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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (APPEALS) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (17:58): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill is intended to improve the present procedure for appeals in South Australia. There has been some agitation in South Australia for a process to enable renewed appeals against conviction on the basis of fresh evidence. In August 2012 the report of the Legislative Review Committee was released The Committee's inquiry was prompted by a private member's Bill introduced by the Hon. Ann Bressington to establish a Criminal Cases Review Commission in South Australia.

The Committee looked at the many issues associated with a Criminal Cases Review Commission and made seven recommendations. It is timely, in light of the Committee's recent report, to introduce a Bill to improve the present appeal procedure for South Australian criminal cases. While I have been considering reform in this area for some months, the Committee's report has been considered in the drafting and formulation of the Bill.

The Bill introduces four new measures.

First, the Bill provides for new procedures for renewed defence appeals against conviction in the event that 'fresh' and 'compelling' evidence comes to light after the usual right of appeal has been exhausted. These new procedures will apply to convictions imposed in any court. The Bill utilises the definitions of 'fresh' and 'compelling' in Part 10 of the Criminal Law Consolidation Act 1935 for renewed prosecution appeals against an acquittal for a serious offence. These definitions should not preclude genuine applications, but a reasonably high threshold is necessary to guard against unjustifiable applications by convicted applicants. An applicant must satisfy a court that the evidence is both 'fresh' and 'compelling'.

Second, the Bill provides that a person granted a full pardon for a conviction on the basis that the evidence does not support such a conviction will be eligible to have their conviction quashed.

Third, the Bill provides that if a defendant appeals his or her sentence on the ground of error and therefore that a lower sentence should have been imposed, or alternatively on grounds that the sentence was manifestly excessive, then the prosecution will have an automatic right of cross appeal without the usual need to obtain permission to appeal. The prosecution can appeal on the basis that an error was made by the sentencing court and the sentence should be increased or on the basis that the sentence is manifestly inadequate.

Finally, the Bill provides the Chief Justice with a discretion to constitute the Full Court by a bench of two judges (rather than three) for both sentence and conviction appeals.

The Bill will allow genuine applications by convicted defendants who can adduce fresh and compelling evidence, but weighed against this is the strong public interest in finality in criminal litigation. The Bill provides a sensible and balanced approach to the competing interests in this area.

The Bill was deliberately introduced at the end of the 2012 session so that the Christmas break provided a suitable opportunity for thorough consultation to occur with all interested parties and individuals. Though I note that there was already extensive consultation on the issues involved during the Committee's deliberations and Report, any interested party or individual had ample opportunity to comment on the draft Bill. Any comment received was taken into account in considering if any changes to the Bill were necessary. Indeed, several changes to the Bill were made at Committee stage in the House of Assembly at the suggestion of the Chief Justice.

Background

The present appeal provisions in South Australia, and most of Australia, allow only one right of appeal and do not provide for a further right of appeal against conviction after that right has been exhausted, even if fresh and compelling evidence comes to light. The only avenue of redress in these circumstances is to submit a petition for mercy to the Governor. In practice, the Governor acts on the advice of the Attorney-General and the Government of the day. The practice over recent years has been that the Attorney-General seeks the advice of the Solicitor-General about the petition of mercy. The Attorney-General and Cabinet after receiving any advice from the Solicitor-General makes any decision about the appropriate advice to tender to the Governor about the petition.

The present process appears to work effectively but it is open to criticism as lacking transparency, accountability and independence. The criticisms of the present system were thoroughly ventilated before the Committee.

New Procedure in Detail

The Committee recommended that Part 11 of the Criminal Law Consolidation Act 1935 be amended to provide that a person 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 recommendation forms the basis of the new procedure for renewed defence appeals against conviction but some modifications have been made.

The Committee suggested that for consistency any new model for renewed defence appeals should follow the existing procedure in Part 10 of the Criminal Law Consolidation Act 1935 that allows the DPP to ask the Court of Criminal Appeal to order the retrial of a person previously acquitted for a serious offence if 'fresh' and 'compelling' evidence come to light that calls into question the original verdict. This procedure has not been employed in South Australia to date. The Bill as far as possible duplicates the existing procedure in Part 10 and adopts the same definitions of 'fresh' and 'compelling' evidence is fresh if it was not adduced at the original trial and it could not, even with the exercise of reasonable diligence, have been adduced at the original trial. Evidence is compelling if it is reliable, substantial and it is highly probative in the context of the issues in dispute at the original trial.

Concern was expressed that the phrase 'the issues in dispute at the trial' was too narrow and may not cover fresh evidence that would open up an entirely new and substantial line of defence that was previously not apparent at the original trial. Though it will be for the courts to apply the test for fresh and compelling evidence on a case by case basis in accordance with established rules of statutory construction and case law on point, this appears to be an unduly narrow view of the phrase 'the issues in dispute at the trial'. One would think that one issue in dispute at the trial will always be whether or not the defendant committed the alleged crime. No change to the Bill is needed in this respect.

