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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (APPEALS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 February 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:51): In resuming the debates on the Statutes Amendment (Appeals) Bill 2012, there are several principal aspects of the reform that are the subject of this bill. The first is the appeal against conviction. Currently, under our criminal law, the principle of finality means that defendants have only one right of appeal against convictions. The grounds of appeal are limited by statute and of course do not reconsider evidence already adduced at the trial.

That really means that, when people have been charged, if they are acquitted they can head off. If they are found guilty, they can have one chop at the cherry to get it right and through the appeal process, but they cannot just keep going back over and over again. The world has changed, and we accept that, and also that, particularly because of the advance of technology and evidence that assists our forensic experts, it is important that we keep our mind open as to whether this is the sensible way to continue. The Legislative Review Committee made a number of recommendations, including that our Criminal Law Consolidation Act:

...be amended to provide that a person may be allowed at any time to appeal against a conviction for serious offences if the court is satisfied that: 1. the conviction is tainted; or 2. where there is fresh and compelling evidence in relation to the offence which may cast reasonable doubt on the guilt of the convicted person.

This bill does enable that recommendation to be incorporated, except that the government has decided that it does not need to relate to a tainted conviction, and it can be available to all offences, not just serious ones. Perhaps that opens it up to a much broader area, but, in any event, that is the approach that they have taken.

The fresh and compelling components come to light after other rights of appeal have been exhausted. As in appeals by prosecution against acquittals for serious offences, the bill requires that evidence, if it is to be fresh, must be evidence that 'must not have been adduced at the trial and could not have been adduced at the trial, even with the exercise of reasonable diligence', and compelling, that being that 'evidence must be reliable, substantial and highly probative in the context of the issues in dispute at the trial of the offence'.

I do not want to blur the arguments for the importance of this type of reform by referring to a case that is controversial, and that is the conviction of Henry Keogh in respect of the murder of his fiancée some years ago. It is a well known case in South Australia. I mention it because it is probably the aspects in respect of forensic and expert evidence in that case that one does need to reconsider whether this whole approach is meritorious, and that is not in any way to reflect on whether I have any personal view as to the guilt or innocence of Mr Keogh.

As often occurs in cases, irrespective of that ultimate question, sometimes very important cases do throw light on deficiencies in our system and for that reason need to be reviewed alone. The law society generally is supportive of the intention behind the amendments in respect of appeals against conviction; however they take issue with the requirement that the defence must establish that a substantial miscarriage of justice occurred, rather than simply a miscarriage of justice. They argue that, by adding in the word 'substantial', this can create confusion and ambiguity as it introduces different criteria.

I think it is fair to say every time we in this place change a phrase or introduce a new word, it can create legal chaos at the other end, because we do heavily rely in the application of our laws on there being some consistency in interpretation and the development of a body of law, called common law, which supports and continues to reinforce the interpretation or definition of a certain word or phrase. Sometimes that changes over time; words acquire new meanings or multiple meanings or become confusing in their common usage and therefore they attract arguments for change or expansion. But what truly confuses that whole process is when we add in an extra word to a phrase which has been in an established body of law.

So we may not think it very important here in this house that we add in words and therefore make them inconsistent with the use of that phrase or the interpretation of that phrase where it may appear in another area of law but, believe me, it can cause significant problems. So we try as much as possible to keep consistency, say, within the realms of the criminal law and what rules are going to apply. In this instance, we are talking about appeals and in what circumstances we counter the finality principle and introduce the new rules.

The society has a point, and I think we would be asking from this side of the house that the Attorney be aware of that, and we may need to look at some review of it. On the cross appeals issue; this is the situation where the bill is to provide for the prosecution to have a right to cross appeal in the context of a defence appeal without the need to seek leave of the court. The government claims that it would provide greater parity between the parties and discourage defendants from lodging unmeritorious appeals.

I just want to remind members of the house that there is an old adage: better that a guilty person go free than an innocent person be hanged. It identifies the importance of having some fairness in our appeal processes. There was a time (and I cannot recall when this changed) that when a sentence was passed on a convicted defendant he or she may have had the right of appeal in certain circumstances but the prosecution did not; they were not even able to. They might think that it is the most pathetic sentence, or that it is manifestly inadequate, and all those things, in their view, but there was no entitlement for them to complain to a superior court.

