Changes to Criminal Appeal Processes in South Australia - Assignment Example

Changes to Criminal Appeal Processes in South Australia Name Institutional Affiliation Table of Contents Executive Summary..............................................................................................03 Introduction ……………………………………………………………………..04 Legislative Changes to Appeals in South Australia..............…………………..04 Comparison of Appeal Processes..........................................…………………...06 The Rationale for Changing Legislation for Appeals in South Australia.…...07 Criticisms of Permitting Multiple Criminal Appeals.......……………………..08 Conclusion …………………………………………………………………….....08 Recommendations..................................................................................................09 References …………………………………………………………………….....10 Executive Summary The criminal appeal processes and rights in Australia have been interpreted as only allowing one appeal process after a conviction has been carried out. It applies to all the states and territories. In 2013, South Australian parliament enacted the Statutes Amendment (Appeals) Act 2013 permitting a statutory right to a second or further appeal. This legislative change is the first of its kind in the country and it is worth exploring it in further details. This report describes SA Statutes Amendment (Appeals) Act 2013 by looking at its provisions. In understanding the effects of this Act, SA legislation that governs appeals is compared with that of Western Australia. Beyond the reasons SA parliament used in enacting this Act, this report concludes by recognising that it is a positive and progressive approach in dealing with cases of wrongful convictions such as Chamberlain v The Queen (1984) and Mallard v The Queen (1994). Introduction For over a hundred years, the criminal appeal processes and rights in Australia have been common in all the states and territories. It has been interpreted that the appeal process allowed is only one after a conviction (Gans, 2012). Critics have on numerous occasions expressed their dissatisfaction with this kind of process as they have failed in protecting the right to a fair trial. Moreover, a single appeal have been criticised for its inability to provide an adequate process for challenging conviction by persons who have been wrongfully convicted as in the cases of Chamberlain v The Queen (1984) and Mallard v The Queen (1994). South Australia attempted to rectify this situation after it enacted Statutes Amendment (Appeals) Act 2013 that brought a statutory right to a second or further appeal (NSW Law Reform Commission, 2015). This report explains the legislative changes in SA to the statutory right to a second or further appeal. It covers Statutes Amendment (Appeals) Act 2013, compares SA legislation and that of Western Australia and the rationale for enacting the Appeals Act 2013 in SA. It also provides a recommendation as to whether other states should adopt the same kind of legislation as that of SA. Legislative Changes to Appeals in South Australia It was not until SA amended its criminal appeal rights in 2013 that Australia had a common criminal appeal rights in all its states and territories. They were only allowing one appeal after conviction (Sangha, Moles, & Economides, 2014). The provision of one appeal after a conviction has been unpopular because it is considered unable to protect a right of an individual to a fair trial. Moreover, it provides no adequate process for a wrongfully convicted person to challenge their conviction. In response to this, South Australia took an unprecedented step by enacting a legislation creating a right to a second or further appeal. Although this piece of legislation gives a reprieve to those who were convicted wrongly, it only affects cases that involve the presence of ‘fresh and compelling’ evidence (Sangha et al., 2014). The Appeals Act 2013 came into effect on 5 May 2013 in SA (NSW Law Reform Commission, 2015). This Act made it possible for SA courts to hear a second or even third appeal in criminal cases. It applies to cases where there is new evidence that points to the possibility of a miscarriage of justice in the earlier judgments. The Full Court can hear a case for a second or subsequent time if the court is fully satisfied that the fresh and compelling evidence should be used in an appeal in the interest of justice to the convicted person (NSW Attorney General Department, 2013). Under the Appeals Act 2013, the court can quash the conviction in case an appeal against conviction is permitted. Furthermore, the court can also direct a fresh