The Bill does not make specific reference to a 'tainted' conviction as in practice this will be shown through 'fresh' and 'compelling' evidence and it appears superfluous to make specific mention of a 'tainted' conviction.

The new procedure in the Bill should not preclude or deter genuine applications from convicted defendants. There is a strong public interest in closure and the finality of criminal cases. The public interest in closure and finality is especially important for victims and next of kin as the Committee itself acknowledged. It is important to guard against the potential misuse of any new model by vexatious applicants. The spectre of endless untenable efforts to reopen old convictions should be avoided. A robust threshold is necessary to deter or deny untenable applications.

The Bill strikes a proper balance and allows genuine and meritorious applications but deters or restricts vexatious or unsupportable applications.

The new model should also be available to any convicted defendant who has exhausted their rights of appeal, regardless of the court that imposed the original conviction. The Committee suggested that the procedure should be confined to serious crimes carrying a maximum of 15 years imprisonment. It is preferable to have one similar process for any renewed appeal against conviction. Though in practice the applications that are most likely to attract public and press scrutiny are those from convictions for serious offences, there are many circumstances in which a convicted defendant may wish to challenge a conviction imposed in the Magistrates Court.

The Bill also addresses two linked issues. First, the actual procedure that should be employed to progress renewed defence appeals against conviction on the basis of 'fresh' and 'compelling' evidence, and second, confirmation that the new procedure will be retrospective in its operation.

The procedure in the Bill to determine a renewed defence appeal against conviction will depend upon the procedure that is usually employed to determine appeals from that court. If the Court of Criminal Appeal in an application in respect of a conviction at a higher court finds that the evidence is both 'fresh' and 'compelling', it will possess the usual powers set out in section 353(2) of the Criminal Law Consolidation Act 1935 on a normal appeal against conviction which will allow the court, if it allows the application, to quash the original conviction and to either direct a judgment and verdict of acquittal to be entered or to direct a new trial.

If the Supreme Court in an application in respect of a conviction at a Magistrates Court finds that the evidence is 'fresh' and 'compelling', it will possess the usual powers set out in section 42(5) of the Magistrates Court Act 1991 on an appeal against conviction which will allow the Supreme Court, if it allows the application, to confirm, vary or quash the judgement that is subject of the application or to remit the case for rehearing before the Magistrates Court.

Other Measures

The Bill also uses this opportunity to address several relatively straightforward issues regarding the appeal process, including incidental points raised by the Chief Justice after the introduction of the Bill to the House of Assembly.

The first issue is that at present if a defendant appeals his or her sentence, the prosecution has no right of cross-appeal. The defendant has 'nothing to lose' by appealing his or her sentence. The court cannot increase sentence on a defence appeal, no matter how untenable the appeal may be.

The Bill provides that if the defendant appeals his or her sentence and argues that it is manifestly excessive and/or discloses error, then the prosecution will be entitled to an automatic right of cross appeal without the usual need to obtain permission from the court. The prosecution will be able to appeal on the basis that an error was made by the sentencing court and therefore the sentence should be increased or on the basis that the sentence is manifestly inadequate. This power will apply to any defence appeal against sentence, regardless of the court that imposed the original sentence.

This change will ensure grater parity between prosecution and defence in sentence appeals. The process will send a clear message to sentenced defendants that if they seek to appeal the sentence imposed upon them, then they do so at their peril as, if the DPP decide to cross-appeal, all errors will then be up for scrutiny by the Court of Criminal Appeal.

The second issue is that at present the Court of Criminal Appeal when considering an appeal against conviction or sentence must be constituted by three judges. Though the Court of Criminal Appeal in South Australia does not have a lengthy waiting list (unlike some of its interstate counterparts), the present requirement for three judges is not always necessary or an effective use of limited judicial time and resources. There are straightforward cases where two judges would be adequate to properly consider and dispose of an appeal.

The Bill provides the Chief Justice with the discretion to convene a Court of Criminal Appeal with two rather than the usual three judges for both sentence and conviction appeals. The Bill also provides the Chief Justice with this discretion for appeals from sentences imposed in the Magistrates Court which include the sentencing of a major indictable offence. The Statutes Amendment (Court Efficiency Reforms) Act 2012 will, once brought into effect, allow the Magistrates' Court, with the consent of the parties to the proceedings, to sentence offenders charged with major indictable offences. Appeals against sentence will, once permission to appeal has been granted, be to the Full Court.

The model of a two judge bench to hear appeals has been established interstate, in Victoria (by rules of court) and New South Wales (by statute, section 6AA of the Criminal Appeal Act 1912). It has not encountered any apparent problems. The Chief Justice supports this change. The proposal will save precious court resources.

The two Justices hearing an appeal will have the discretion to refer an appeal against conviction or sentence to the normal bench of three Justices if the appeal becomes complex or difficult or they are divided.

