The Andrews Labor Government is improving and modernising Victoria’s appeals system, making appeal proceedings more efficient and transparent, and better supporting victims.
The Justice Legislation Amendment (Criminal Appeals) Bill 2019, introduced into Parliament today, reintroduces the Government’s commitment to abolish ‘de novo’ appeals of criminal cases to the County Court.
Currently, when a person is found guilty by the Magistrates’ or Children’s Court and appeals that conviction, the County Court must hear all evidence again and reach a new decision. Essentially, appeals are a new – or de novo – hearing.
The current system places a considerable burden on victims and witnesses, who are required to give their evidence again during appeal proceedings and consumes large amounts of County Court time and resources.
The reforms will see conviction appeals decided on transcript of evidence from the original hearing, with further evidence received only if the County Court considers it to be in the interests of justice.
Sentence appeals will also be determined on evidence and materials before the original court, and may only be allowed if the County Court finds there are substantial reasons to impose a different sentence. The magistrate’s reasons for the original sentence must be taken into account when considering the appeal.
The Bill will also include reforms to allow substantial miscarriages of justice to be dealt with more transparently, through the courts, by introducing a second or subsequent right of appeal of convictions for indictable offences, in limited circumstances.
Under existing law, if new evidence is discovered after a convicted person has exhausted their appeal rights the only avenue to have a conviction overturned is via a petition for mercy.
In that scenario the Attorney-General must decide whether to recommend the Governor pardon or remit the sentence or refer the matter to the Court of Appeal for consideration.
The creation of a second or subsequent right of appeal will allow a convicted person who has exhausted their appeal rights, to appeal again only if fresh and compelling evidence emerges that shows a substantial miscarriage of justice has occurred. This reform, which mirrors reforms already in place in Tasmania, South Australia, and under consideration in Western Australia, will ensure that second appeals are only available in exceptional circumstances, and are dealt with openly and impartially by the courts rather than behind closed doors.
As noted by Attorney-General Jill Hennessy
“For a victim, having to repeatedly provide evidence can be extremely traumatising. We are modernising the appeals system to better support victims, while also ensuring convicted people have access to justice.”
“In cases where fresh and compelling evidence of a potential substantial miscarriage of justice exists, it is appropriate that the judiciary rather than politicians consider that appeal, openly and transparently.”