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

Second Reading

Adjourned debate on second reading.

(Continued from 7 March 2013.)

The Hon. S.G. WADE (16:02): I rise on behalf of the Liberal opposition to indicate our support for the Statutes Amendment (Appeals) Bill 2012. The bill was introduced by the Attorney-General in the House of Assembly on 28 November last year. It deals with four issues. First, let me address appeals against conviction. The bills allows defence appeals against criminal convictions in the event of fresh and compelling evidence coming to light after other rights of appeal have been exhausted. The bill arises out of recommendation 3 of the Legislative Review Committee report into the Criminal Cases Review Commission Bill. That recommendation reads as follows:

That Part 11 of the Criminal Law Consolidation Act 1935 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;

(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.

As the report of the committee put it:

Currently under part 11 of the Criminal Law Consolidation Act 1935, a convicted person only has one right of appeal against their conviction, which must be exercised within three weeks of their verdict being handed down. The court has set a very high threshold as to the types of evidence it will admit, and has indicated its reluctance to hear another appeal after a judgment has been finalised. There is currently no forum for a convicted person to raise new evidence which may come to light due to advances in scientific testing, new witnesses, or even where there may have been errors in the original trial.

The only other option available to a convicted person is the prerogative of mercy and the reference of the matter to the Attorney-General for consideration of possible reference back to the Court of Criminal Appeal. The Committee notes that the prerogative of mercy and section 369 is rarely used; further, section 369 does not contain any time frame or structure around the Attorney-General's review process, and lacks transparency.

The principle of finality provides that once a conviction is recorded and the one statutory right of appeal has been exercised, there is no mechanism for a person to have their conviction re-examined on any grounds. The Committee agrees that the principle of finality is needed to maintain the integrity of the justice system, to provide certainty in the community and for victims of crime, and should only be abrogated in exceptional circumstances.

The Committee notes the submission of the Australian Human Rights Commission that South Australia's current appeal mechanism may contravene Article 14 of the International Covenant on Civil and Political Rights. Although the Committee accepts that our current appeals legislation cannot be challenged on this basis, it is keen to ensure that South Australian law complies as far as possible with Australia's international obligations under the ICCPR.

The Committee therefore recommends that the appeal provisions contained in Part 11 of the Criminal Law Consolidation Act 1935 be amended to include a further right of appeal by a convicted person at any time with the leave of the court on the basis of a tainted conviction, or where there is fresh and compelling evidence which may cast reasonable doubt over the guilt of the convicted person. The same definition of 'tainted acquittal' and 'fresh and compelling evidence' contained in sections 333 and 337 (respectively) of the Criminal Law Consolidation Act 1935 should be applied. The provision should include the ability of the court to order a new trial if it sees fit.

The Committee is of the view that the principle of finality is applied by the court and should only be disturbed by the court in these exceptional and limited circumstances. Any further right of appeal should be at the discretion of the court.

This bill takes up the recommendation and the logic, although there are some differences of detail. I was pleased to be part of the Legislative Review Committee consideration on this matter. I think the Hon. Russell Wortley might have been chair during that period. I commend the Hon. Ann Bressington for bringing the issue of criminal cases review before the parliament, for the Legislative Council for having the wisdom to refer the issue to the committee, to the Legislative Review Committee for its work under the chairmanship (as I acknowledged) of the Hon. Russell Wortley, and to the government for bringing forward a bill based on that report.

In passing, I note that it is yet another example of good work done by this council and its committees. I should say the committees of this parliament because in this case it is a joint committee. I draw honourable members' attention to an article in today's InDaily by Jeremy Roberts where he writes about this bill in what I think you could only describe as glowing terms. I quote in part, and I must admit not in order:

State Parliament is set to pass Australia's first new statutory right of appeal for prisoners who wish to test their convictions with new and compelling evidence of innocence. The legislation could be passed by the Legislative Council as early as today.

The prospect has led retired High Court judge Michael Kirby to hope that the reform be adopted across Australia so as to avoid miscarriages of justice for people who have already used up their single right to appeal. Justice Kirby is laudatory of South Australia for again finding itself in the forefront of legal innovation and he is hopefully eying other jurisdictions.

