers to “serious assaults where drugs and alcohol are involved” and a table of offences is also provided. This will create an inflexible penalty structure which excludes the operation of judicial discretion. Mandatory minimum sentencing will prevent the court from being able to give proper consideration to the objective and subjective circumstances of each case which can result in injustice.
Reiterating the concerns of the Council for Civil Liberties they state:
- It is the Committees’ view that from the offender’s perspective, there is little to lose in requiring the prosecution to prove its case. As a result, more offenders may elect to have their matters heard at trial. Victims will therefore be referred to give evidence and relive their experience. As a result of more matters going to trial, and in the knowledge that mandatory minimum sentencing can lead to injustice, the Committees anticipate that there may be reluctance by jurors to convict in some cases.
None of these consequences appears to have been considered by the Government before it introduced these bills. Indeed, none of these serious consequences could have been considered by the bulk of members who were confronted with this legislation when it came hot off the photocopier at 9.45 a.m. today. We have had mock scrutiny of these bills over the past six hours. There is a pretence that elected representatives have individually scrutinised and considered these bills, but that has not happened.
A small group of the leaders of the major parties in the lower House decided that these laws should be supported because it would play out badly in the media if they were not. They then told the other members of the lower House—apart from a Greens member and two Independents—that they should support the bills regardless of what they thought of them and regardless of the fact that they had not read them. These bills have been subjected to pretend scrutiny in the other place. It has been a travesty of democracy and it demonstrates that this is a pretend democratic process. The legislation has not been considered by members who are notionally elected to represent the interests of their electorate. What they think about the bills is irrelevant; they simply rubber stamped them while they were still warm from the photocopier at 9.45 this morning. That is not democracy; it is a joke, and it is now happening with majority support in this place. Former Director of Public Prosecutions Nicholas Cowdery stated in a keynote presentation to the Law Institute of Victoria Criminal Law Conference in July 2011:
- Mandatory sentencing is antithetical to justice. Why, then, do we see politicians returning like dogs to lick at it and why should we need to be discussing it at all today?
He then went into great detail about the history of mandatory sentencing in this State and across Australia. He included the following quote from former Chief Justice Spigelman:
- Specifically, the requirements of justice, in the sense of just desserts, and of mercy, often conflict. Yet we live in a society which values both justice and mercy.
Of course, mandatory minimum sentences provide no scope for mercy—it is irrelevant. Even if a judge wanted to be merciful to an offender because the offence was committed after gross provocation or the person had suffered enormous, overwhelming tragedy before committing an ill-considered act with no intent and no foreseeability that someone would die as a result, he could not do so. The overwhelming tragedy, the gross provocation, the lack of intent and foreseeability is irrelevant if the assailant is intoxicated. Such an assailant will serve a minimum of eight years in jail.There has been some discussion about the minimum sentence imposed by this legislation. In fact, the last minute amendment pushed through by the Attorney General will not ensure an eight-year minimum sentence. The legislation now provides for a minimum eight-year non-parole period. Given the requirement that the standard non-parole period be at least three-quarters of the sentence, the minimum sentence will be 12 years. I do not think that anyone considered that when the legislation was rushed through the other place. The mandatory minimum non-parole period will be eight years, but that means a mandatory minimum sentence of 12 years’ imprisonment. We had seconds of notice about that amendment and it was not even considered by Cabinet, which is another example of the pretend scrutiny that occurs in this place.
New South Wales tried mandatory minimum sentences in 1883. After a red-hot media campaign undertaken by theSydney Morning Herald and other media organisations in the late 1870s and early 1880s the government of the day rolled out mandatory minimum sentences. Nicholas Cowdery addressed that in his presentation to the Law Institute of Victoria and quoted the 27 September 1883 editorial in the Sydney Morning Herald, which stated:
- We have the fact before us that in a case where a light penalty would have satisfied the claims of justice, the judge was prevented from doing what he believed to be right, and was compelled to pass a sentence which he believed to be excessive, and therefore unjust, because the rigidity of the law left him no discretion.
