Thursday, 31 October 2019

 Ms KILKENNY (Carrum) (11:53): As I mentioned, the bill before us, the Justice Legislation Amendment (Criminal Appeals) Bill 2019, is a bill that is dealing with our current appeals process, and it is going to do this in a number of ways. The first is dealing with appeals from the Magistrates Court to the County Court, and those are appeals on both conviction and sentencing. The second aspect of the bill is dealing with appeals from final orders of the family division of the Children’s Court. I guess the third main element of this bill is dealing with what is known as the second right of appeal.

As I have said, this is quite important and significant legislation. It is also worth noting that a large part of this bill is dealing with making the Victorian jurisdiction consistent with what is happening in other jurisdictions as well, and that is in fact abolishing the right of de novo appeal from the Magistrates Court to the County Court. There are good reasons that this has been done, and I have touched on some of those earlier, but I guess one of the most fundamental principles comes back to the right of de novo appeal, and that is where an accused in the Magistrates Court can seek a right of appeal as of right, and that appeal will be a de novo hearing in the County Court. That actually means that the County Court will hear the matter again in its entirety so that the prosecution has to re-prove its case, all of the evidence needs to be put back before the court and all of the witnesses need to be recalled—so essentially a complete retrial of the matter. Obviously one can easily understand that additional resources are required to run a complete retrial but also the very significant impacts that a retrial will have on witnesses who are recalled and required to come back and essentially retell their entire story again in a different judicial setting.

The de novo appeals are actually something that came out of the 17th century, and one would hope that things have certainly moved on and that our judicial system has certainly modernised and updated since then. A lot of the safeguards that are in place today that were not in place then means that the de novo appeal is no longer necessary and is in fact quite an extensive burden on our judicial system and on a lot of people personally.

The bill puts forward amendments that will mean there will be no right of a de novo appeal from the Magistrates Court for both sentencing and conviction. It will end the use of these hearings in appeal scenarios. This means, as I said, that we will not be re-examining those witnesses and that those witnesses can have certainty and finality on the matters that have brought them before the courts. At appeal the courts will simply re-read the transcripts of the court below and make a decision on the papers. Significantly it will also mean that we are not undermining but we are promoting the significant level of expertise that is already in the Magistrates Court. I think this is a really beneficial development in our judicial system. It is an important amendment which certainly forms part of the overarching and commendable objectives in this bill—which are to deliver a more modern, fairer and more accessible judicial system of appeals in Victoria—and reflects the expectations of our community and the professionalism and integrity of our judicial system. I commend the bill.

 Dr READ (Brunswick) (11:57): The Justice Legislation Amendment (Criminal Appeals) Bill 2019 will make two major changes: the abolition of de novo appeals from criminal matters in the summary jurisdiction and the introduction of a second appeal right to the Court of Appeal in the rare circumstances where convicted persons can demonstrate that there has been a substantial miscarriage of justice. I am going to talk about the former, the abolition of de novo appeals, because this is the proposed reform that the Greens strongly oppose.

The abolition of de novo appeals is contrary to the majority of opinions we have heard from legal organisations, including the Law Institute of Victoria, the Criminal Bar Association and Liberty Victoria, whose articles and submissions have informed many of my points today. Most persuasively this reform was rejected by a comprehensive inquiry by a Victorian parliamentary committee, which was subsequently supported by the then Labor government.

In 2006 the Victorian Parliament Law Reform Committee considered justifications for de novo appeals, whether these justifications continued to exist and the desirability of any changes to the de novo appeals system. The committee consulted widely and examined in detail issues of the summary and the County Court’s efficiency, the impact of de novo appeals on appellants and witnesses and the available alternatives to the system. Importantly the committee also undertook a detailed comparison with New South Wales, which abolished de novo appeals in 1999 and replaced it with the ‘modernised’ system similar to the one proposed in this bill.

This committee in 2006 concluded that the de novo appeals systems provided superior access to justice than alternatives which restricted the scope or grounds of appeal, and that the de novo system delivered these benefits in a very cost-effective manner. The committee expressly indicated that it was not convinced that alternative forms of appeal provided the same level of protection against errors made in rulings of the lower court. The Law Institute of Victoria’s submission on this says exactly the same thing. The committee recommended that the system of de novo appeals be retained in Victoria.