trial to be set up or direct a judgement and a verdict acquitting the convicted person to be entered. The Appeals Act 2013 could not have been enacted if the recommendation of the Law Review Committee (LRC) of the parliament of SA would not have been unanimously adopted. In fact, the Act was passed with no one dissenting in both lower and upper houses of the SA parliament (NSW Law Reform Commission, 2015). This scenario may have arise due to the fact that the criminal appeal rights in Australia have never been changed in almost a 100 years prior to enacted of Statutes Amendment (Appeals) Act in 2013 (NSW Law Reform Commission, 2015). Additionally, it may have been because of the combined effects of the absence of a second appeal to a person who the court convicted wrongfully and the high court inability to admit new evidence showing that a person was wrongfully convicted (Sangha et al., 2014). The Act has addressed these hindrances and evidence that would not have been admissible in the earlier trial can be admissible in on an appeal. Comparison of Appeal Processes In Australia and other parts of the world, criminal justice systems have been enjoying societal confidence in that convicting an innocent person is something that is regarded as exceptionally rare (Lanham, Bartal, Evans & Wood, 2006). In Western Australia, the current structures for appealing do not provide many options for persons with claims of wrongful conviction. It also includes those cases where there is new evidence of innocence (Malleson & Moules, 2010). In contrast, SA has allowed a second appeal in a situation where there is ‘fresh and compelling’ evidence. The appellate system has been established to minimise occurrence of wrongful convictions as in the cases of Chamberlain v The Queen (1984) and Mallard v The Queen (1994) and which will be explored later on. In Western Australia and other parts except SA, an automatic appeal based on factual innocence is absent. Appeals that qualify for the legislative right to an appeal are those that are based on law alone (Weathered, 2007). Within one month of conviction or sentencing, appeals must be applied. Legislative provisions in Western Australia do not allow ‘fresh’ evidence that did not exist at the time of trial or uncovered at the time of trial. In SA, the Appeals Act of 2013 allows admission of ‘fresh’ evidence in criminal appeal cases. In both SA and Western Australia, the criminal appeal provisions that set up a right to appeal and grounds of appeal are based upon the Criminal Appeal Act 1907 (UK) (Sangha et al., 2014). Furthermore, in both jurisdictions, a case can be referred to an appeal court for further consideration by the Attorney General due to statutory petition procedure. Injustice and social injury are witnessed when an innocent person is convicted (Wadham, 2001). Criminal procedure and presumption of innocence, until proven guilty among other principles of evidence of law, operates in minimising the risk of occurrence of this injustice (Hamer, 2014). Nevertheless, there is a chance that there was a risk of error in passing a judgement, but it is demanded by the criminal standard of proof that there must be a high probability of guilt in convicting someone. The Statutes Amendment (Appeals) Act in SA is a positive and progressive approach to criminal cases procedures and Western Australia should consider enacting a similar legislation. It gives a chance to many innocent individuals to once again prove their innocence in a court of law by providing new evidence that will exonerate them. The Rationale for Changing Legislation for Appeals in South Australia SA set a precedent in 2013 when it passed Statutes Amendment (Appeals) Act that allowed the convicted to second and subsequent appeals in case there is new compelling evidence. Before the Act was passed, people convicted of an offence had only one chance of appealing, and they had no further legal redress once that appeal have been exhausted even in case new evidence is found (Sangha & Moles, 2014). The change of legislation was deemed necessary in order to give a chance to the convicted to appeal their cases when they find fresh and compelling evidence that could potentially set them free. This will result in prevention of miscarriages of justice and innocent people to be set free while the real culprits face justice for their crimes. The Appeals Act that was passed in SA was aimed at reducing the probability of wrongful convictions. In the case of Chamberlain v The Queen (1984), Lindy and Michael Chamberlain were convicted of the murder of their baby while they were on holiday in the Northern