That has been changed, and it recognises that the public expects that if you are going to have an appeal process there will be some parity of access to that and some recognition of the importance of both sides being able to have a review of what may have been a manifestly inadequate or excessive sentence, by way of example. We come from a situation now where the government is saying it will introduce parity and try to somehow or another discourage defendants from lodging unmeritorious appeals.

Appealing is an expensive process. It is not a situation where people just line up and lodge a one-page document to say they want to appeal because they did not like a decision. This is an expensive exercise. There is not only the cost of a transcript, but obviously there is the preparation of appeals, the lawyers and the reappearances even to apply often to have the right to appeal granted. Certainly, if one goes to superior courts such as the High Court there are a lot of barriers in being able to get in the door, and it is a very expensive process. I suggest that it is a very substantial financial impediment for those who have the means to go down that road in any event.

Many would argue inaccessibility of the law, that it is only the very rich and the very poor who can afford to do these things. Then I go to the other group in this category and those who have been the recipients of legal aid and are eligible for that. They have to be able to satisfy the Legal Services Commission that their appeal is meritorious if they are going to be granted support to go that far. I would have to say that the risk of there being unmeritorious—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: The Attorney interrupts to remind me that some other organisations do not have a merit test. If he is referring to the Aboriginal Legal Rights Movement (it has a new name, I think; the Attorney may have changed the name, but I think they just changed the claims section division), certainly, historically, it did not have a means test for applicants, and whether or not there is any merit test, I do not know.

Even if there is not, in the sense that anyone can line up and say they want to appeal and therefore have some expectation, unless things have changed very substantially the ALRM has a limited budget. They regularly run out of it by about March or April every year, and they sometimes have to send their prospective clients off to other services such as the Legal Services Commission to get representation.

It may be that the ALRM has a practice of simply taking applications as they come in and in some way is under some obligation to take up unmeritorious cases; if that is the case, it seems to me that is a matter that is a decision of the ALRM with or without the assistance of guidelines from the Attorney as to—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: They are a federal creature, the Attorney says. I am sure the new federal Attorney could take that up with them if he felt that across Australia there was some wasteful application of funds towards priority of projects which are less meritorious than those whom they are really there to represent. I just think there are other ways to deal with that rather than to try to use this type of approach to deal with that.

The third and other substantial area of the bill is in respect of Full Court benches. Quite simply, as members may be aware, there are different appeals from one court to another. Sometimes if there is an appeal from the Magistrates Court, it goes to just one judge in a higher court; sometimes it goes to an appeal panel which may comprise three judges. Sometimes when we get to some other higher courts, you can have half a dozen of them or more sitting across the bench, especially when you get to the High Court. For different reasons, there are different groupings of numbers that comprise the Full Court bench.

This is a bill to enable the Chief Justice of the Supreme Court to constitute the Court of Criminal Appeal by a bench of two judges rather than three for appeals against sentence and conviction. It is intended that this discretion would only be used in matters not expected to be contentious. A similar model is used in Victoria and New South Wales, and the Chief Justice has apparently sought this change.

The bill would allow the Supreme Court to eliminate a step from the criminal appeal process. Currently the appellant must convince a single judge that their case has merit. If successful, the appellant then argues their case before the Court of Criminal Appeal—so, that is three judges. The bill would allow the process to happen in a single hearing before two judges who have the power to make a final determination of the case. The current Chief Justice, His Honour Chris Kourakis, was quoted in The Advertiser as supporting the bill as follows:

[the Bill provides the Court with] a simple tool that would give the courts an extra bit of useful flexibility...It will save time and expense for the Director of Public Prosecutions, the accused person and Legal Aid. [Further it] also saves the resources of the court because I won't have to sit as many judges for an appeal...Appeals were consuming more of the court's time [and] should be able to be dealt with in an hour or two, but they were taking quite a bit longer, leaving fewer judges for criminal trials and civil cases and that needed to be tackled in some way.

Mr Kourakis was reported not to foresee problems with the proposed change. He said:

If the two judges were divided, they could still refer [the appeal] on for three judges to hear it.

