The Justice Legislation Amendment (Criminal Appeals) Bill 2019 was passed by the Andrews Government in 2019 with the changes coming into effect as of July 1 2020. The key change of this bill was the abolishment of De Novo appeals.
What are De Novo Appeals?
De Novo appeals allow a appellant to challenge their conviction or sentence, imposed in the Magistrates Court, in the County Court. This means that when the appeal is brought before the County Court, all submissions and evidence are heard as if the matter was being presented for the first time. The decision of the Magistrate, witness statements and submissions from the original matter are not taken into consideration. It is a completely fresh hearing.
What do the changes mean?
Starting from 1 July 2021, new legislation will come into effect which will fundamentally change the ability of appellants from the Magistrates’ Court to appeal the result of their matter to the County Court. Consideration for appeals will be determined by the court as outlined below.
Conviction Appeals
If the appeal is against a conviction or finding of guilty in the Magistrates’ Court, the appeal will be determined on the basis of the transcript of evidence and the submissions made during the original hearing. New or additional evidence will only be considered if it is the interests of justice, which will be a matter ultimately determined by the Judge.
Additionally, the ability to examine, cross-examine or call new witness will only exist if the Court has granted leave. Any application for leave to examine, cross-examine, or call new witnesses must satisfy the threshold of being in the interests of justice prior to being granted.
Sentence Appeals
If the appeal is lodged against the sentence imposed by the Magistrate in a matter, the appeal may only be determined on the evidence and materials presented before the Magistrate at the initial hearing of the matter.
This means that appeals against sentence will only be considered if the County Court determines that there is a ‘compelling reason’ to impose a different sentence, such as in cases where the sentence imposed is considered by the County Court to be manifestly excessive. Accordingly, it is essential that Magistrates’ Court matters are properly prepared and conducted because the safety net of producing more evidence in support of a more lenient sentence has been removed.
Miscarriage Carriage of Justices
The new legislation reforms also allows for substantial miscarriages of justice to be handled with more transparency, with the introduction of a second or subsequent right of appeal of conviction for indictable offences, in limited circumstances. This amendment to the Criminal Procedure Act 2009 came about after our office appeared in the ground-breaking case of Faruk Orman.
Prior to this reform if fresh evidence was discovered, a convicted person who had exhausted all their appeal rights could only seek to have their conviction overturned via a Petition for Mercy. This was the case for Faruk and now, as a result of his case and the change in legislation, appellants are not reliant on politicians to refer them to the Court of Appeal.
The creation of a second or subsequent right of appeal now provides a convicted person, whom has exhausted their appeal rights, with an avenue to appeal only if fresh and compelling evidence emerges that shows that a substantial miscarriage of justice has occurred.
It is important to note that pending appeals and appeals filed prior to the commencement date of the new legislation will not be affected by the above changes.
