EXCLUSIVE: The Advertiser: Quick action on new laws to stop trial ambushes [22jun05] By GREG KELTON
NEW laws to prevent defence teams “ambushing” prosecution cases by not disclosing expert witnesses will be rushed into State Parliament after the winter break next month.Legislation is being drafted by parliamentary counsel, even though the issue is still being investigated by the Kapunda Road Royal Commission on the Eugene McGee hit-and-run case.

One of the commission’s terms of reference is to examine changes to laws to better serve the interests of justice – a result of the defence ambushing the prosecution with last-minute expert psychiatric evidence as occurred in the McGee case. The Government’s move will ensure the defence is required to file a statement with the court in relation to any expert evidence it proposes to call. The statement should be filed and served at least 14 days before trial and contain the name and address of the witness, his or her qualifications and the substance of the evidence.

But the legislation will not contain sanctions to ensure compliance. Instead, it will offer a sentence discount in the event of co-operation, which will be up to the discretion of the sentencing judge. The legislation will be based on a report of a working group of Supreme Court justices Kevin Duggan and John Sulan, Judge Paul Rice of the District Court, former acting director of public prosecutions Wendy Abraham QC, Gordon Barrett, QC, and Attorney-General’s Department managing solicitor Matthew Goode. After Ms Abraham left the DPP, her place was taken by senior prosecutor Peter Brebner, QC.

The group was established in February last year to examine a series of changes to criminal trial procedures, including the disclosure of pre-trial evidence. The group’s report has been given to Royal Commissioner Greg James, QC, and released by Attorney-General Michael Atkinson.

On June 2, Mr James signalled he would be recommending legislative changes involving ambushing, when he announced his commission’s terms of reference had been extended to examine this problem. Mr Atkinson said yesterday he was prepared to change the proposed legislation to accommodate any changes the royal commissioner might recommend. In their report, the working group says long and complex criminal trials have increased the costs of administering the justice system “to a considerable extent” and have added to the difficulties faced by judges and juries. “There is also a need to avoid, if possible, delays during the trial arising from adjournments because of unforeseen or unexpected issues,” they say.

The working group says arguments in favour of pre-trial disclosure outweigh the arguments against it. “Expert evidence called by the defence without notice to the prosecution has the potential to cause delay in the course of the trial,” it says.