The Law Society has looked at this matter and has raised some concerns. The Law Society highlighted that the Criminal Appeal Act only allows the Court of Criminal Appeal to be constituted by two judges to hear sentencing appeals and only when the Chief Justice is satisfied that the appeal is unlikely to require an issue of general principle to be resolved.

The New South Wales Criminal Appeal Act prescribes what happens when the two judges are divided in opinion. The amendment is silent on these matters. The society submits that the amendment should mirror section 6AA of the Criminal Appeal Act so that these issues are dealt with in legislation as confined to appeals against sentence.

There are some other matters that have been raised, claiming that there is a conflict with section 349 of the Criminal Law Consolidation Act 1935 by this provision. The society submits that due to the seriousness of conviction appeals they warrant always being heard by a Court of Criminal Appeal being constituted by three judges.

I do not have any data that I have reviewed in recent times as to the number of appeals that would be affected by this legislation, whether it is for either or both conviction or sentence. If that were to come in as proposed or if would just be for sentences, I am uncertain as to what the current percentage of the workloads of full courts are in respect of criminal matters and/or the division between sentence or conviction or, indeed, both.

Essentially, if this matter is before us and it has been presented as some cost saving and it seems that the Chief Justice is understanding of that in the sense that he wants to be able to apply his judges to other tasks to be undertaken rather than having them languishing on full court matters, then that is something that we need to take into account. It should not be the driving determinant because, after all, we are dealing with people's lives and their liberty and we need to make sure that we always have this right.

I was only saying this week that the extraordinary thing about the amount of time that we spend on amendments to criminal laws and, in this instance, the processes that go with them—in particular, appeals—is quite disproportionate to the amount of people who are actually affected in a direct manner. I would assess that we probably spend over 90 per cent of our legislative week in this place dealing with legislation relating to reform of laws in those areas.

Certainly, this week, except for some time we spent on wilderness this afternoon, has been almost exclusively spent on these matters; and yet, thankfully, in the community, the people who might ever have to tiptoe through these pieces of legislation are a very, very small minority. Fortunately, most people are law-abiding citizens who, in their lifetime, may come up against some summary offences or traffic behaviour that has caused a problem.

Most of us, most of the time, are well-behaved and we do not ever come across the hard hand of the law but, if we do, then we need to know that we are going to get a fair hearing, we are going to have laws that will adequately protect us and, if the courts, as they do—judges are human—get it wrong, then we have got a proper appeal process that can review that and ensure that, as much as possible, people get a fair trial and we have the ultimate effect of catching the bad people and ensuring that we do not punish the innocent.

I will just make one other comment in relation to the quashing of convictions. The bill introduces a proposal to enable the Attorney-General to refer a matter to the court and allow the court, if it thinks fit, to quash a conviction where the Governor has granted pardon for a conviction. That is to deal with some age-old processes that we have dealt with in those processes, so I do not have any further comment to make about that. I understand that the Attorney has some amendments to the appeals bill, which are to accommodate some of the concerns raised by the Law Society and maybe others.

The Hon. J.R. Rau: Chief Justice.

Ms CHAPMAN: Chief Justice. He has obviously reviewed that and has recommended some ways forward. It is fair to say that the opposition always appreciates and is respectful of the advice that is given by either the SA Bar Association—which, for the record, I am a member of—or the Law Society of South Australia. They spend an extraordinary amount of time doing research and identifying areas of weakness to assist us in making sure that we make the most just and equitable laws.

I appreciate them doing that but we, in the opposition, do not, obviously, always accept wholesale their recommendations—the Attorney does not either, I respect that—but we do value their advice. It has certainly been very helpful with this bill. Similarly, on matters which directly affect the operation of the courts, the advice of the Chief Justice is invaluable, and I thank him for allocating his time and wise counsel in that regard. We will review these amendments between the houses, but they appeared to be consistent with some of the areas that we were looking at. I thank the Attorney for bringing them to our attention.

The Hon. R.B. SUCH (Fisher) (15:15): I will just make a short contribution. I think this bill is a good bill in that, as the member for Bragg said, and as I am sure the Attorney acknowledges, no system is perfect. When you have humans involved, it is not always going to be perfect, and things can go belly-up, to use a basic expression, even with the best intentions and when people are trying to do their best, whether in a court system or elsewhere.

