Page 1187 - Week 04 - Wednesday, 10 May 2023
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The test for allowing an appeal will be the same, except for the requirement that there has been a substantial miscarriage of justice. This is to ensure not only that there are no undue barriers to bringing an appeal in the first instance, but also to prevent vexatious and untenable appeals. This is consistent with approaches in South Australia, Tasmania and Victoria.
When an appeal is allowed, the bill will require the court to make orders to set aside the conviction or finding of guilt and either order a verdict of not guilty to be entered or order a new trial or hearing. The bill will adopt the existing powers of the Court of Appeal when it orders a new trial under section 37P of the Supreme Court Act to ensure consistency in court powers for any type of appeal. The court’s existing powers in relation to granting bail under the Bail Act 1992 will apply equally to the new right to appeal.
I note that, although the new right to appeal will engage rights under the Charter of Rights for Victims of Crime in the Victims of Crime Act 1994, victims’ rights will apply equally to the new right to appeal as they do to other criminal law proceedings.
It is difficult to estimate what proportion of convictions in Australia may be wrongful convictions. In other jurisdictions across Australia where a similar right to appeal has been introduced, the number of successful appeals has remained low. But, where they do occur, we can understand the impact of correcting a wrongful conviction and the types of people who are most affected by them.
It is important to acknowledge that wrongful convictions especially impact Aboriginal and Torres Strait Islander people and people with disability. Aboriginal and Torres Strait Islander people are already over-represented in the criminal justice system, and that includes wrongful convictions. A study in 2015 found that Aboriginal people accounted for 15 per cent of the acknowledged wrongful convictions in Australia— nearly five times higher than the proportion of Australia’s total population who identify as Aboriginal and Torres Strait Islander.
This bill will ensure that, where new evidence comes to light that suggests a conviction may be unsafe, people who have been convicted or found guilty of an offence have the opportunity to seek leave to appeal it, even if they have exhausted other avenues of appeal.
This bill supports the right to liberty and security of person, the right to a fair trial and rights in criminal proceedings, and will help make our justice more fair. I commend the bill to the Assembly.
Debate (on motion by Mr Cain) adjourned to the next sitting.
Biosecurity Bill 2023
Ms Vassarotti, by leave, pursuant to notice, presented the bill, its explanatory statement and a Human Rights Act compatibility statement.
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