Bill Speech: Justice Legislation Amendment (Criminal Appeals) Bill 2019
Ms SPENCE (Yuroke) (12:28:20): I am very pleased to rise today to add my contribution to the debate on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. This bill will make changes that will modernise and improve Victoria’s appeals processes, with four key changes. Firstly, the bill abolishes de novo appeals from criminal matters in the summary jurisdiction and replaces them with new appeals processes that in most cases will not require victims and witnesses to give evidence again. Secondly, it abolishes de novo appeals against final orders made by the family division of the Children’s Court. Thirdly, the bill introduces a new second appeal right in indictable matters in narrow and rare circumstances where the Court of Appeal is satisfied that fresh and compelling evidence exists and that there was a substantial miscarriage of justice. Finally, the bill empowers the Court of Appeal to refer an issue or matter in an appeal to a trial court for determination. The right of appeal is a key tenet of our legal system, be it the right to challenge an administrative decision of a government department, a local government planning decision, a traffic infringement or a decision of a court. All of us here will have had constituents come to us and ask how they can challenge a decision, how they can have a decision reviewed or how they can appeal a decision that they do not agree with. In criminal matters this appeal process is particularly important as it provides a safeguard for both the prosecution and the defence. Appeals allow the prosecution to challenge inadequate sentences and also allow errors or injustices to be corrected by higher courts. Both of these purposes are strongly in the public interest. However, appeals can also be incredibly difficult for victims and witnesses as matters are prolonged: they have to go through the trauma of a second trial and they are often required to give evidence in court again. It is for this reason that the reforms in this bill that I want to focus on are those in regard to abolishing de novo appeals. De novo appeals, as we have heard many times today, are appeals of decisions by magistrates that are heard afresh in the County Court. All of the evidence is heard again, all of the issues are considered afresh and a new decision is made. In these appeals victims and witnesses must reattend court and their evidence is given again. A de novo appeal does not require the County Court to find that there was an error in the summary proceeding for the appeal to take place; it effectively allows an accused another chance to dispute their charges, regardless of whether there were any mistakes made during the original hearing, and it can occur even when the appellant pleaded guilty in the summary court. The de novo appeal process comes from the 17th-century English system of appeals. Unsurprisingly, four centuries later, these appeals are outdated and do not reflect our modern justice system. It is important to note, as others have, that Victoria is the only Australian jurisdiction that continues to have an ‘as of right’ de novo appeal for all appeals from decisions of magistrates in criminal matters, and this includes appeals against both conviction and sentence. This bill replaces de novo appeals with a rehearing process that requires the County Court to have regard to the magistrate’s reasons for a decision, which is not currently required. In doing so, moving forward, it will provide magistrates with far more guidance than they currently receive, leading to more consistent outcomes. In most cases, both conviction and sentence appeals would also be dealt with by the County Court ‘on the papers’ instead of a full rehearing of the matter. As such, victims and witnesses would not have to go through the trauma of giving evidence and being cross-examined all over again. For conviction appeals, the bill introduces a new process that requires the County Court to redetermine the case on the transcript of the evidence given at the original hearing. The court will have the ability to receive further information in limited but appropriate circumstances where it is in the interests of justice to do so and in the case of evidence from a complainant, or a child or person with cognitive impairment, in a sexual offence, family violence or assault case if the evidence is substantially relevant to a fact in issue in the appeal. If the offender pleaded guilty or did not appear in the Magistrates Court and a conviction was recorded in their absence, they will be required to seek leave to appeal from the County Court. To assist the County Court to identify appeals that are likely to be abandoned early, the bill also requires the appellant to file a summary of appeal notice and attend a pre-appeal mention hearing if the court requires it. If this does not occur, the appeal can be struck out by the court. In regard to sentence appeals, the bill introduces a new threshold test whereby the County Court may only allow the appeal if satisfied that there are substantial reasons to impose a different sentence to that imposed by the magistrate. The appeal will be determined on the evidence and materials that were before the magistrate. When deciding whether there are substantial reasons to impose a different sentence, the County Court is required to consider the magistrate’s reasons for imposing the original sentence and the need for a just and fair outcome. The question of what constitutes a ‘substantial reason’ to impose a different sentence will be determined by the appellate court on a case-by-case basis. Circumstances that would ordinarily satisfy the ‘substantial reasons’ test include where the original sentence was manifestly excessive or manifestly inadequate in the case of a Director of Public Prosecutions appeal, which means that it was so far outside the possible range of sentences that it could not have been imposed for the offending and that the appellate court can infer that the sentencing magistrate must have made a mistake when imposing the sentence, or where there is an error of law, such as if the sentencing magistrate identified an incorrect maximum penalty, or imposed conditions on a community correction order that were not available at law. The bill also abolishes de novo appeals from final orders of the family division of the Children’s Court. These final orders include protection orders, therapeutic treatment orders, family preservation orders and permanent care orders. There will continue to be a right of appeal to the Supreme Court on a question of law from these orders, which allows for the correction of errors. These appeals can be conducted much more efficiently than a de novo hearing of the case. The bill does not change appeal rights from interim orders of the family division. These appeals are heard by the Supreme Court as a rehearing, which allows the Supreme Court to deal with the applications urgently. This is important for these particular appeals because interim orders deal with urgent protective orders for children. The abolition of de novo appeals from final orders of the family division of the Children’s Court are particularly important as de novo appeals can prolong the instability and uncertainty experienced by children in these matters. This is because de novo appeals cannot be heard quickly. They require all of the witnesses to give their evidence again. This means that hearings can take months before they even get to court. This is really due to the availability of witnesses and courtrooms. At the end of the process of actually getting these matters to court, around two-thirds of these cases are abandoned at the last minute anyway. Protecting the child’s best interests, the possible harmful effect of delay in these cases and bringing stability to the child’s life as soon as possible are the most important considerations in these cases. For that reason, appeals will still be able to be made, but they will be to the Supreme Court and on a question of law. This bill replaces the de novo appeal process with a modern appeals system which will correct errors. It will apply fairly and consistently for all parties and it will cause minimal harm to victims and witnesses. I have heard some terrific contributions this morning, such as those from the member for Carrum next to me and the member for Buninyong behind me. I congratulate them on their terrific contributions. I saw there were contributions from others that I did miss, and I look forward to those who are about to kick off as well. I do congratulate the Attorney-General on bringing this bill before the Parliament. I also want to acknowledge the work of the previous Attorney-General, who brought components of this bill in an earlier bill that came to the Parliament and passed this place in 2018. These are really important changes to the appeals process in Victoria. They will modernise the appeals process. They will make for a much fairer appeals process. They protect those who are most vulnerable within our legal system, particularly children, witnesses and victims, who do not need to go through the retraumatisation of having to give evidence all over again in a higher court. I commend the bill to the house.