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12 March 1991 - Current

 
JUSTICE LEGISLATION AMENDMENT (CRIMINAL APPEALS) BILL 2019
Page 4059
31 October 2019
ASSEMBLY Second reading Martin Pakula
Mr PAKULA (Keysborough—Minister for Jobs, Innovation and Trade, Minister for Tourism, Sport and Major Events, Minister for Racing) (16:09:06): It is somewhat unusual for me to rise to speak on this bill. I still have a mildly Pavlovian reaction when I hear the term 'Attorney-General’ used; sometimes I almost feel like jumping to my feet. But I have actually been reasonably resolute in staying out of my old patch, as I think is appropriate, for the last 11 months. But I think in regard to this bill I do have some experience to impart in support of the bill, and it gives me pleasure to do so. I want to spend just a couple of moments, first of all, in regard to the reform relating to de novo appeals, and I want to congratulate the Attorney-General for effectively resubmitting this reform to the house. As the Minister for Corrections noted during his contribution, there was a de novo appeals bill that was brought before the house prior to the 2018 election. As I recall, it passed this house; I think the Minister for Corrections is indicating that that is correct. It passed this house but it lapsed prior to being able to pass the other place at the conclusion of the 58th Parliament. It was important work then and it is important work now. Many of the changes that we make in this place, whether it is changes to bail, changes to the way community correction orders are dealt with or changes in regard to those who assault our emergency services workers, have the consequence—not the aim, but the consequence nevertheless—of increasing the load on our courts. This is a bill that will hopefully move in the other direction by providing us with a more streamlined approach in regard to the hearing of appeals so that they can be dealt with on the basis of evidence that has already been presented to the court rather than having to have all of that evidence dealt with by the court anew. So I congratulate the Attorney-General, and I am pleased to see that that is supported across the house, as it ought to be. I want to make some comments in regard to the other part of this bill, which relates to the second and subsequent appeal against conviction that will become a feature of the law if this legislation passes. I make that comment as a former Attorney-General and as someone who has discussed this reform with other jurisdictions where it has already been put in place. In particular I had discussions about this with former Attorney-General of South Australia John Rau. This second and subsequent appeal has been in place there for some time. Of course, as members would be aware, there is a similar arrangement now in regard to acquittals where there is an opportunity for fresh and compelling evidence to lead to a matter being reconsidered by the court in the event that there has been an acquittal. That has been somewhat of a fetter on the double jeopardy rule, but it has been considered by the Parliament to be an appropriate change, and I believe it to have been so. Likewise, the changes that are being made as part of this legislation will effectively mean that matters that would have previously been considered by attorneys-general under the petition of mercy arrangements under section 327 of the Criminal Procedure Act 2009 will now more likely be dealt with under these provisions—that is, giving people who have been convicted and have lost on appeal a second or subsequent appeal in the event of there being fresh and compelling evidence. Can I say that, as an Attorney-General who dealt with these matters on a number of occasions, this is an appropriate change. In most cases the process that would occur would be that an Attorney-General would simply consider the material before them and then determine whether or not to refer the matter to the Court of Appeal for consideration in any case. This effectively removes the middleman and allows the matter to be considered by the Court of Appeal directly rather than going through a process which by its very nature, even though it should not be, can become political. I make that comment as I re-read a letter that I wrote to the Legislative Council back in October 2017. At that time, when I had denied a petition from Mr Jason Roberts, there was in fact a demand made of me by the Legislative Council for documents—they were wanting to know why I had denied that petition for mercy. Now, as members would know, subsequently more information came forward, a referral was sent by me to former Justice Teague, who recommended that certain matters be referred to the Court of Appeal for consideration, and that matter is ongoing. I do not intend to go into it in any detail other than to say the fact that this matter became the subject of a request for documents by the Legislative Council of the day and the fact that I was required to provide them with correspondence explaining my decision at the time is a demonstration of the manner in which these things can become politicised, and they should not become politicised. I heard a contribution today by the member for Caulfield and I think one by the member for Gippsland South, both of whom effectively suggested that the Attorney-General was introducing this legislation so that the Attorney-General would not have to deal with the inevitable applications that may come out of the Lawyer X royal commission. I would say to those opposite and those that would suggest that motivation on the part of the Attorney-General that I am sure she would reject that as being her motivation, and I would say to them that this is a justifiable and necessary reform in any case. It is far more appropriate, particularly in serious cases where there is an assertion that there is fresh and compelling new evidence, that those matters be considered by the court than be considered by the Attorney-General of the day. Now, to put that in context, the Attorney-General of the day will of course not consider those applications in a vacuum. The Attorney-General will undoubtedly receive advice not just from the department but probably from external counsel as well, and so those decisions are not made in a vacuum. But even in those circumstances, even when advice is received, it is advice on the papers about applications on the papers. There is no way that any Attorney-General in those circumstances can have an opportunity to test that evidence, to test that advice and to test the case in the same way that the Court of Appeal could. The Court of Appeal’s options are manifold. They may involve the hearing of oral evidence. They may involve the subpoenaing of witnesses. They may involve the production of documents. The Court of Appeal in those circumstances will be far better placed to consider the merits of any application by necessity than any politician, even with the support of their department or external counsel. So I think this is an absolutely appropriate change. There have been cases in the past obviously where the pressure has been on attorneys-general to grant mercy or to refer matters to the Court of Appeal, and that is one form of pressure in these circumstances. Equally there is the very real desire of any Attorney-General in these circumstances to not cause unnecessary anguish for a victim or families of victims, and it is why it is overly simplistic to say that it is simply easier for the Attorney-General to refer these matters to the Court of Appeal. That is being put as being an easy way forward for attorneys-general, but it is not the case, because even in making that decision an Attorney-General is knowingly ensuring that there are going to be consequences for the victim even if the Court of Appeal declines to hear the case. So for this matter to be within the province of the courts, within the province of our justice system, if an applicant believes there is fresh and compelling evidence, they will have the opportunity to have that matter dealt with by a judge and tested in the courts. That is appropriate. It removes it from the political contest, and it means that it will get the best possible hearing. That is the way it ought to be. I commend the bill to the house.