At that time in 2006 the committee’s report was praised by all sides of the Victorian Parliament and was supported by the Labor government. The current Minister for Health said at the time that the inquiry was:

… a very good example of how well the parliamentary committee system can work and how a bipartisan parliamentary committee can consider a particular issue in a great deal of detail and come up with recommendations that are seriously considered by government.

She added, in justifying the Labor government’s support of retaining de novo appeals, that she thought:

… the government response is one that will ensure that our criminal justice system can operate efficiently in this state and that defendants do have access to fair trials.

I bring up this inquiry from 13 years ago and the government’s response at the time not to make an easy political point, but rather to point out that this is a significant change in stance. In fact I would support and applaud a change in stance if it was justified by evidence and if the points made by the committee report were raised by the minister in the second-reading speech and rebutted, but they have not been. If I think about my own training and the received wisdom you learn about in medical school, about one-third of it has probably been subsequently disproved by evidence and it would be wrong to continue supporting those points. So my issue is not that the government has changed its position but that it has simply not made any convincing argument for so doing.

Because this cross-bench inquiry had already examined all of the rather perfunctory reasons raised by the government in the second-reading speech and dealt with them, it is important that the government at least acknowledge this inquiry and the evidence of supporting the retention of de novo appeals. And we should ask why it has not done so. It would assist us as legislators if that had been done. I submit that it is an unfortunate comment on our Parliament that 13 years ago we were all prepared to agree on more than 250 pages of advice based on careful consideration of evidence and that we are now being asked to support the polar opposite. But if we are to make this choice on the assertion of the government, at the risk of doing the government’s job here I am going to point out that indeed things have changed since 2006.

We know, for example, that some of the changes in the last 13 years include that the court system, particularly the Magistrates Court and its workforce, is facing unprecedented demand pressures and case backlogs, particularly in the criminal division. We know that well over a third of people currently in prisons are still awaiting trial and are yet to be sentenced by our courts. We know that even when in custody hundreds of accused each year are still missing court dates because of the demands on prison transport—something as simple as logistics. We know that legal aid is overburdened and in some years operating in annual financial deficit. We know that contrary to their fundamental rights, more and more Victorians are appearing in court without adequate legal representation. This is largely due to the underfunding and under-resourcing of legal aid, which restricts eligibility and restricts the time that lawyers can spend with their clients. That is what makes the abolition of de novo appeals so much more important.

These facts I have stated come from the annual reports of the Victorian courts repeatedly over the last decade. I would add that these reports of the courts—from the public advocate, from the Victorian Auditor-General’s Office—also talk year on year about the increased complexity of criminal cases and the risks, the delays and even the injustices that have occurred as a result of these problems.

Let us now go back to the parliamentary Law Reform Committee’s report which found that the abolition of de novo appeals:

… would almost certainly reduce the efficiency of, and increase costs for, the Magistrates’ Court—

and would make hearings in the Magistrates Court ‘longer and more complex’. The report also found:

… any anticipated gains in the County Court from the proposed change would be outweighed by additional costs in the Magistrates’ Court;

So there is certainly a very strong case that the bill before us may exacerbate the recent problems in our justice system, rather than resolve them. The Law Institute of Victoria stated, for example, that plea hearings will take far longer, with witnesses being called, reports being more routinely relied upon and extensive submissions made to ensure that there is a very proper basis for any subsequent appeal. They argue that court events will vastly increase in number. They also point out that there are regional variations between magistrates in sentencing, something they refer to as ‘postcode justice’, and that this applies not just to the Magistrates Court but to the Children’s Court and will affect children. It will affect people who are under-represented or not represented or poorly represented, in particular: low-income individuals who may just miss out on eligibility for legal aid, perhaps because they have a job; non-English speaking individuals who are unable to present their case or communicate it effectively to the lawyer; and the mentally ill, faced with similar problems. These vulnerable groups—children, low-income groups and the non-English speaking and mentally ill—are all people who rely heavily on legal aid to represent them, a legal aid system which is under-resourced and which therefore relies upon the safety valve of being able to appeal—bearing in mind that almost all of these appeals, at least 90 per cent, are appeals against sentence rather than appeals against conviction.