'I congratulate the South Australian Parliament on returning to the tradition of innovation and leadership in legal reform,' he said. 'I hope that the measure to be adopted in South Australia will be quickly considered in other Australian jurisdictions because the risks of miscarriage of justice arise everywhere and they need more effective remedies than the law of Australia presently provides. The Bill is an instance of democracy in action and of principle triumphing over complacency and mere pragmatism.'

Elsewhere in the article, former New South Wales director of public prosecutions Nick Cowdery, who retired in 2010 after 16 years as the state's chief prosecutor, welcomed the reform as an Australian first:

'Putting this sort of process into statute is a benefit and would be an Australian first—it clearly states the circumstances and tests that need to be satisfied for an appeal to proceed,' he said. 'Putting this measure on a statutory footing can only be a good thing.'

The impetus for the bill was the Legislative Review Committee's report into the Criminal Cases Review Commission Bill. I note that the Hon. Ann Bressington has campaigned long and hard for South Australia to have such a commission.

The Law Society is supportive of the amendments; however, it argues that the requirement that the defence must establish a 'substantial miscarriage of justice' has occurred rather than just a miscarriage of justice creates unnecessary confusion and ambiguity, given that the phrasing of the bill imposes different criteria with respect to second or subsequent appeals. Whilst the Liberal opposition will not be moving amendments to address that point, we think that the Law Society makes a valid point.

In relation to cross-appeals, the bill will give the prosecution the right to cross-appeal in the context of a defence appeal without the court's permission. The government claims that this will provide greater parity between the parties, discouraging defendants from lodging unmeritorious appeals and that the bill will make South Australia consistent with all other Australian jurisdictions. The Law Society is opposed to giving the prosecution an automatic right to cross-appeal whenever the defendant appeals their sentence.

In the society's view, the proposal is unfair, inappropriately alters the appellate landscape and inappropriately discourages the defendant from exercising their fundamental right of review. The opposition appreciates the society's concerns but considers that, in the context of prosecution policies and practices, it is an appropriate development of appeal processes.

In relation to the changes proposed by the bill in relation to the Full Court, the bill will 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. We expect that this discretion would only be used in matters not expected to be contentious, and we understand that similar models operate in Victoria and New South Wales.

The Law Society of South Australia is critical of the proposed provisions, particularly because it is not limited to sentence appeals (as New South Wales and Victoria are). Further, the provision fails to prescribe what happens when two judges are divided in opinion. The Law Society argues that the provision is in direct conflict with section 349 of the Criminal Law Consolidation Act, which states that any decision of the Full Court is that decided by the majority of judges hearing the case. This cannot occur where the judges are split one-one.

That view stimulated the opposition to file an amendment to deal with the issue of a tied bench in a similar way to the New South Wales provisions. The government prefers a simpler model and has tabled an alternative amendment. Both have the effect of referring a tied bench matter to a court of three. The opposition is happy to support the government amendment. I will not be moving mine.

The Liberal opposition notes that many of the Law Society's concerns can be ameliorated by the way the Chief Justice manages the court's caseload. In this context, I think it is interesting to note the experience of the New South Wales and Victorian jurisdictions. I note that with respect to the Victorian model, the Victorian Court of Appeal recognised the importance of sentence appeals and concluded that '[i]n the face of a growing backlog...[it is]—precisely because of the importance of sentence appeals—that it was preferable to have the appeal heard earlier by two judges rather than later by three.' As such, the practice of allowing straightforward sentence appeals to be determined by a bench of two judges rather than three or more was introduced.

A Sentencing Advisory Council of Victoria report in March 2012 concluded that the court infrequently utilised the practice initially. Between 2007-08 and 2008-09, only 33 appeals by offenders were heard by two judges of appeal, that is, 11.1 per cent of cases. The overwhelming majority of cases were heard by three judges. It is unlikely that the practice made a significant difference to disposal of sentence appeals for that period. The report noted that the Supreme Court intended to increasingly list sentence appeals before two judges as part of continued action to reduce waiting periods in criminal appeals.