I will just share a few thoughts, and some of the things I have observed and learned, having gone through the process, while not at a level of serious criminality. Others may disagree, but I came to a conclusion at the end of my experience with the courts that the Magistrates Court is the most important court because, if it does not get past first base, it does not usually get anywhere. That is lesson No. 1: the Magistrates Court is very important.

The other thing is that, if you are represented by a lawyer, you are effectively in the hands of the lawyer, who may or may not do what you would hope or want, but if you do not have a lawyer, you also take a big risk—in most cases, I think you probably take a bigger risk—so it is a choice: the devil or the deep blue sea.

I also found that in a traffic matter, which starts out as a criminal matter (which traffic matters are) when you appeal it to the Supreme Court, the fee structure changes because it then becomes a civil matter. You go from an appeal in the Supreme Court; I do not know what the fee is now—these are approximations, as I am just going on my recollection—but I think if you appeal and it is a criminal matter, it is around $190, although that has probably gone up with CPI or something else.

If you appeal and it becomes a civil matter, as a traffic expiation matter does, then it is around $1,900. There is a little bit of a difference there. I would just like to point that out. The whole process is costly anyway, and it seemed rather incongruous to me that, when it changes from a criminal matter to a civil matter, the fees suddenly escalate dramatically.

The other lesson I observed was that an appeal court, in effect, can only consider what is appealed. That was another lesson I learnt, at great expense and to my detriment, if the lawyer does not appeal on every possible ground. I have now been told by people who are very experienced in the law that if you are going to appeal, you appeal on every ground under the sun so that everything can be considered, because no appeal court is going to go on an expedition looking for work, or looking to consider something that has not been put to them.

You are in the hands of a lawyer if you are represented, or your own (probably inadequate) judgement if you are not. That particularly hit home for me in the Supreme Court, where His Honour Timothy Anderson said—and I am paraphrasing—'Look, you can have another trial,' and my lawyer sat there and said nothing.

I had been told that if you are sitting in the court, you cannot jump up and say, 'Your Honour, I was disadvantaged because the first lawyer I had withheld critical material until after the Magistrates Court hearing and suddenly, after the Magistrates Court hearing, cartographic evidence, the aerial photographs, and all the detailed material was produced.' That was not produced until after the Magistrates Court because the first lawyer became ill.

We understood, and he was asked to provide it to the second lawyer; that did not happen but in any event the second lawyer was told about that. When His Honour Justice Anderson said, 'It's possible to have another trial,' the lawyer sat there. I am sure that if the lawyer had said, 'Your Honour, my client was disadvantaged because critical evidence was withheld in the Magistrates Court,' he would have said, 'Well, look, I am prepared to order another trial.'

The other mistake I made was that the lawyer who represented me in the Magistrates Court said, 'Look, I don't normally do Supreme Court appeals, but I can do it at a special rate for you'. That was another mistake, and being naive about these matters I thought, 'That's fine, he'll be okay'. I learned later that if you are going to have an appeal you need to get people who specialise in appeals because you can appeal on a ground, as happened in my case, which is not part of the law.

The judge ruled that what my lawyer was arguing—that the police did not follow Australian standards—was not in the Road Traffic Act, and they do not have to. They do not even have to obey the commissioner's instructions. So, you are shot down again. When we appealed to the Full Court, and I had a QC doing it pro bono and a former police forensic scientist, the Full Court said, 'Oh, look, the magistrate has looked at this. We're not looking at it,' so you are out the door and, in effect, left high and dry. As I said earlier, the courts do not go looking for things to consider in an appeal; it is only on what is raised.

Evidence put to the Full Court included things like the certificate of accuracy for the police laser which had been whited out and altered with a biro, and that was accepted in the Magistrates Court. Being naive, I thought in an appeal court a judge would say, 'This is not acceptable to have a government document that has been whited out, altered with a biro and the wording changed,' but that was accepted in the Magistrates Court. In the end, that was what got me hung because the Road Traffic Act states, 'If there is a certificate that purports to be,' blah, blah, blah, then that is the situation.