While it is possible that the opposite is true, at the very minimum the government needs to present that case. We need to be asking these questions and exploring the answers. I hope that it is not the case, but we would not want these decisions to be made with just an emphasis on the political and media imperative. For example, last year, remember that the equivalent government bill to abolish de novo appeals, which made it through this house but not the other house, was called the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018. That bill’s second-reading speech contained the same government assertions about the need to modernise the courts by abolishing de novo appeals. In that speech the government also made an assertion that we urgently need to extend the police powers for outlaw motorcycle gangs to apply to children as young as 14. The then Attorney-General last year said:

This change reflects the unfortunate reality that criminal gangs often recruit vulnerable young people to take part in criminal activity. It is important that Victoria Police has tools to intervene to avoid young people becoming involved in serious and organised crime.

Now, less than a year later, the government has thankfully dropped the proposed laws to imprison children for unlawful association. It is unlikely that the state election has stopped the ‘unfortunate reality’ about young people being recruited into crime, but it is at least a relief that the government feels the important powers needed by Victoria Police last year are no longer necessary. I hope it is a sign that the government is putting the law and order politics that has failed Victorians behind us.

This bill represents a fundamental change to the operation of criminal law in this state. As the Attorney-General counterintuitively argued in the second-reading speech, it is undeniably a system that has served us very well for hundreds of years. There is no emergency here; we have got time to do the work to learn why the evidence reviewed 13 years ago by the parliamentary committee has changed. If the government wants to go against their previous position informed by evidence, we should hear about this. If this is the case—if the matter, for example, was to be referred to the Victorian Law Reform Commission for review—the Greens would be more than willing to reconsider our position based on the findings. Similarly, if legal aid was adequately funded, enabling greater access and preparation time for lawyers in the Magistrates and Children’s courts, there would be less need for de novo appeals.

So this is really about fighting for evidenced-based policy, a non-partisan ideal that all the crossbench and opposition can agree to fight for, because ultimately it leads to the best outcomes for all Victorians. That is why the Greens oppose this bill.

 Ms HUTCHINS (Sydenham) (12:08): Firstly, I want to start, in regard to speaking on the Justice Legislation Amendment (Criminal Appeals) Bill 2019, by thanking the Attorney-General and her staff for their work on the bill and the ambition that they have demonstrated in modernising our appeals system.

Currently, when someone is found guilty by the Children’s or Magistrates court and they appeal that conviction, the County Court must hear all evidence again and needs to reach a new decision. This appeals process is essentially a new, or ‘de novo’, hearing. This current system places an incredible burden on victims and witnesses, who are required to present evidence again, with their evidence to be scrutinised at another time during the appeal proceedings. It also takes up a large portion of the County Court’s time, efforts and resources. And for a victim to have to repeatedly provide evidence, it can be an incredibly traumatising experience.

These changes not only ensure that the appeals system better supports victims, but they also ensure that people who are convicted have access to appropriate justice. In cases where there is compelling evidence of a potential miscarriage of justice, it is appropriate for the judiciary rather than us politicians to consider that appeal in an accessible, transparent and open way.

I am not sure if there are MPs in the chamber that have recently seen the Netflix show called Unbelievable, but it is a very startling account of a true story in the United States where unfortunately there were multiple rapes by an offender. The victims involved were made to repeat and repeat and repeat what had happened to them to the police, the judicial system and even the health system over there, and the trauma that that caused those victims was quite evident through that show. I would not usually refer to Hollywood shows as a way of demonstrating just how this could come about, but the reality is that it is based on a true story, and there are many like true stories playing out here in our legal system where victims can be retraumatised through the actions of the court.

The key changes in this bill signify the government’s commitment to abolish de novo appeals of criminal cases in the County Court. De novo appeals are contradictory, quite frankly, to our modern justice system. Victoria is the only Australian jurisdiction that has retained the de novo appeal process, which has come from the English system dating back to the 17th century, which we have heard from previous speakers on this side.

