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New laws designed to modernise the Victorian criminal appeals system have this week passed Parliament, making the appeals proceedings more efficient.
The legislation will reduce the burden on victims with de novo appeals abolished. With this change, if a person is found guilty and seeks to appeal their conviction, the County Court no longer needs to hear all evidence again to reach a new decision.
Conviction appeals will now be decided on transcript of evidence from original hearing with further evidence received only if the County Court considers it relevant. Witnesses and victims will not be required to “suffer through the traumatising process of providing evidence for a second time during the appeal proceedings”.
The de novo appeals against final orders made by the Family Division of the Children’s Court will also be abolished in favour of the new reforms.
Also getting a change up are sentence appeals, which will now be determined on the evidence and materials already before the court and may only be allowed if the County Court finds there are substantial reasons to impose a different sentence.
The AG’s office said the magistrate’s reasons for the original sentence must be taken into account when considering whether to approve the appeal process.
The new laws will create a second or subsequent right of appeal of convictions for the indictable offences, which will allow the judicial system to determine whether there is a substantial miscarriage of justice and whether a prisoner should be retried.
“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,” the AG explained.
A second or subsequent right of appeal will allow a convicted person who has already 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 their case meets strict legal criteria.
“Convicted persons will now have a right to appeal their conviction if fresh, compelling evidence of a potential substantial miscarriage of justice comes to light – and the court rather than politicians will consider that appeal,” Ms Hennessy said.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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