The other issue, just to come to a conclusion, is that, given that the magistrate said, 'Look, you have an exemplary driving record, you have never had a speeding infringement of any kind in nearly 45 years of driving, never had an accident, but you still get a conviction,' being naive, I thought that a lawyer would say, 'Your Honour, irrespective of whether or not you agree that he was travelling at 69 km/h, I don't think he deserves a conviction,' but the way it went through the appeal system was that I still ended up with a conviction.

I think the lesson to me, and to others, and you can only really come to grips with this if you have experienced it firsthand, is that the system—and I know that this bill is dealing with more serious matters than mine, but even at my minor level I was appalled at a process—can leave you high and dry at great expense and you still cannot get justice through the system. I can imagine how with a more complicated, higher level of criminality, people could end up with an outcome which is unfair and unjust.

As I say, my case is nowhere near the level of what is likely to be dealt with here, but I think it is important that we have a review process. I know that the government, and I think most members, did not support a criminal cases review commission, and I think for good reason. However, I think modifying the appeal system as reflected in this bill is a very good and progressive measure because anyone who gave some thought to it would realise that the system is not perfect and never will be perfect.

I think, particularly in a criminal matter, for someone to be sentenced or convicted for something they did not do—and I am sure from time to time, there have been many cases like that—is one of the most appalling things to happen. I think it is worth getting the system right, so that it is fair. I know it is a system of rules. It is not a system of justice, but I think as far as possible it should be a system that results in the guilty being found guilty and the innocent not being falsely and wrongly convicted.

Mr PEGLER (Mount Gambier) (16:25): I rise to support the improvements to the rights to appeal bill. I have always felt that there should be a process in place where, when there is new evidence or fresh evidence, people should have the right to appeal and, if that appeal is upheld, they should receive a full pardon and their conviction should be quashed. I also agree with the proposal in the bill that if somebody does appeal, the prosecution also has the right to appeal.

Too often, people will just try to appeal knowing that there will be no repercussions and they will take up valuable time, whereas this way they will have to think very seriously and, of course, if the prosecution has new and compelling evidence, they will be able to present the evidence and justice will be seen to be done for all concerned. I also support the process of going back from three judges to two judges. It appears to work in other states and I would certainly support that in this state. I will be supporting this bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:26): I thank all of the contributors. I thank in particular the honourable member for Mount Gambier for those encouraging words of support.

The Hon. R.B. Such interjecting:

The Hon. J.R. RAU: And, of course, the member for Fisher. As is often the case, I am still not exactly sure where the opposition is landing on this one. They raise a lot of questions but do not actually say they are with us or agin us but anyway, no doubt, in the fullness of time, when it gets into another place, the situation will be revealed.

I just want to say a few things here. First of all, yes, we are moving some amendments in the house in a moment when we go into committee. Those amendments are matters that were drawn to my attention by His Honour the Chief Justice after the original bill had been drafted. I am happy to accommodate the Chief Justice's concerns, so in a moment, just to save time, I will talk about what those amendments are and what they are designed to do. However, I just want to make a couple of general observations about this.

First, the Law Society. I am an ex-officio member of the Law Society. I am ex officio because, once I became a minister, I was no longer eligible to be a member of the Law Society, or the Bar Association for that matter. They both booted me out, member for Bragg; both of them kicked me out. They said I was no longer eligible which, given how long I had been a member of both organisations, I found rather distressing, but never mind. However, every cloud has a silver lining because, even though the Law Society had booted me out—and I am not being nasty about that, by the way; I should not use the word 'booted'—even though they advised me that I was no longer within the eligibility criteria, as luck would have it the Legal Practitioners Act says that I am still an ex-officio member of the council of the Law Society, so I get back in through the back door anyway.

The other exciting thing that I drew to the attention of the Law Society was that, many years ago I stood for a position as a member of the executive of the Law Society. They used to have this system where they did not just have a secret ballot; they did not even tell you what the result was. All I got as a candidate was, 'Yes, we acknowledge you're a candidate,' and then I got a letter back saying, 'Sorry, you didn't win.'