Mandatory minimum sentences were repealed after a counter campaign a little more than 12 months after they were introduced. Of course, this Government will not be satisfied with this first bite at mandatory minimum sentences. We know that the right wing elements in the Cabinet—one of whom is sitting at the table—rolled the Attorney General and forced the Premier to make a statement about introducing an array of other mandatory minimum sentences for assaulting police and assault occasioning actual bodily harm. If any such offence is committed while the perpetrators are intoxicated the Government plans to send them to jail for a minimum of two years unless they have committed the offence in company, in which case the minimum sentence will be three years in prison.The Shooters and Fishers Party has said that it wants more mandatory minimum sentences. Given that, in a matter of weeks we will be considering yet more bad legislation imposing mandatory minimum sentences and more unjust criminal legislation. If that happens, our prison population will swell. We have an obligation to ensure that there are no more tragedies in New South Wales and to create a fair criminal justice system. These bills will not achieve that.
Second Reading 18/3/2014
Mr DAVID SHOEBRIDGE [3.26 p.m.]: I speak on behalf of The Greens against mandatory sentencing laws. It is a matter of principle for The Greens to respect the separation of powers. It is the responsibility of this Parliament to ensure that when a sentence is imposed for a criminal offence it is imposed by a statutorily independent judge. It is wrong in principle for the Parliament to seek to fetter the discretion of a judge and, in effect, become the sentencing authority in New South Wales. It is wrong for laws relating to murder, manslaughter, unlawful death, assault and for offences involving intoxication to have mandatory sentences. The Greens will vote against this bill because it is wrong in principle.
The Crimes Amendment (Intoxication) Bill 2014 comes about through a sorry history of a renewed law and order auction in this State. Over the summer a series of highly emotional exchanges occurred between Government, theDaily Telegraph and the Sydney Morning Herald, which are the two major newspapers in this State, a number of conservative commentators and the Leader of the Opposition. This highly emotional debate about alcohol-related violence occurred largely due to two tragic cases, in one of which a young person had his life taken as a result of an alcohol-related assault. I say “alcohol-related assault” because the assailants were intoxicated; whether or not the assault came about as a result of the intoxication has not been established. Much of the discussion about alcohol-fuelled violence and alcohol-related offences has occurred in the absence of solid empirical study linking the consumption of alcohol to the individual offences. It is undoubtedly the case that the widespread consumption of alcohol does lead to more violence in our State.
Intoxication leads to a lowering of inhibition thresholds and self-control and to an increase in violence on our streets, in licensed premises or, all too often and tragically, in people’s private homes in domestic violence. Alcohol-related violence and the scourge of domestic violence and assaults on our streets is quite properly a matter for public debate. The Greens are concerned that the debate that has taken place over the past few months has created widespread moral panic. In the face of evidence that showed substantial ongoing reductions across the State in the classes of violence in which this Parliament is now moving to impose mandatory sentencing—consistent statewide reductions in alcohol-related violence, assaults in licensed premises and in known entertainment precincts—a campaign was run that there was a pressing and urgent need to deal with what was seen as a crisis. The Leader of the Opposition repeatedly called for the return of Parliament during the summer recess.
A series of individual tragedies do not on a statewide basis produce a crisis. They were deeply tragic events and they require a considered policy response, not a kneejerk reaction. What did we get? In that pressure cooker environment we got a kneejerk reaction and what appears in hindsight to be a deeply embarrassing one for the Premier. On 21 January the Premier announced a raft of new mandatory sentences: eight years jail for one-punch laws; two years jail as a mandatory minimum sentence for assault occasioning actual bodily harm by an intoxicated person; a mandatory minimum sentence of two years for assaulting police by anyone who is intoxicated and an additional one or two years for assaults in company.
