New laws to modernise Victoria’s criminal appeals system have passed Parliament today, making appeal proceedings more efficient and reducing the burden on victims and witnesses.
The legislation includes reforms to abolish de novo appeals of criminal cases to the County Court.
Under the new law, when a person is found guilty by the Magistrates’ or Children’s Court and seeks to appeal their conviction, the County Court will no longer have to hear all evidence again to reach a new decision, eliminating the need for a new—or de novo—hearing.
Instead 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.
Importantly, victims and witnesses will not be required to suffer through the traumatising process of providing evidence for a second time during appeal proceedings.
Sentence appeals will also be determined on evidence and materials before the original court, and may only be allowed if the County Court finds there are substantial reasons to impose a different sentence. The magistrate’s reasons for the original sentence must be taken into account when considering the appeal.
De novo appeals against final orders made by the Family Division of the Children’s Court will also be abolished under the reforms.
The new laws will also create a second or subsequent right of appeal of convictions for indictable offences, allowing the judicial system to determine whether a substantial miscarriage of justice has occurred and whether a prisoner should be released or re-tried.
Once a convicted person has exhausted their appeal rights under the existing system, the only avenue to have a conviction overturned is via the petition for mercy process, whereby the Attorney-General must decide whether to refer the matter to the Court of Appeal for consideration or to the Governor for a pardon or remission of sentence.
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 the Court considers warrants an appeal.
Second appeals will only be available in exceptional circumstances, and applicants will have to show that their case meets very strict legal criteria before they will be able to have their appeal heard.
Quotes attributable to Attorney-General Jill Hennessy
“These new laws are about delivering Victorians the modern, efficient and fair appeals system they deserve.”
“Convicted persons will now have a right to appeal their conviction if fresh and compelling evidence of a potential substantial miscarriage of justice comes to light - and the courts rather than politicians will consider that appeal, openly and transparently.”
Reviewed 19 August 2020