I wrote back saying, 'I can cop that, but was I within cooee of the result?' Eventually there was this battle that took place within the Law Society and eventually what they said was, 'But what if somebody has run and they got a terrible vote, won't they be embarrassed if we say they only got 40 votes?' I said, 'Well, if they are too precious to have that exposed in the Law Society bulletin as a general report to members after an election, God help us, they should not be sticking their name out.' Anyway, I am happy to say a reform did occur, which was that, when there was a ballot in the Law Society, the actual number—

The Hon. J.D. Hill: How many votes did you get?

The Hon. J.R. RAU: I think I got about 500 and something or—

Ms Chapman: No, 50,000.

The Hon. J.R. RAU: Anyway, I'm sure if the honourable member for Bragg had run, she would have beaten me.

Ms Chapman: I probably voted for you.

The Hon. J.R. RAU: She may have voted for me; who knows? I got reasonably close, but they wound up publishing it in the bulletin anyway, saying 'X-thousand ballots cast; the ballots were cast as follows', which all of us would find completely unremarkable, but the Law Society at the time found that shocking. I think since that time they have gone back to their old practice.

Anyway, there is a purpose for me telling you this, Mr Deputy Speaker, because I wanted to be on the Law Society Council, and for 20 years I thought, 'How am I ever going to get on the Law Society Council?' Then I worked it out: if I could somehow manage to become Attorney-General, by reason of statute, I would be on the Law Society Council, and so here I am. So I finally got there after all this time.

That was a little historical thing. Anyway, the Law Society is an august body, a good body, but sometimes it is a body which has a view which is reflective of its membership rather than reflective of a totally objective point of view. Whilst I always listen to the Law Society and I always respect what they have to say and they have been of great assistance to me on many occasions, they are not always right.

The letter that I have a copy of, dated 31 January, from which I believe the deputy leader was drawing some inspiration during her contribution, is, like many other letters that come from the Law Society, informed by those who wrote it. My gut feeling is that this would have been written by a mob called the Criminal Law Committee.

Ms Chapman: A mob?

The Hon. J.R. RAU: Sorry; an august group. I beg your pardon, they are not a mob. They are an august group called the Criminal Law Committee. Members of parliament may or may not know—I know the deputy knows—that, almost to a person, they are members of the criminal bar. The criminal bar, generally speaking, though not always, derives a substantial amount of its work from defence work, because basically the prosecutors are in the DPP and so they are basically criminal defence lawyers.

By reason of being criminal defence lawyers, either they are getting paid by private people who are charged with criminal offences, or they are getting your money from the Legal Services Commission. The reason I am giving that slight explanation to everybody is, when you read this, understand who has written it. These are people whose job it is to defend people charged with criminal offences. These are not people who are trying those cases and they are certainly not prosecutors.

So, one would reasonably expect there to be some bias towards the criminal bar's point of view in this document, as indeed there is. It does not mean it is a silly document. It means one needs to read it with one's eyes open. The remarks about 'substantial', to which the deputy leader referred, are a perhaps useful illustration of the point I am trying to make. I am advised that the phrase 'substantial', qualifying a miscarriage of justice, has been part of the proviso since 1899. That's not 1999—1899.

So, the suggestion in here that that is something a little bit weird or strange, I am advised, just does not stack up. There is endless law, culminating, I understand, in the case—which I am sure the deputy has read—of the High Court decision in Weiss, which goes into some detail in explaining this. So, that is, with respect to the Law Society, a bit of a furphy.

Whilst we are on the Law Society, can I by way of illustration also say: their contributions are always valuable, but one has to look behind the paper and ask where it has come from. I was not aware of this when we were debating the other day about the small venues legislation, but I believe the deputy was in possession of a letter from the Law Society, which I have since seen.

That letter from the Law Society, which purported to express an opinion on behalf of the legal profession, was written by a person who, to be the best of my knowledge, since he was in his early 20s has worked in one law firm, and in that law firm he has had one job. That job has been to represent members of the AHA in respect of liquor licensing applications. So, whilst that does not mean he is a bad person and it does not mean he is ignorant of the law, it would have perhaps been useful to have a clear caveat in this thing, as Alan Jones does when he says, 'Everyone, please have a glass of Milo; by the way, I am sponsored by Milo.' We did not get any of that, nothing. It appeared to be a completely objective contribution from the Law Society, which it is not.

