WA Parliament Introduces Bill To Create New Appeal Pathway

Friday 5 July 2019 @ 2.17 p.m. | Crime | Legal Research

The Criminal Appeals Amendment Bill 2019 (the “Bill”) was introduced to the Legislative Assembly of WA (the “Assembly”) on 20 February 2019 by Attorney-General, the Hon John Quigley.  The Bill passed the  Assembly on 25 June 2019 and was introduced to the Legislative Council (the "Council") on 27 June 2019. It proposes to amend the following pieces of WA legislation:

  • Criminal Appeals Act 2004;
  • Bail Act 1982;
  • Fines, Penalties and Infringement Notices Enforcement Act 1994;
  • Supreme Court Act 1935; and
  • Criminal Procedure Act 2004.

Background to the Bill

According to the Bill’s Explanatory Memorandum, the Criminal Appeals Act 2004 will be amended to introduce a new statutory right:

“… for an offender convicted of an offence on indictment to bring a second or subsequent appeal to the Court of Appeal against conviction, if there is either fresh and compelling, or new and compelling, evidence relating to the offence.”

If passed, the Bill will create a pathway for a second and subsequent appeal directly to the Court of Appeal. Currently, after all appeals are exhausted, an offender can only appeal again on the recommendation after petition of the Executive by virtue of Part 19 - Royal Prerogative of Mercy to the Sentencing Act 1995 or petition for a Pardon under the Governor’s Royal Prerogative Powers.

Overview of the Amendments

The Explanatory Memorandum indicates that the Criminal Appeals Act 2004 will be amended by inserting new Part 3A – “Further appeals against conviction”, which requires any appeal under Part 3A to be commenced by application for special leave to appeal to the Court of Appeal.

Part 3 of the Bill (“Consequential amendments to other Acts”) also sets out the powers of the Court of Appeal in hearing both applications for special leave to appeal and appeals, providing for the allowance or dismissal of the appeal, and a range of options that may be utilised at the discretion of the Court of Appeal when an appeal has been allowed. 

All consequential amendments contained in Part 3 insert a reference to appeals under the new Part 3A, where appropriate, in provisions which currently reference appeals under Part 2 or Part 3 of the Criminal Appeals Act 2004.

The Bail Act 1982 is to be amended by inserting a new section 15A(2)(d) to clarify that there is a right of appeal from a single judge of appeal to the Court of Appeal in relation to questions of bail pending appeal.

The Criminal Procedure Act 2004 is to be amended by making minor amendments to section 121(2) and (4) to “allow an application for a stay order to be made to the superior court at any time after a person becomes a convicted person and before an appeal under the proposed Part 3A of the Act is commenced”.

Section 101B to the Fines, Penalties and Infringement Notices Enforcement Act 1994 is to be amended to provide that “where a person is granted leave to appeal under the proposed Part 3A of the Act against a fine, or a decision giving rise to a fine, the enforcement of that fine is suspended on appeal”.

The Explanatory Memorandum also notes that the proposed amendments to the Supreme Court Act 1935 provide for amendments to section 57(2):

“… to provide for the constitution of the Court of Appeal when hearing and determining an application or appeal under Part 3A of the Act, being an uneven number of judges of appeal not less than 3, except where a single judge of appeal is exercising the jurisdiction and power of the Court of Appeal as set out in section 61 of the Supreme Court Act.”

Amendments to section 57(4)(a) will “…exclude Part 3A appeals from the application of section 57(4), mirroring the treatment of Part 3 appeals in that regard”, while section 58(1)(f) is to be amended “… to allow the Court of Appeal to have, and be deemed since the coming into operation of the Criminal Appeals Act always to have had, jurisdiction to hear and determine applications and appeals under proposed Part 3A”.

Government Comments on the Bill

In the Attorney-General's Speech, he stated:

“… a convicted person who has exhausted all of their appeals has no further right to appeal, even if fresh or new evidence later emerges that has the potential to exonerate them. It is this circumstance that necessitates the statutory enactment to allow for that fresh or new evidence to be heard and assessed, addressing and rectifying any substantial miscarriage of justice. Without this important bill, a person who is the subject of a substantial miscarriage of justice, even where there is new evidence showing his or her innocence …”

While the Attorney-General further commented:

“… I have had to balance the public interest in correcting substantial miscarriages of justice, and the public interest in the finality of litigation … In considering the cases of Mallard, the Mickelbergs, and von Deutschburg, we as a collective have experienced that belief waver in light of exposed corruption and, more positively, advances in medical science and technology …”

The Andrew Mallard Case

ABC News has previously reported on the wrongful murder conviction of  West Australian Andrew Mallard and the lengthy fight to have his name cleared after he was arrested for a murder he was alleged to have committed in 1994. After several interviews with police (where he speculated how the victim may have been killed and drew a picture of a wrench which police said he used to kill her) he was arrested for murder.

Mr Mallard said he was fed information by police to repeat back to them, but police treated it as a confession, and he was eventually convicted and sentenced to 20 years gaol. After a lengthy fight to have his name cleared (the investigation was conducted on his behalf by a WA politician and journalist), the High Court eventually quashed his conviction in November 2005 and declared a miscarriage of justice occurred - see Mallard v R [2005] HCA 68; (2005) 224 CLR 125; (2005) 222 ALR 236; (2005) 80 ALJR 160 (15 November 2005).

Mr Mallard’s family hope WA’s new “second appeal” laws could become his life’s greatest legacy and if passed, “will stand as part of Andrew’s legacy. Everyone's life should have a meaning, and maybe Andrew's was to bring about changes to the justice system.”

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