STATUTES AMENDMENT (APPEALS) BILL 7th March 2013
Adjourned debate on second reading.
(Continued from 19 February 2013.)
The Hon. J.A. DARLEY (17:11): I rise briefly to speak on the Statutes Amendment (Appeals) Bill
2012. The bill, if you like, is an alternative to the Criminal Cases Review Commission Bill, as
introduced by the Hon. Ann Bressington in 2010. It is intended to improve appeals procedures in
South Australia by enabling renewed appeals against conviction on the basis of fresh and compelling
evidence.
As a member of the Legislative Review Committee, I was able to consider the need for an improved
appeals procedure following the referral of the Hon. Ann Bressington's Criminal Cases Review
Commission Bill for inquiry. Very briefly, the committee considered alternative approaches to
rectifying issues with the prerogative of mercy, as well as the possibility of establishing a criminal
cases review commission. It did so in response to concerns about the limited opportunity and
statutory rights available to a person who believes that they should not have been convicted of an
offence.
As provided by the committee's report, currently, a person has a right of appeal against their
conviction on limited statutory grounds; namely, a wrong decision on a question of law, on grounds
that the verdict was unreasonable or could not be supported having regard to the evidence or on the
grounds that there was a miscarriage of justice.
The court has determined that it will not reconsider evidence already adduced at the trial and will not
allow an appeal simply because it disagrees with the decision of a jury. Further, fresh evidence is able
to be admitted only if it is relevant and admissible. A convicted person has no right to a further appeal
on any grounds after this one right of appeal has been exhausted.
The only other option for a person wanting to challenge their conviction is to petition the Governor for
a pardon in the exercise of the prerogative of mercy. This is an entirely discretional exercise of power
by the Governor and does not result in a conviction being quashed. In practice, the Governor acts on
the advice of the Attorney-General and the government.
The bill proposed by the Hon. Ann Bressington was aimed at providing convicted persons the
opportunity to have any claims about the safety of their conviction investigated by an independent
body and referred to the court for the quashing of their conviction if they concluded that there was a
reasonable possibility that the conviction would be overturned. It was based on existing UK
legislation.
Whilst ultimately the committee did not recommend the establishment of a criminal cases review
commission at this point in time, it did, nevertheless, recommend the following:
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: the
conviction is tainted; where there is fresh and compelling evidence in relation to the offence which
may cast reasonable doubt on the guilt of the convicted person;
that the Attorney-General liaise with the courts in undertaking a review of the process of discovery
and presentation of scientific evidence in criminal trials and, in particular, considers amendments to
the legislation to allow certain expert evidence to be agreed by prosecution and defence and
amendments to legislation and/or court rules which allow the jury and/or judge in a criminal trial the
opportunity to ask questions of expert witnesses;
that the Attorney-General consider establishing a forensic science review panel to enable the testing
or retesting of forensic evidence which may cast reasonable doubt on the guilt of a convicted person
and for these results to be referred to the Court of Criminal Appeal;
that the Commissioner for Victims Rights' and victims of crime (if they request) be notified of any
post-conviction review to be undertaken under any act, be able to make submissions to any such
review proceedings either through written submissions or through representation by the
Commissioner for Victims' Rights and be entitled to information about the progress of such a review;
and, lastly
that the Attorney-General consider amendments to relevant legislation to provide that a person
granted a pardon for a conviction should be eligible to have their conviction quashed.
The government bill addresses some of these recommendations by introducing four new measures.
Firstly, consistent with recommendation No. 1, it provides for new procedures for renewed defence
appeals against conviction in the event that fresh and compelling evidence comes to light after the
existing right of appeal has been exhausted. Secondly, consistent with recommendation No. 7, it
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.
Thirdly, it provides the prosecution with an automatic right of cross appeal without the usual need to
obtain permission where a defendant appeals his or her sentence on the grounds of error and
therefore that a lower sentence should have been imposed, or alternatively on grounds that the
sentence was manifestly excessive. Lastly, the bill provides the Chief Justice with the discretion to
constitute the Full Court by a bench of two judges rather than three for both sentence and conviction
appeals.
I am somewhat disappointed that more of the recommendations were not adopted by the government
at this time and I take the opportunity to ask the minister at this point whether there are any plans to
implement any of the other recommendations at a later date. In particular, I am keen to hear the
government's views on the establishment of a forensic science review panel to enable the testing or
retesting of forensic evidence and for the Commissioner for Victims' Rights and victims of crime (if
they request) to be notified of any post-conviction review to be undertaken with a view to enabling
them to make submissions to any such proceedings. I would also be interested to get a more detailed
response as to why the new appeal right was based only on fresh and compelling evidence and not
on whether the conviction was tainted.
I take this opportunity to remind all honourable members that the recommendations were supported
unanimously by the committee, which is constituted by a majority of government members. This in
itself is quite telling and I maintain my position that these measures ought to have been incorporated
into the current raft of changes. In closing, I think credit ought to be given where credit is due and, in
this case, that is with the Hon. Ann Bressington who has persisted with this matter. With that, I
support the second reading of the bill and look forward to receiving responses about the matters
raised.
Debate adjourned on motion of Hon. Carmel Zollo.