De novo appeals can also undermine the decisions of magistrates, which in turn affects public confidence in the administration of justice. Our justice system is much more independent and professional than when the de novo appeals were introduced, therefore providing parties with this appeal right can no longer be justified, especially where procedures have evolved substantially in order to maintain adequate safeguards against any wrongful convictions. The current proceedings will be replaced with conviction appeals being decided on transcripts of evidence from the original hearings. Additional evidence will only be considered if the County Court understands it to be in the interests of justice. Additionally, sentence appeals will be determined based on the evidence and materials used in the original court proceedings. After taking into consideration the original magistrate’s decision, a different sentence may be allowed to be determined by the County Court if it finds there are substantial reasons to do so.

This bill also attempts to address miscarriages of justice. Currently, if new evidence is unveiled and a person convicted has exhausted all their appeal rights, the only avenue for them to have their conviction overturned is through a petition for mercy. In these circumstances the Attorney-General of the day then decides whether to recommend a Governor pardon, to remit the sentence or to refer the matter to the Court of Appeal for further consideration. This process undermines the foundations of criminal justice systems.

Having decisions made by politicians without hearing new evidence tested in the courts and without the public having the knowledge of what decisions may be made really does undermine our justice system. This bill also includes reforms that will ensure that these substantial miscarriages of justice are dealt with transparently through the court system and through introducing rights to a second appeal or a subsequent right of appeal of convictions for indictable offences. A person convicted of a crime can only access a second or subsequent right of appeal if they have exhausted their appeal rights and if new and compelling evidence emerges which shows a substantial miscarriage of justice may have occurred. A stringent test does apply, and as set up through this legislation, it provides a correct balance between strong enough to prevent claims without merit while also allowing for faith in the justice system to rectify the miscarriage of justice.

This bill is important because it allows us to abandon the old ways of petitions of mercy being made behind closed doors by executive government and based on legal arguments with formal processes. The decisions made from these processes can be criticised as lacking transparency and hence often diminishing public trust in the decision that has been made.

These reforms mirror changes already in place in South Australia and Tasmania. Changes are also under consideration in Western Australia. These reforms are important for ensuring second appeals are dealt with in an open and transparent court system.

It is commendable that the Attorney-General is taking these reforms seriously, as they go to the very foundations of our democracy—that the executive and judiciary powers are separated so they can operate independently and ensuring that we actively promote public trust in the criminal justice system by creating more transparent judicial pathways to correct injustice.

I do not know how many parliamentarians in this place have had to give evidence before a court, but from hearing from those that have had to do so and from hearing directly from victims myself, I know that it is gruelling and it can be retraumatising. Imagine having to go through the process of doing it not only once but twice—going through every motion, every step, reliving trauma and having to do it again. That is the way the current appeals system works. In some instances if a witness or a victim is unwilling or unable to go through this process of giving evidence again, then the case may not proceed at all. Sometimes in the most awful cases appeals are used to harass and intimidate the victims or witnesses, and unfortunately we have seen this happen over the years in many rape cases.

We as a government acknowledge that many victims and witnesses will experience further anxiety or trauma during the process of a second or subsequent appeals process. There is a balance we need to find between ensuring the rights of the accused person to appeals is upheld but at the same time understanding that witnesses and victims require a sense of certainty about the direction and conclusion of the case, and that is why we are going ahead with these changes. We are committed to improving access to justice as well as mitigating the trauma and stress felt by victims and witnesses through additional appeals processes.

By abolishing de novo appeals we are also allowing police and court resources to be freed up. In Victoria there are on average 200 000 summary criminal matters finalised each year, and that figure is growing. And after balancing the considerations it is clear there is a significant benefit to only having one evidentiary hearing.