The New South Wales legislation was enacted for similar reasons. It was intended to be used where the prosecution did not cross-appeal. I have been informed that prosecutors in New South Wales are increasingly mounting cross-appeals in defence appeals against sentence, resulting in an increase in complex appeals and, as such, the provisions are not being used as often.

The opposition appreciates the need for the government to take steps to address the woeful backlog in our court system and supports that element of the bill. With those remarks at the second reading stage, I commend the bill to the council.

The Hon. A. BRESSINGTON (16:13): I also rise to speak to the appeals bill. First of all, my interest in wrongful convictions goes back to probably two weeks after I came into this place, when I was made aware of at least four cases where people may have been wrongly convicted. I must say that on reading the books of Dr Bob Moles on a number of cases, my interest grew. However, going over to Western Australia in March last year, to the first International Justice Conference, was probably a defining moment in my time in here.

I met 15 people who had spent anywhere from 18 years to 30 years incarcerated on a wrongful conviction. I met with Lindy Chamberlain and heard of her struggles because of accusations and her imprisonment over the death of her daughter Azaria. I met with Hurricane Carter, a gentleman from the United States, who spent I think 27 years—he and his best friend—in gaol for a crime that they did not commit. I also met a number of others from New Zealand, Western Australia and, indeed, Canada.

What struck me the most was that there was a blueprint as to how people were incarcerated for crimes they did not commit; murders that they did not commit. There was a number of elements: one was the need for a hasty conviction to keep the public happy; another one was trial by media; and the other one was sloppy police work. All three of those combined meant that people and their families lost valuable years and valuable time together.

Last year I decided to work with Dr Bob Moles and Bibi Sangha and, with their help, put together the Criminal Case Review Commission Bill. I thank the Legislative Council and the Legislative Review Committee for putting that piece of legislation under review and for coming up with the recommendations that it did that has produced the bill that is before us today.

I do not think that there is anything worse than being falsely accused of murdering a person or a loved one, a member of your family or someone that you had a relationship with and then spending all of that time in prison knowing that you are innocent and with no way of your evidence being heard if fresh and compelling evidence comes to the fore. Justice Kirby asked me to read out, on his behalf, the following statement:

I welcome the provisions of the Statutes Amendment (Appeals) Bill 2012 (SA) to address cases of possible miscarriage of justice in a more effective way.

This is innovative legislation. I congratulate the South Australian Parliament on returning to this tradition of innovation and leadership in legal reform. I hope that the measure adopted in South Australia will be quickly considered in other Australian jurisdictions because the risks of miscarriage of justice arise everywhere and they need more effective remedies than the law of Australia presently provides.

The desire of human minds for neatness and finality is only sometimes eclipsed by the desire of human minds for truth and justice. There will always be a disinclination to reopen a conviction, particularly where it has been reached after a lengthy criminal trial and a verdict of guilty from a jury of citizens. Sometimes, however, that disinclination must be confronted and overcome with the help of better institutions and procedures than we have so far developed in Australia.

Fortunately, the Parliament of South Australia is now enacting sensible legislation that responds to the problem of miscarriages of justice. It is the first step for Australia. Judges, lawyers and administrators throughout Australia will be studying the operation of the South Australian law with vigilance. Any law that helps society to avoid serious miscarriages of justice is to be welcomed. The new South Australian law is such a measure. I welcome it and praise the Parliament of South Australia. I also praise Ms Bressington for her initiative and the lawyers and the civil society organisations who have been urging the adoption of such a law for so long. Their success is an instance of democracy in action and of principle triumphing over complacency and mere pragmatism. I hope that other jurisdictions in Australia will take steps to enact legislation for the same purpose.

I agree with Justice Kirby that this is indeed a proud time for the Parliament of South Australia. I truly look forward to people who have been wrongly convicted in this state and who have served many, many years—sometimes decades—in prison for crimes they have not committed to be able to access this process post haste and to get the justice they are entitled to.

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) (16:20): By way of summing up, I thank honourable members for their second reading contribution to this important bill. I particularly take this opportunity to respond to some of the comments raised by the Hon. John Darley during his contribution.