The Premier beat his chest, briefed the public and handed out the table of offences for the new mandatory minimum sentences and said that this was what the Government was going to do. It is clear the Premier had no idea what he was talking about. Nobody had sat down with him and given him the most basic briefing regarding the number of offences and individuals who would be roped in by that announcement. I see the Minister for Police and Emergency Services in the House and I wonder what, if anything, he said to the Premier across the Cabinet table while the Premier was ticking off this harebrained proposal he announced on 21 January: “Don’t worry, Premier, it’s all right, my mates on the Right wing will protect you on this, we’ve got your wing. We’ll cover you, don’t you worry; it will all be good. Don’t worry about the numbers, don’t ask the Treasury, Mr Premier, don’t talk to the Attorney, he will mislead you like he always does.”
The Hon. Adam Searle: The current Attorney.
Mr DAVID SHOEBRIDGE: I note that interjection. “Don’t go worrying about this, we’ll protect you, Mr Premier; you make the announcements and we will be right there behind you.” Of course they were right there behind him; they were not making any of these silly pronouncements—they pushed the Premier out. He said he would bring forward this raft of mandatory offences. Suddenly, the community, the Bar Association and the Law Society looked into the proposal and my office crunched the numbers. It was quite apparent that far from the reassurance that the Minister for Police and Emergency Services no doubt gave the Premier in Cabinet, if the Government had legislated for the Premier’s harebrained scheme announced in January there would have been a 50 per cent increase in the prison population. The Government would have had to build six new Junee prisons to deal with the Premier’s thought bubble. The policy would have cost the State billions of dollars in infrastructure, additional court time, judges, and ongoing expenditure.
After those comfortable assurances were given to the Premier in Cabinet, suddenly the proposal came to Treasury and no doubt someone in Treasury looked at the policy and phoned up someone in the Department of Attorney General and Justice and said, “How many people are we talking about?” Then the department might have phoned the Bureau of Crime Statistics and Research and asked for the numbers, given them to the Attorney General or the Minister for Police and Emergency Services, who would give them to the Treasury who would then send a memo to the Premier saying, “I am terribly sorry but the announcement you just made will cost the State $2 billion in the first year. We don’t have enough prisons; you will have to build a whole bunch of new prisons. Put off that silly infrastructure you have been talking about because the Minister’s new prisons will cost $2 billion.”
The Hon. Robert Borsak: That is infrastructure.
Mr DAVID SHOEBRIDGE: I hear the interjection from the Hon. Robert Borsak. That would have been the only infrastructure project the New South Wales Government would have committed to. The only regional jobs would have been—
The Hon. Robert Borsak: WestConnex straight to the new jail.
Mr DAVID SHOEBRIDGE: That is right, a motorway to the new jail at Junee. That would have been the only infrastructure that this Government would have been able to afford. After the thought bubble got popped by the brutal winds of reality the Government then backed down but you will not hear them talking about it being a backdown; you will hear them continuing to beat their chest about mandatory sentencing and putting forward the proposition that mandatory sentencing in some way is a rational policy response to violence on our streets; and it is not. Wherever mandatory sentencing has been tried it has failed to deter crime. In the Northern Territory a raft of new mandatory sentencing laws were brought forward and not only did they not deter crime but the classes of crime for which mandatory sentences were imposed in the Northern Territory actually increased. The position was the same in Western Australia after mandatory sentencing was rolled out; crime increased for those classes of offences compared with general offences.
In the United States, state and federal jurisdictions have time after time rolled out mandatory sentencing for drug laws and violent crimes—the “three strikes and you are in” laws. It has failed absolutely to deter crime in the United States. In fact, in the face of mandatory sentencing crime in many areas initially increased. Not only did crime increase, some states, particularly in the south, had to come to grips with the kind of policy and budgetary outcomes that I mentioned earlier in this contribution. The budgets of those states are crippled by their corrective services budget. They do not have money to build roads or build and staff the schools because a vast proportion of their budget is spent in incarcerating their fellow citizens. Even those redneck states which are to the far right of this Coalition Government are reviewing their mandatory sentencing laws and removing a number of them because not only do they not work, they cannot afford them.