The Bill inserts a general provision in the Supreme Court Act1935 to allow for a single judge to exercise the powers of the Full Court of the Supreme Court in certain limited circumstances. Appeals under section 352 of the Criminal Law Consolidation Act against sentences imposed in the District and Supreme Court at present 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. If the single judge refuses permission, the application may be renewed to the Full Court.

The Bill amends the Supreme Court Act 1935 to allow a single judge to exercise the powers of the Full Court of the Supreme Court in relation not only to appeals against sentences imposed in the District and Supreme Court, but extends the power to include those appeals from major indictable offences in relation to which sentence was imposed in the Magistrates' Court. As the provision is of general application, section 367 of the Criminal Law Consolidation Act 1935 will now have no work to do and it is repealed.

This Amendment was requested by the Chief Justice.

The third issue is to clarify the procedure to appeal a pre-trial finding. The Chief Justice has suggested that the Criminal Law Consolidation Act 1935 be amended 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 the 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 provision will promote the expeditious hearing of criminal proceedings and discourage pre-trial satellite litigation. It will not effect a defendant's right to appeal a conviction in the normal way, if that is the outcome of the trial.

The Bill finally clarifies the operation of section 26 of the Statutes Amendment (Court Efficiency Reforms) Act 2012. Section 26 states that the appeal right for a defendant who is sentenced for a major indictable offence in the Magistrates Court will lie to the Full Court of the Supreme Court. This amendment clarifies that the appeal lies to the Full Court, not just in relation to the sentence imposed for the major indictable offences 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 at the same time as he or she was sentenced for the major indictable offence.

Conclusion

The Bill may not satisfy everybody. Some may claim that it goes too far, others that is does go not far enough. My response is simple. The Bill strikes a careful balance. South Australia is not Texas. This State is not awash with wrongful convictions and the falsely imprisoned. Equally no system of criminal justice is infallible and there needs to be some means for convicted defendants to bring fresh and compelling evidence that questions the safety of their original conviction before a court. The Bill is a fair and balanced measure to reconcile the conflicting interests in this area.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

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

This clause ensures that the Full Court can revoke a permission to appeal granted by the trial court if necessary.

5—Amendment of section 352—Right of appeal in criminal cases

This clause allows the DPP a cross appeal as of right where the convicted person has been granted leave to appeal against sentence, or deferral of sentence, under section 352(1)(a)(iii).

6—Insertion of section 353A

This clause inserts a new section allowing a second or subsequent appeal (with the permission of the court) by a person convicted on information if the Full Court is satisfied that there is fresh and compelling evidence that should be considered on an appeal. The concepts of 'fresh' and 'compelling' evidence are defined consistently with the definitions in Part 10 of the Act.

7—Amendment of section 357—Appeal to Full Court

This clause allows the Chief Justice to determine that the Full Court may be constituted of only 2 judges (instead of the usual 3) for the purposes of an appeal under the Act.

8—Repeal of section 367

This clause is repealed consequentially to the proposed amendments to section 48 of the Supreme Court Act 1935 (because the matters currently dealt with in section 367 will now be dealt with by that general provision).

9—Amendment of section 369—References by Attorney-General

This amendment would allow the Full Court to quash a conviction where a full pardon has been granted.

Part 3—Amendment of Magistrates Court Act 1991

10—Amendment of section 42—Appeals

This clause—

clarifies that the Full Court sentence appeal procedure applicable to major indictable offences (to be inserted by the Statutes Amendment (Courts Efficiency Reforms) Act 2012, which is yet to commence) will apply where the defendant has been sentenced in the Magistrates Court for multiple offences, not all of which are major indictable offences; and

for consistency with the amendments proposed in relation to section 357 of the Criminal Law Consolidation Act 1935, allows the Chief Justice to determine that the Full Court may, in such appeals, be constituted of only 2 judges

11—Insertion of section 43A

This clause inserts a new section allowing a second or subsequent appeal (with the permission of the court) by a person convicted in the Magistrates Court if the appeal court is satisfied that there is fresh and compelling evidence that should be considered on an appeal. The concepts of 'fresh' and 'compelling' evidence are defined consistently with the definitions in the Criminal Law Consolidation Act 1935.

Part 4—Amendment of Supreme Court Act 1935

12—Amendment of section 5—Interpretation

This clause is consequential to clauses 6 and 10(2).

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

The proposed amendments to section 48 allow a single judge of the Supreme Court to exercise powers given to the Full Court in respect of certain specified matters relating to appeals (provided that if a single judge refuses to exercise any such powers in favour of an appellant, the appellant is entitled to have the application determined by the Full Court).

Schedule 1—Transitional provision

The amendments are to apply to appeals instituted after commencement of the measure, regardless of whether the relevant offence was committed, or allegedly committed, before or after that commencement,

Debate adjourned on motion of Hon. S.G. Wade.

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