Bill to Modernise Vic Appeals System Introduced

The Justice Legislation Amendment (Criminal Appeals) Bill 2019 (Vic) (the “Bill”) was introduced into Victoria’s Legislative Assembly (“Assembly”) on 16 October 2019, by the Attorney-General, Minister for Workplace Safety, the Hon Jill Hennessy. The Bill passed the Assembly on 31 October 2019 and was introduced to the Legislative Council (“Council”) on the same day.

The Bill proposes amendments to the following legislation:

• Children, Youth and Families Act 2005;
• Criminal Procedure Act 2009; and
• Supreme Court Act 1986.

Object of the Bill

Outlined in a Media Release from the Attorney-General, the object of the Bill “is improving and modernising Victoria’s appeals system, making appeal proceedings more efficient and transparent, and better supporting victims”.

It is hoped the proposed reforms will abolish de novo appeals of criminal cases to the County Court. Currently, when a person is found guilty by the Magistrates’ or Children’s Court and appeals that conviction, the County Court must hear all evidence again and reach a new decision. Essentially, appeals are a new (or de novo) hearing.

Overview of the Amendments

The proposed amendments are as follows:

• Children, Youth and Families Act 2005 is extensively amended, but the object is to abolish de novo appeals against Final Orders made by the Family Division of the Children's Court;
• Criminal Procedure Act 2009 is substantially amended, including the insertion of new Division 1AA of Part 6.1 and substitution of Division 1 of Part 6.1; and
• consequential amendments to the Supreme Court Act 1986, being amendments to sections 113O(a) - where "6.4 is inserted after 6.3" and to section 113P(a) - where "6.4 is inserted after 6.3".

Outcome of the Proposed Reforms

Under the current system a considerable burden is placed on victims and witnesses who are required to give their evidence again during Appeal proceedings and in turn consumes large amounts of County Court time and resources. It is hoped the reforms will see conviction appeals decided on transcript of evidence from the original hearing, with further evidence received only if the County Court considers it to be in the interests of justice.

The Bill will also include reforms to allow substantial miscarriages of justice to be dealt with more transparently, through the courts, by introducing a second or subsequent right of appeal of convictions for indictable offences, in limited circumstances.

The Media Release also notes that “under existing law, if new evidence is discovered after a convicted person has exhausted their appeal rights the only avenue to have a conviction overturned is via a petition for mercy”. If this situation were to occur, the Attorney-General must decide whether to recommend the Governor pardon or remit the sentence or refer the matter to the Court of Appeal for consideration.

Commenting on the proposed reforms in her speech to Parliament, the Attorney-General said:

“… These changes will establish a modern appeal process that:

• reflects Victoria’s modern court system and promotes the integrity of the decisions that are made by Victoria’s magistrates,

• saves victims and witnesses from the trauma of having to give evidence more than once,

• recognises an accused person’s right to challenge their conviction or sentence in appropriate cases, and

• makes more efficient use of our higher courts, to help reduce delays and facilitate greater access to justice across the system.”

Comment and Reaction to the Bill

Also noted in the Media Release is that the creation of a second or subsequent right of appeal will allow a convicted person who has exhausted their appeal rights, to appeal again only if fresh and compelling evidence emerges that shows a substantial miscarriage of justice has occurred.

In her speech to Parliament, the Attorney-General also commented:

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Justice Legislation Amendment (Criminal Appeals) Bill 2019 (Vic) - Bill and supporting information available from TimeBase LawOne Service. 

Modernising Victoria’s Appeals System – Attorney General of Victoria Media Release (16 October 2019)