Ms Chapman interjecting:

The Hon. J.R. RAU: Anyway, I am just saying that the Law Society is very helpful, but one needs to be careful with what one does with what they offer. In the end, can I say to the deputy leader: here is the choice. We have a series of propositions which I can assure the deputy leader and all members of this house have been approved after serious reflection by the Chief Justice of South Australia. He has discussed these matters with other judges on his court, and he is satisfied that these changes are both effective and appropriate and reasonable. I have discussed this with the Director of Public Prosecutions and, through my staff and advisers, he has also advised me that these are acceptable measures.

All I would say to the deputy leader and other people is: if you have the Director of Public Prosecutions and the Chief Justice of South Australia saying, 'Please do this for us,' and the only people who do not want it are the criminal law group within the Law Society, I think the trump cards are being held by the first two people, not the last one. If I had to say in case of difference where do you go, I go with the Chief Justice and the Director of Public Prosecutions; that is where I go without in any way being disrespectful of the comments they have made.

With those few words, I will explain what the further amendments are that we are seeking to move. The Chief Justice has raised two incidental issues which we intend to move amendments in order to accommodate. The amendments also resolve an issue that has been identified with the court's efficiency reforms passed last year. The first one is an amendment to section 353—Determination of appeals in ordinary cases. It involves deleting subparagraph (a) and substituting:

(aa) it may revoke any permission to appeal granted by the court of trial;

(a) it may confirm, vary or reverse the decision subject to the appeal.

I am advised that the Chief Justice has suggested that these amendments should be made to allow the Full Court to revoke a grant of permission to appeal given at a pre-trial stage. When a trial judge makes a decision on an issue antecedent to the trial, section 352(1)(c) of the Criminal Law Consolidation Act enables a defendant to appeal against the decision before the trial starts, but only with the permission of the trial judge.

If permission is granted, the Full Court must hear the appeal. This amendment gives the Full Court the ability to refuse to hear the appeal and send the matter back to the trial judge for trial to continue in the ordinary way in situations where the Full Court believes that it is not appropriate for the trial to be held up.

This amendment will promote the expeditious hearing of criminal proceedings and discourage pre-trial satellite litigation. I had not heard of that, but apparently that is the in terminology, I believe. It will not affect a defendant's right to appeal a conviction in the normal way if that is the outcome of the trial. That is the first one.

The second one is the repeal of section 367. This amendment is apparently consequential to amendment No. 5 five. Appeals under section 352 of the CLCA against sentences imposed in the District and Supreme courts lie to the Full Court by permission. The current section 367 enables the power of the Full Court to be exercised by a single judge.

Ms Chapman interjecting:

The Hon. J.R. RAU: I am not saying they are wrong, and the Chief Justice loves all this too. If the single judge refuses permission, the application may be renewed to the Full Court. Amendment No. 5 amends the Supreme Court Act to allow a single judge to exercise the powers of the Full Court of the Supreme Court in relation to not only appeals against sentences imposed in the District or Supreme Court, but it also extends the power to include those appeals from major indictable offences in relation to which a sentence was imposed in the Magistrate's Court. As amendment No. 5 is of general application, section 367 of the act will have no work to do. This amendment was requested by the Chief Justice, and we put it up.

The next one is amendment to section 42. This amendment has two parts. New clause 7A(1) clarifies the operation of section 26 of the Statutes Amendment (Court Efficiency) Act. Section 26 states that the appeal right for a defendant who is sentenced for a major indictable offence in the Magistrate's Court will lie to the Full Court of the Supreme Court. This amendment clarifies that appeal lies to the Full Court not just in relation to the sentence imposed for the major indictable offence but also in relation to the sentence, or part of the sentence imposed for any other offence, or offences for which the defendant was sentenced.

The example is a person charged with multiple things: one of them is a major indictable offence dealt with in the Magistrate's Court. Appeal lies up to the Supreme Court about that, but the multiple other offences are dealt with in different appeals streams—obviously silly; they should all travel together, which is what this proposal seeks to do.

So, this proposal provides for the Chief Justice to have the discretion to convene a court of criminal appeal with two rather than three judges. The new clause also provides the chief justice with this discretion in relation to appeals from sentences imposed in the Magistrate's Court, which include sentencing of major indictable offences—so, there we are. All of these are actually common-sense matters and will enable the court to be more flexible and nimble in its treatment of matters.

