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:
According to the Bill’s Explanatory Memorandum, the Criminal Appeals Act 2004 will be amended to introduce a new statutory right:
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.
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):
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”.
In the Attorney-General's Speech, he stated:
While the Attorney-General further commented:
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  HCA 68; (2005) 224 CLR 125; (2005) 222 ALR 236; (2005) 80 ALJR 160 (15 November 2005).
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.”
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.
Criminal Appeals Amendment Bill 2019 (WA) - Bill and supporting information available from TimeBase LawOne Service
FREE legislation news, delivered weekly.
Sign up now.#WeLoveLegislation Tweets
NEW information resources - great for training.