I can advise that the Attorney-General and the government carefully considered their response to the Legislative Review Committee's seven recommendations. The Attorney-General's response to the recommendations was sent to the chair of the committee, the Hon. Gerry Kandelaars, in January 2013. For the sake of clarity, I will summarise the contents of that letter.

The government agreed to recommendations 1 and 2; namely, there is no need to establish a criminal case review commission in South Australia and that such body should not be pursued at a national level. The bill carries out recommendation 3, subject to an extension of the new appeal right to all offences. The bill does not include reference to tainted convictions because such inclusion is superfluous. A genuinely tainted conviction would fall within the scope and definition of 'fresh and compelling evidence'.

The suggestions contained within recommendation 4 are either unnecessary, as juries and judges already have the ability to ask witnesses questions, or better dealt with by encouraging further engagement between the courts and the legal profession on the issue of expert evidence.

In relation to recommendation 5, the government does not intend to establish a forensic science review panel in South Australia. The new appeal right to be established by this bill provides an adequate solution to those who consider their conviction ought to the revisited.

Recommendation 6 includes elements that are already in place within our criminal justice system. The Director of Public Prosecutions has confirmed that it is standard procedure for the director's office to contact victims to notify them of all appeals, whether they be appeals against conviction or sentence. The DPP has noted that this procedure will also apply to the new appeal right to be established under the bill. Victims are already entitled to and provided with information about the progress of appeals, on request. The Attorney-General has also contacted the Crown Solicitor to ensure that these processes are also in place for the appeals involving his office.

With respect to the recommendation that victims be provided the opportunity to make submissions during an appeal against conviction, the government will not progress such a change within this bill. In any event, I am advised that victims are entitled to representation, in certain circumstances, under the common law, and this will continue to be the case after the passage of this bill. Finally, I note that the bill carries out recommendation 7. I therefore commend the bill to the house.

Bill read a second time.

In committee.

Clauses 1 to 3 passed.

New clause 3A.

The Hon. G.E. GAGO: I move:

Page 2, after line 9—Before clause 4 insert:

3A—Amendment of section 5—Interpretation

Section 5(1), definition of Full Court—delete the definition and substitute:

Full Court has the same meaning as in the Supreme Court Act 1935;

This is a consequential government amendment to ensure consistency in the operation of the provisions of the bill that provides for the Full Court to be convened by two judges at the discretion of the Chief Justice.

New clause inserted.

Clauses 4 to 6 passed.

Clause 7.

The Hon. G.E. GAGO: I move:

Page 4, after line 11—After inserted subsection (3) insert:

(4) The decision of the Full Court when constituted by 2 judges is to be in accordance with the opinion of those judges or, if the judges are divided in opinion, the proceedings are to be reheard and determined by the Full Court constituted by such 3 judges as the Chief Justice directs (including, if practicable, the 2 judges who first heard the proceedings on appeal).

The Hon. Stephen Wade filed amendments to this bill which indicated there may be some confusion about the way a Full Court constituted of two judges might operate. It has always been the government's and the Chief Justice's intention that if a Full Court constituted by two judges is divided in opinion, the appeal is to be referred to a Full Court of three judges. This amendment clarifies that intent.

The Hon. S.G. WADE: I thank the government for moving the amendment. As I said, my earlier amendment followed the precedent in New South Wales and provided for an alternative approach on, if you like, minor matters. I certainly am happy to defer to the government's simpler approach and commend it to the council.

Amendment carried; clause as amended passed.

Clauses 8 and 9 passed.

Clause 10.

The Hon. G.E. GAGO: I move:

Page 4, after line 28—After inserted subsection (2a) insert:

(2b) The decision of the Full Court when constituted by 2 judges is to be in accordance with the opinion of those judges or, if the judges are divided in opinion, the proceedings are to be reheard and determined by the Full Court constituted by such 3 judges as the Chief Justice directs (including, if practicable, the 2 judges who first heard the proceedings on appeal).

It is consequential to amendment No. 1.

Amendment carried; clause as amended passed.

Remaining clauses (11 to 13), schedule and title passed.

Bill reported with amendment.

Third 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) (16:30): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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