This bill proposes a thankfully more limited but still offensively large range of mandatory sentencing provisions in the Crimes Act. It proposes to insert a series of new provisions after section 35 dealing with reckless grievous bodily harm or wounding when the assailant is intoxicated and new provisions in sections 59 and 60 dealing with assault and other actions against police when the assailant is intoxicated. The mandatory minimum sentences start at three years and increase to five years, depending upon the severity of those offences. The mandatory sentences will of course apply only where the offence is committed in a public place by an adult who is intoxicated. A new section 8A is proposed to be inserted into the Act that defines intoxication for the purpose of these offences and it includes the kind of wording that looks like it comes straight out of a 1970s cop show. It says that a person is intoxicated if:
- (a) the person’s speech, balance, co-ordination or behaviour is noticeably affected as the result of the consumption or taking of alcohol or a narcotic drug (or any other intoxicating substance in conjunction with alcohol or a narcotic drug), or
- (b) there was present in the person’s breath or blood the prescribed concentration of alcohol.
So if the person registers 0.15 or above the person is presumed to be intoxicated but otherwise it is whether or not the attending police said, “Well your Honour, he looked pretty pissed to me; his speech appeared to be slurred, it was late at night, and he seemed to be walking with an uneven gait.” We are going straight back to a pre-Wran administration. It is the verbal reports of police that lead to people being put in jail for three, four or five years. It is deeply troubling to propose that somebody’s liberty will be taken away for five years based on whether or not a couple of police recounting the offence they saw late at night, often on a dark street, believe that in their eyes that person’s speech, balance, coordination or behaviour was noticeably affected as a result of the consumption or taking of alcohol or a narcotic drug.
It may well be that the courts take a very tough view of that by saying that the police observation is only the first part and it is necessary to have a strong forensic case to prove not just on the balance of probabilities but beyond reasonable doubt that whatever the police observed was, as the proposed law says, “the result of the consumption or taking of alcohol”. People I have spoken to who regularly defend criminal matters are very concerned that the verbal reports of the police will determine whether somebody facing three or five years in jail as a mandatory minimum will have a fair sentencing hearing before a judge with some judicial discretion. A power is created for the police to require a breath test or urine sample after they have arrested a person for an aggravated intoxication offence. Also, there is a series of offences in relation to anyone who in the following 12 hours consumes something that in any way changes their blood-alcohol reading.
We know a couple of things about mandatory sentencing. We know it does not work to deter crime and we know absolutely it has a statistically unfair impact on vulnerable members of the community. If we get mandatory sentencing through this bill, even as amended, we know who will be most impacted: the most vulnerable people in this community. It is most likely to be applied against Aboriginal members of the community, against the homeless, against the mentally ill and against young people. We know that because in every jurisdiction where it has been tried, it most impacts on people of colour, on homeless people, on the mentally ill and on young people. There is no reason at all to think it will be any different in New South Wales. A series of submissions has been made, and I am sure all members have received them. It is unfortunate that the Government has not read those submissions. I note that the Law Society in its submission of 4 March 2013 said:
- The Committees submit that the broad definition of intoxication is likely to have a particularly severe impact on Indigenous people, given their complicated relationship with the police and will likely greater disadvantage their ability to test the evidence (particularly at a time when the Aboriginal Legal Service is facing funding cuts). The Committees’ further view is that the focus on intoxication “in public” will also impact more harshly on Indigenous people, amongst other vulnerable groups. Consorting laws are a good example of how Parliament’s intent can differ significantly from the effect of the legislation. Recent statistics from the NSW Ombudsman showed that in around 70% of the cases sampled, consorting provisions were used by frontline police against Aboriginal people, and not to break up organised crime associations. The proposed bill is not consistent with efforts to reduce the incarceration rate of Indigenous peoples.
