Being convicted of a crime, regardless of how serious that crime is, can be extremely distressing and confronting for an accused. These feelings are heightened when the circumstances of that conviction appear to be unfair, or the result of external prejudice, which may have caused a miscarriage of justice. In Victoria, conviction and sentence appeals follow strict rules and deadlines, which are explained in detail here

However, it is important to understand that there are other options available, should a person’s initial appeal be unsuccessful. These options depend on the circumstances of an individual case and the purported grounds for appeal, such as whether the appeal is based on fresh evidence, or whether the circumstances of the conviction demonstrate a substantial miscarriage of justice. 

Fresh and Compelling Evidence Appeals

Following the highly publicised appeal of Faruk Orman, which our office appeared in, Victoria’s Criminal Procedure Act was amended to empower the Court to grant leave to appeal if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal. It must allow the conviction to be appealed if it is satisfied that there has been a substantial miscarriage of justice.

New and Fresh Evidence

The law distinguishes between the purpose of appeals between ‘fresh evidence’ and ‘new evidence’. The term ‘fresh evidence’ refers to evidence that was not available to a party in the exercise of reasonable diligence at the time of the trial (Bowden v The Queen (2017) 54 VLR 135). Conversely, evidence which was available in the exercise of reasonable diligence is characterised as ‘new evidence’ (Lawless v The Queen (1979) 142 CLR 659. For appeals against conviction, there are four elements that an appellant must satisfy for ‘fresh evidence’ grounds to be considered. These are:

  • The fresh evidence is ‘admissible evidence’;
  • The fresh evidence is ‘fresh evidence’;
  • The fresh evidence appears ‘credible or plausible’; and
  • The fresh evidence has ‘sufficient relevance and cogency’. 

These elements are important and form the typical basis for an appellant bringing their case before the court. However, these requirements are not rigid or absolute. The fundamental question that the court will ask is whether, in light of the fresh evidence, there has been a substantial miscarriage of justice (Weng v R [2013] VSCA 221. That is, that the court may find a miscarriage of justice if there is a significant possibility that the fresh evidence, if believed, would have led the jury, acting reasonably, to acquit (Bowden v The Queen (2017) 54 VR 135; Visser v DPP (Cth) [2020] VSCA 327). 

In contrast, in considering ‘new evidence’ appeals, the court will consider whether the new evidence shows that the appellant is innocent or raises for the appellate court a reasonable doubt about the appellant’s guilt. In assessing whether the evidence raises a reasonable doubt about guilt, the appellate court undertakes essentially the same task when there is a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence. The appellate court must review the whole of the evidence (including the new evidence) and decide whether, if the new evidence had been before the jury, the jury must have had a reasonable doubt about guilt. 

Ultimately, the difference between the test for fresh evidence and new evidence is that when evidence is ‘fresh’, the court is deciding whether the jury might have had a reasonable doubt if the evidence had been led. In contrast, the test for new evidence is whether the jury must have had a reasonable doubt if the evidence had been led. 

Petitions & Royal Prerogatives of Mercy (Victoria)

An alternative option for conviction appeals where there is new evidence or other exceptional circumstances that manifested into an unfair trial wherein there was a potential miscarriage of justice is a Petition for Mercy. In Victoria, any person who is convicted on indictment may petition the Victorian Attorney-General for an exercise of the Royal Prerogative of Mercy (also known as a Petition for Mercy) and the Attorney-General may either:

  • Refer the whole case to the Court of Appeal; or
  • Refer any point arising in the case to the judges of the Trial Division of the Supreme Court (per s327 of the Criminal Procedure Act)

Appeals pursuant to Royal Petitions for Mercy are fundamentally different to regular conviction appeals. 

This is because, if the Attorney-General refers the whole case to the Court of Appeal, the Court must hear and determine the matter as if it were an appeal by the petitioner following a grant of leave and is not bound by any previous decision dismissing an appeal or refusing leave to appeal. Moreover, during the appeal, the petitioner is not limited to the ground listed in the petition. This means that they can expand on their grounds or raise additional grounds without a further reference from the Attorney-General, or without seeking leave of the Court of Appeal. Essentially, under this avenue of appeal, the appellant is less confined to normal procedures, as the Court is tasked with discerning whether a substantial miscarriage of justice has occurred. While the court is not bound by an earlier decision, it will only re-adjudicate on the grounds that an appellate court has previously contemplated if there is some substance that makes review essential or wanted. It should be noted that a petition for mercy is available in respect of conviction or sentence and may even be brought by a person who pleaded guilty. 

Royal Pardons (Federal)

Official governmental pardons are only available for federal offences. This is similarly known as a Royal Prerogative of Mercy, which is a discretionary executive power derived from section 61 of the Australian Constitution. During this process, the Governor-General acts on the advice of the Attorney-General. The test for an exercise of the Royal Pardon is that the convicted person is:

  • Morally and technically innocent in respect of which the pardon is sought, and that the offender has no remaining avenue of appeal against their conviction; or
  • Morally and technically innocent of the offence, and there are exceptional circumstances justifying the grant of a pardon despite the failure to meet the required standards of the first ground, taking into consideration the need to respect the separation of powers between the executive and the judiciary.

If the petitioner can substantiate their claim under this test, the Royal Pardon may be exercised in a number of ways. These include:

  • The grant of a free, absolute and unconditional pardon (a full pardon)
  • The grant of a conditional pardon
  • The remission or partial remission of a penalty (e.g., a sentence)
  • Referral to a court of appeal
  • The ordering of an inquiry.

It should be noted that pardons are extremely rare and difficult to substantiate.

How Galbally Parker Lawyers Can Help

Fresh and new evidence appeal, pardons and petitions for mercy are inherently complicated. They require experienced appeal lawyers to dissect and analyse the evidence available and the newly acquired evidence to determine how such evidence may have impacted the trial. At Galbally Parker, our Melbourne lawyers aim to get our clients the most appropriate sentence possible and ensuring that their rehabilitation is prioritised. Contact us today to find out how we can help.