The next amendment is consequential on amendment No. 4; I will not go into it in any depth. The next one is an amendment to section 48 dealing with the full jurisdiction of the court. This amendment inserts a general provision to the Supreme Court Act to allow a single judge to exercise the powers of the Full Court, in certain limited circumstances as previously discussed.

So, Mr Deputy Speaker, that is a brief summary of the position. I do hope that the opposition ultimately will be persuaded to support the bill as amended in its current form. The situation with respect to the word 'substantial' I think I have said something about and that can be considered, or not, as the case might be.

In terms of the business about the case review process, I think it is very important—I probably did say this before, but I will say it again—to bear in mind that the present process for people who have been convicted and exhausted their repeal rights is very, very mysterious. It is mysterious because what happens is that they are languishing in gaol, they have no right of appeal. What they do is write to the Governor and they say, 'Governor, please let me out, I'm a good person.' The Governor then seeks advice from the Solicitor-General, who has to read a lot of material and form an opinion and inform the Governor, and then ultimately the Governor makes a decision.

None of that process occurs in any way in a public forum. It is all happening behind closed doors, as it must because it involves the Governor. However, what we are doing here is bringing that to a public forum, which is a court. So, anybody who believes they have one of these cases is able to appeal, take the matter to a court in a public forum and say whatever they want to say in public, hear whatever anyone else wants to say about it in public, and we have that marvellous disinfectant of sunshine just covering the whole circumstance—magnificent. I am starting to feel quite warm about it right now. I commend the bill, as amended, to everybody, and I believe we will move swiftly through the committee stage of the bill.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 4 passed.

New clause 4A.

The Hon. J.R. RAU: I move:

Page 3, after line 5—After clause 4 insert:

4A—Amendment of section 353—Determination of appeals in ordinary cases

Section 353(3a)(a)—delete paragraph (a) and substitute:

(aa) it may revoke any permission to appeal granted by the court of trial;

(a) it may confirm, vary or reverse the decision subject to the appeal;

New clause inserted.

Clauses 5 and 6 passed.

New clause 6A.

The Hon. J.R. RAU: I move:

Page 4, after line 5—After clause 6 insert:

6A—Repeal of section 367

Section 367—delete the section

New clause inserted.

Clause 7 passed.

New clause 7A.

The Hon. J.R. RAU: I move:

Page 4, after line 12—Before clause 8 insert:

7A—Amendment of section 42—Appeals

(1) Section 42(2)(ab)—after 'person of' insert:

an offence that is, or offences that include,

(2) Section 42—after subsection (2) insert:

(2a) The Chief Justice may determine that the Full Court is to be constituted of only 2 judges for the purposes of hearing and determining an appeal to the Full Court of a kind referred to in subsection (2)(ab).

New clause inserted.

Clause 8 passed.

Clause 9.

The Hon. J.R. RAU: I move:

Page 5, line 18 [clause 9, inserted paragraph (b)(ii)]—After 'Criminal Law Consolidation Act 1935' insert:

or section 42(2a) of the Magistrates Court Act 1991

Amendment carried; clause passed.

New clause 10.

The Hon. J.R. RAU: I move:

Page 5, after line 18—After clause 9 insert:

10—Amendment of section 48—Jurisdiction of Full Court, single judge and master

Section 48—after subsection (2) insert:

(3) Subject to subsection (4) and to the rules of court, where any Act provides that 1 or more of the following powers relating to appeals are exercisable by the Full Court, the power may, instead, be exercised by any judge of the Supreme Court in the same manner as the Full Court and subject to the same provisions:

(a) the power to give permission to appeal;

(b) the power to extend the time within which notice of appeal, or of an application for permission to appeal, may be given;

(c) the power to allow the appellant to be present at any proceedings in cases where he or she is not entitled to be present without permission;

(d) the power to admit an appellant to bail and to direct that time spent in custody by an appellant pending determination of an appeal be counted as part of a term of imprisonment.

(4) If a judge refuses an application by an appellant to exercise any power of a kind referred to in subsection (3) in his or her favour, the appellant is entitled to have the application determined by the Full Court.

New clause inserted.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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