I note and endorse those comments from the Law Society. The Bar Association has made a series of submissions to parliamentarians, hoping to get some kind of rational response from elected representatives. I note one part of the association’s third briefing note, which was provided on 27 February.
- The Association has always strongly objected to mandatory minimum sentences and does not consider such sentences to be an effective way of addressing drug and alcohol-related violence. A briefing note was circulated in January setting up the Association’s position. An additional briefing note expanded on some of those points using the offences of assault occasioning actual bodily harm and assault against a police officer in the execution of duty as examples.
- Mandatory minimum sentences always carry a real risk that unjust sentences will be handed down, and this is particularly the case with mandatory sentences of imprisonment for what may in fact be comparatively minor offences.
- Take the example of reckless infliction of grievous bodily harm or wounding to a police officer in the execution of the officer’s duty where the offender was intoxicated in public … The mandatory minimum sentence is 5 years imprisonment.
- To constitute a ‘wounding’, it is sufficient that there is an injury by which the interior of the skin is broken. No instrument or weapon need be used, so that a split lip inflicted by a punch is a ‘wounding’.
This Government is proposing that people go to jail for a mandatory minimum of three years if they give someone a split lip when intoxicated in public. Again, no thought seems to have gone into the drafting of this legislation and the real-life impacts of this legislation. This legislation has been pushed forward by the Premier as a result of his thought bubble. The impacts of this bill, even if it is amended—and I note that Labor is putting forward some amendments, which would be an improvement on what is otherwise an absolutely disastrous piece of legislation—will be far reaching. It is intended, for those in the Government who support mandatory sentencing, to be, as the one-punch laws were, the thin end of the wedge on mandatory sentencing. They got it in one of the first bills that came before this Parliament, about the death of a police officer on duty. They then got it on one-punch laws and they can expand it into other violence offences occurring on the street.
Reverend the Hon. Fred Nile: Child sexual abuse.
Mr DAVID SHOEBRIDGE: I hear the interjection about child sexual abuse. Almost certainly the proponents will push to expand it into other areas, and that would have to be one of the likely candidates. Mandatory sentencing is wrong in principle. It does not depend upon the nature of the offence, whether it is the appalling crime of murder or the appalling crime of child sexual offences. It is wrong in principle, because it messes with the separation of powers and it fetters the very reasonable discretion of our judicial members.
Second Reading 19/3/2014 (Debate resumed from 18/3/2014)
Mr DAVID SHOEBRIDGE [4.55 p.m.], by leave: I move The Greens amendments Nos 1 and 2 on sheet 2014-019 in globo:
- No. 1 Page 3, schedule 1 , lines 2 and 3. Omit all words on those lines.
- No. 2 Page 3, schedule 1  (proposed section 8A (2)), lines 15-22. Omit all words on those lines.
These amendments together, if successful, will remove the new definition of intoxication that this bill proposes to insert in section 8A of the Crimes Act. It seeks to insert the new definition for not only the one-punch law that was enacted as new section 55A of the Crimes Act but also for each of the new provisions that are proposed to be inserted as a result of this amending bill. In my contribution on the second reading debate I stated why The Greens are opposed to this proposed new definition of intoxication.
As it currently stands, the definition of intoxication under the Crimes Act will, if we go through a circular process, arrive at the conclusion that a judge is to form the view that a person is intoxicated if that person is intoxicated by reason of the consumption of drugs or alcohol. There is a good deal of case law about how the judge is to form that view. The judge can, in those circumstances, obtain evidence from people who have known training and skills in identifying whether a person is intoxicated. A witness who has undertaken a responsible service of alcohol course may occasionally, if that person can prove he is her qualifications, be accepted to give evidence before a judge.