We are committed to making the justice system more accessible, more transparent and less burdensome on victims and witnesses. This is why the bill is so important. It really does deliver a modern, effective and transparent system in the appeals processes. It also reflects the community’s expectations that the executive and judiciary branches are independent and separate from each other. A wrongful conviction not only greatly impacts the lives of the people wrongfully sentenced but also seriously impacts their families and the broader community. The bill ensures that our justice system operates with the utmost integrity, transparency and fairness, and I commend the bill to the house.

 Ms SETTLE (Buninyong) (12:18): I rise today in support of the Justice Legislation Amendment (Criminal Appeals) Bill 2019. This bill covers two parts of the appeals process and, as many have stated, is a bill of two halves. The first half is a reintroduction of reforms to abolish de novo appeals. The second half is reforms to introduce a second or subsequent right of appeal.

I am sure that we all understand the importance of criminal appeals and the appeals process in our legal system. They are a crucial part of a fair defence and also provide the prosecution the ability to argue the case for a tougher sentence for an offender, should they feel the sentence handed down was not adequate. The appeals process also allows for errors or injustices to be corrected by higher courts. Our legal system, as thorough as it may be, is still susceptible to error, and for that reason we have an appeals process to act as a safeguard and to ensure that such error is noticed and addressed.

Whilst we recognise that the purposes of the appeals process are in the public interest, we also recognise that the appeals process can be incredibly traumatic for victims and witnesses. As we know, some matters can be prolonged and witnesses can be required to give evidence in court again, often evidence that is traumatic, violent and extremely personal. I do not think that any of us need a medical degree to be aware that the mental health outcomes for victims of crime having to relive traumatic events repeatedly can be dire. In the Ballarat region organisations like CASA, the Ballarat Centre Against Sexual Assault, have been dealing with mental health issues in victims who have had to relive their trauma since 1984. Recently there has been an increase in the numbers requiring assistance in the wake of what can only be described as the clergy abuse crisis that has shaken not just the Ballarat region but many others across the country. I will take this opportunity to once again thank the Premier and the Minister for Prevention of Family Violence, Minister for Women and Minister for Youth for the boost in funding to CASA to cope with the increased demand.

The Andrews government is modernising Victoria’s criminal appeals system. This will mean that victims and witnesses are not put through the trauma of a second trial or made to give evidence again when it is not absolutely necessary. These people have been through enough, and we seek to lessen their burden.

Regarding the abolition of de novo appeals, I will start out by reminding the house that this reform has actually already passed the Assembly. However, it lapsed before passing the Council last year. Currently any outcome of a Magistrates Court hearing can be appealed to the County Court as of right. This means the appeal does not need to be on any specific grounds. These appeals must be heard de novo, which means they are run as a whole new hearing. What this entails is that the judge hears all the evidence afresh and sentencing afresh. Anything already decided on in the lower court is not taken into account. This is inefficient, as it allows defence counsel effectively to treat the magistrates hearing as a trial run. It adds to delays and costs for all parties. Some would even go so far as to say it is a lawyers picnic.

The reason this system sounds out of date is because it is. The de novo appeals system dates back to the 17th century. Here in Victoria we lay claim to being the last jurisdiction in Australia to still have such appeals. We are looking to bring our justice system into the current century. Just a few blocks from my electorate office is the Ballarat Magistrates Court. While I am sure that all courts are busy, regional areas can be incredibly busy, with large geographical areas to cover. The workload of the Ballarat Magistrates Court is immense, so abolishing de novo appeals will have a substantial, positive impact on the court’s resources. This will be welcomed in Ballarat, as I am sure it will be welcomed in many other regional courts.

Under these reforms de novo appeals will be replaced by appeals conducted essentially ‘on the papers’—that is, the County Court will review transcripts of the original hearing and only admit further evidence if it passes an interests of justice test. Where a sentence is being appealed, the County Court will only allow the appeal if there are substantial reasons to impose a different sentence. In other words, there is a threshold to meet. The appellant will need to show that the original sentence was more than just arguably too severe or too lenient before the court will accept the appeal. There are now approximately 3200 de novo appeals every year. This will not only see the number of Magistrates Court appeals drop but it will save a lot of unnecessary stress and trauma for victims of crime.

