JUSTICE LEGISLATION AMENDMENT (CRIMINAL APPEALS) BILL 2019
Mr KENNEDY (Hawthorn) (16:40:02): I would like to begin my remarks with some reference to general issues of law and order. I go back to my own election campaign in October 2018. In Hawthorn West, outside a number of shops, there was another candidate for Hawthorn who was also conducting an appeal and visiting each of the shops. However, this person was accompanied by someone from a victims of crime group. He introduced me to this person, who told me a story of his daughter who had been abused and attacked. He was in tears as he was telling the story because he was concerned and upset by the fact that the person who did this and who was found guilty received only a small sentence. I think it was only something like six months or a year. At the time I thought to myself that it was a bit of a poor show for this other candidate to be having this member of the victims of crimes group visiting the shops to appeal to them to vote for a different political party. But I did think later on how difficult it is for magistrates and for judges and people in that sort of situation to come up with appropriate sentences. I did not know much about the legal system before I came into this place, but I do know that there are many times where a lot of money has had to be spent on legal proceedings and you wonder whether or not the system is just a bit inefficient and needs improvement so that there is less need for that sort of expenditure. I am delighted to have the opportunity to speak here, because what we have are various sanctions to improve the efficiency and the overall effectiveness of the legal system. I think anybody reading through this bill will say, ‘Yes, that would certainly make things more efficient and fairer’. I am aware, as the member for Shepparton said earlier today, of the pressure on magistrates. I have a daughter who is a police officer. She trained originally as a lawyer—she did an arts and law degree—and then joined the police force and now has some involvement in prosecution. She was just saying informally that there is enormous pressure on magistrates in terms of the day to day and in terms of fairness and of consistency, so anything that can lift that situation I am sure would be welcomed. I want to say just a few words on the Children’s Court. The member for Shepparton was talking about that and the situation that exists in Shepparton and the new arrangements that have been made in recent times for the proper conduct of appeals and so on. As well as abolishing de novo appeals from summary criminal matters, we are also introducing the reform to abolish de novo appeals from final orders made by the family division of the Children’s Court. These are reforms that are supported by the Children’s Court and the Department of Health and Human Services because they will spare children months of uncertainty and instability waiting for a full rehearing of the case. Stabilising the circumstances for a child in these cases, which involves things like protection orders, therapeutic treatment orders and permanent care orders, is in the child’s best interests, and that needs to be paramount. However, safeguards against errors are preserved. Appeal to the Supreme Court on a question of law will still be possible, and the bill does not change appeals from interim orders of the family division. The bill also does not prevent the Secretary to the Department of Health and Human Services from applying to vary orders. I will just comment also on the second or subsequent right of appeal. The introduction of a second or subsequent right of appeal is about modernising Victoria’s safeguards against wrongful conviction. While such cases are incredibly rare, sometimes new evidence is discovered that shows people have been wrongfully convicted. Those cases are currently dealt with behind closed doors through the petition for mercy process. In summary, the petition process involves a convicted person writing to the Attorney-General to present evidence. The Attorney-General seeks advice from the department of justice on the merits of the evidence and then either refers the matter to the Court of Appeal for them to hear an appeal, which might result in acquittal or a retrial being ordered, or provides advice to the Premier, who then advises the Governor to either grant mercy—pardon the person—or reduce their sentence or decline the petition. We are making the process more transparent by creating a pathway for fresh and compelling new evidence that shows a substantial miscarriage of justice to be considered by a court. The right to a second or subsequent appeal will only be available if leave is first granted by the Court of Appeal. The court can only grant leave if evidence is found to be both fresh and compelling. This is a very high statutory bar that ensures only cases which are meritorious are considered by the Court of Appeal. This test means that an offender will not simply be able to try again after failing an appeal. Fresh and compelling evidence would need to be discovered to give grounds for a further appeal. Similarly, mere technicalities will not be sufficient to show a substantial miscarriage of justice. Fresh evidence is evidence that was not presented at the time of the offence and could not, even with the exercise of reasonable diligence, have been presented at the trial of the offence. For evidence to also be compelling, it must be reliable and substantial evidence which would have eliminated or substantially weakened the prosecution case if it had been presented at trial. If leave is granted, the applicant must then prove that a substantial miscarriage of justice has occurred in their case for the court to allow the appeal. My notes go on, but I have only a short time available. A second appeal will only be available for indictable offences. Cases that meet the very high threshold are expected to be very rare: South Australia and Tasmania already have such a right of further appeal, and it has been used fewer than 10 times in South Australia since 2013 and just once in Tasmania since 2015. The reform is also currently before the Western Australian Parliament, as we have already heard. Victoria is the last jurisdiction in Australia to have de novo appeals. As well as delivering benefits for victims and system efficiencies, abolishing them is an important part of the modernisation and maturation of our system, allowing the Magistrates Court proper recognition of its important role as our high-volume court. Implementing a second or subsequent right of appeal will ensure that in the very narrow circumstances where there is fresh and compelling evidence of a substantial miscarriage of justice, these matters are dealt with transparently through the courts and in accordance with the principles of open justice. I would just like to conclude by saying that we are never going to have the final word on law and order. There is never going to be something that is seen to be 100 per cent just and fair and efficient in all possible circumstances. All we can do is to keep moving towards such an ideal, and I commend this bill as an example of where we are moving forward to make these things better for the future.