The witness must satisfy the judge that he or she has done the responsible service of alcohol training course and has a certain degree of training and knowledge in this regard. Based on that skill, training and experience the person may then give evidence that he or she believes the person was intoxicated due to, for example, slurred speech, dropped drinks or the consumption of five or six schooners of beer. Real caution is applied under the current law to the evidence of a police officer or member of the community who comes forward and says, “They looked to be pissed to me.” There is a long history of concern in the courts about that kind of layperson’s opinion on what can often be a very technical and difficult issue. There are circumstances where lay evidence or evidence from police can be so compelling it can be admitted to prove the question of intoxication, if it is relevant.
Often it is not relevant. Very rarely is it relevant to offences under the Crimes Act in this State. There are circumstances where a police officer’s evidence can be admitted to prove intoxication. It is constrained by a well-developed body of case law dealing with the proof of expert and technical issues ensuring that people are not effectively verballed by third parties or police officers or people who, even if they believe there may be intoxication, do not have a proper basis to give that evidence before a court. Their evidence, even if accepted, should not be persuasive in forming the view that a person was intoxicated. What does this bill propose to do? It ignores all of the learning, sweeps aside all of the case law and longstanding theory about what should be persuasive evidence to prove intoxication and seeks simply to say that for the purposes of an aggravated intoxication offence a person is intoxicated if:
- (a) an offender is intoxicated if the offender’s speech, balance, co-ordination or behaviour is noticeably affected as the result of the consumption or taking of alcohol or a narcotic drug (or of any other intoxicating substance in conjunction with alcohol or a narcotic drug), or if the offender has 0.15 or more grams of alcohol in the offender’s breath or blood.
The bill provides that that definition of intoxicated will apply to the one-punch laws and the other proposed mandatory sentences. Upon effectively a casual observation a person could face a mandatory sentence of three, four, five or eight years in jail. That kind of proactive approach to the admission of lay evidence, without any constraints, risks substantial injustice in the criminal justice system. That approach can lead to the prosecution proving intoxication on the basis of what may be a casual observation or a partial observation late at night in a poorly lit area in circumstances where the person’s speech or gait may be explained by tiredness or other environmental factors. The thought that a person’s speech, gait, coordination or behaviour will be sufficient to prove intoxication and therefore see the person face a mandatory sentence is a recipe for injustice in our courts.
A person may not have taken their medication, may have taken too much of their medication or may have taken the prescribed quantity of their medication and a small quantity of alcohol. In any of those circumstances, their speech, gait, balance, coordination and behaviour may appear as intoxication to a layperson. The person may be extremely tired on the street late at night. Their speech may be slightly slurred and their balance, coordination and behaviour may be not dissimilar to that of an intoxicated person. To allow the admission of that evidence without the constraints that apply under the current case law is a recipe for substantial injustice.
We know that other reforms this Government has pushed through this House have given enormous discretionary powers to police. An example is the consorting laws. Those laws were put before this House because it was said that police needed new discretionary powers to break up bikie gangs. The whole argument about the consorting laws was, “Don’t you worry. Trust the police. They won’t misuse these powers; they will use them to break up bikie gangs.” The House was told time and again not to worry about it. When The Greens raised concerns that the consorting law provisions would be used to disproportionally and unfairly target Aboriginal community members and other marginal community members we were told we were scaremongering.
Just before Christmas last year the Ombudsman released a discussion paper on the consorting laws. In parts of regional and rural New South Wales 85 per cent of the directions under the new consorting laws have been issued against Aboriginal community members; not one of them was a bikie gang member. Across the State, 40 per cent of the directions under the new consorting laws have been issued against Aboriginal community members, not bikie gang members. Handing these kinds of broad, discretionary powers to the police and saying people should not worry because we can expect the police to exercise their discretion and use their powers in a way that protects vulnerable members of the community has been a proven failure. We should not be putting these new laws in place and giving extraordinary powers to the police to give evidence to prove intoxication when it will lead to consequences as dramatic and drastic as those proposed in this bill. I commend the amendments to the Committee.