Territory (Brown & Wilson, 1992; Urbas, 2002). They claimed from the start that a dingo took their baby from the tent. The jury scoffed off the claim and convicted them of murdering their child. However, in 1986, a Royal Commission was established to investigate the convictions. Its verdict was that the evidence that was presented in the court supported the notion that a dingo may have taken the baby (Weathered, 2005). In addition, the expert scientific evidence that was presented at the trial contributed significantly to the wrongful conviction of Chamberlains (Edney & Bagaric, 2007). SA saw the need to change its legislation to limit the occurrence of such wrongful convictions. . Criticisms of Permitting Multiple Criminal Appeals Criminal appeals have been found useful in exonerating people who were wrongly convicted by the lower courts (Leo, 2005). However, multiple criminal appeals have also been criticized. A common criticism of multiple criminal appeals has been that the appellate courts also reverse a conviction by considering purely technical reasons (Gans, 2012). It is often said that an appeal offers a criminal one more loophole (Flynn, 2009). Therefore, by providing guilty offenders more and more avenues to appeal their cases, chances are they will recognise a loophole in the criminal justice system. However, several appeals have resulted in the acquittal of many people that were previously wrongly convicted. For example, in Mallard v The Queen (1994), Mallard was convicted of the murder of one Mrs Lawrence at Perth on May 23, 1994 and he unsuccessfully appealed (Moisidis, 2008). He was acquitted in 2005 after he had spent 11 years in custody after it was discovered that the police failed to disclose discoverable evidence and the High court subsequently quashed the conviction of Mallard (Gould & Leo, 2010). It thus points out to the fact that additional appeals protect the rights of those who may have been wrongfully convicted like the case of Mallard and many others. Conclusion For over a century, Australian criminal appeal processes have been interpreted as only allowing one appeal in all its states and territories. In 2013, SA took an unprecedented step by enacting Statutes Amendment (Appeals) Act 2013 that allowed a statutory right to a second and further appeal. It is now possible for SA courts to hear criminal appeal cases for a second or even third time. The Act is a positive and progressive approach to criminal cases procedures and other parts of the country should consider enacting the same kind of legislation. It may be a step forward in dealing with cases of wrongful convictions such as Chamberlain v The Queen (1984) and Mallard v The Queen (1994). Recommendations The appeal process should be changed to provide individuals who are convicted of different crimes a chance to appeal their cases for the second and subsequent times. Wrongful conviction such as in the cases of Chamberlain v The Queen (1984) and Mallard v The Queen (1994) can be overturned by creating legislation that establishes a statutory right to a second and subsequent appeal in Australia. SA took an unprecedented step by creating Statutes Amendment (Appeals) Act 2013 and it should be adopted in the whole country. References Brown, M, & Wilson, P (1992) Justice and Nightmares: Successes and Failures of Forensic Science in Australia and New Zealand, New South Wales University Press, Kensington. Edney, R., & Bagaric, M. (2007). Australian sentencing: Principles and practice. Port Melbourne, Vic: Cambridge University Press. Flynn, A. (2009). Sentence indications for indictable offences: Increasing court efficiency at the expense of justice? A response to the Victorian legislation. Australian & New Zealand Journal of Criminology, 42(2), 244-268. Gans, J. (2012). Modern criminal law of Australia. Cambridge: Cambridge University Press. Gould, J. B., & Leo, R. A. (2010). One hundred years later: Wrongful convictions after a century of research. Journal of Criminal Law and Criminology, 100(3), 825-868. Hamer, D. (2014). Wrongful convictions, appeals, and the finality principle: The need for a criminal cases review commission. UNSWLJ, 37(1), 270-311. Lanham, D., Bartal, B.F, Evans, R. C, & Wood, D. (2006). Criminal laws in Australia. Annandale, N.S.W: The Federation Press. Law Reform Commission 2015, A 'Right to Appeal' Act for Australia's States and Territories, Retrieved 22 April 2014, > http://www.lawreform.justice.nsw.gov.au/Documents/ca08_civil%20liberties%20australia_submission.pdf http://www.legislation.sa.gov.au/LZ/V/A/2013/STATUTES%20AMENDMENT%20%28APPEALS%29%20ACT%202013_9.aspx Read More