The Andrews government is also reintroducing reforms to abolish de novo appeals against final orders made by the family division of the Children’s Court. It is important to note that these reforms are fully supported by the Children’s Court and the Department of Health and Human Services (DHHS). This is about ensuring children are not faced with months of uncertainty and instability waiting for cases to be heard all over again. The interests of a child must always be put first, and any child who finds themselves in this situation has already been through enough. These important changes are being made whilst maintaining safeguards. Appeals to the Supreme Court on questions of law will still be possible, and the bill does not change appeals to interim orders of the family division. The bill also does not prevent the Secretary of DHHS from applying to vary orders.

The second part of the bill is the introduction of a second or subsequent right of appeal. This is about modernising Victoria’s safeguards against wrongful conviction. These cases may indeed be few and far between. However, it is crucial that justice is served based on evidence and facts. There are times when new evidence comes to light that proves that a wrongful conviction has occurred. Those cases are currently dealt with behind closed doors through the petition for mercy process. This petition process involves a convicted person writing to the Attorney-General to present evidence. The Attorney-General then seeks advice from the Department of Justice and Community Safety on the merits of the evidence and then either refers the matter to the Court of Appeal for them to hear an appeal, which might result in acquittal or a retrial being ordered, or provides advice to the Premier, who then advises the Governor to either grant mercy or decline the petition. With this lengthy and time-consuming process being carried out behind closed doors, the procedure offers little transparency and can leave someone in prison after a wrongful conviction for far longer than necessary. This bill makes the process more transparent by creating a pathway for fresh and compelling new evidence to be considered by a court with the aim of correcting any miscarriages of justice.

The right to a second or subsequent appeal will only be available if leave is first granted by the Court of Appeal. The court can only grant leave if the evidence is found to be both fresh and compelling. This sets the bar high and means that the court’s time will not be wasted with claims that will not hold water just so an offender can try again. Fresh evidence is evidence that was not presented at the trial for the offence and that could not, even with the exercise of reasonable diligence, have been presented in the trial for the offence. For evidence to also be compelling it must be reliable and substantial evidence which would have eliminated or substantially weakened the prosecution case if it had been presented at trial. We have all seen and heard about cases that have been overturned or about cold cases solved due to new technology such as DNA screening. That is the kind of fresh evidence that would apply.

Even then the applicant must prove that a substantial miscarriage of justice has occurred in their case for the court to allow the appeal to move forward. Examples of a miscarriage of justice would be someone innocent being convicted due to evidence not being available, an improper trial, judicial bias, juror misconduct or witness tampering. A second appeal will only be available for indictable offences. Cases that meet the very high threshold are expected to be very rare, and this is proving to be the case in South Australia and Tasmania where they already have such rights of further appeal.

We are the last jurisdiction in Australia to have de novo appeals. This bill is about bringing our legal processes into line with the rest of the country. Our legal system should deliver benefits to victims, not further victimise them. Our legal system should be streamlined to ensure that justice is served in a timely manner while ensuring safeguards are maintained. This bill achieves these things. I would like to extend my thanks to the Attorney-General for bringing forth these amendments. I commend this bill to the house.

 Ms SPENCE (Yuroke) (12:28): I am very pleased to rise today to add my contribution to the debate on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. This bill will make changes that will modernise and improve Victoria’s appeals processes, with four key changes. Firstly, the bill abolishes de novo appeals from criminal matters in the summary jurisdiction and replaces them with new appeals processes that in most cases will not require victims and witnesses to give evidence again. Secondly, it abolishes de novo appeals against final orders made by the family division of the Children’s Court. Thirdly, the bill introduces a new second appeal right in indictable matters in narrow and rare circumstances where the Court of Appeal is satisfied that fresh and compelling evidence exists and that there was a substantial miscarriage of justice. Finally, the bill empowers the Court of Appeal to refer an issue or matter in an appeal to a trial court for determination.

The right of appeal is a key tenet of our legal system, be it the right to challenge an administrative decision of a government department, a local government planning decision, a traffic infringement or a decision of a court. All of us here will have had constituents come to us and ask how they can challenge a decision, how they can have a decision reviewed or how they can appeal a decision that they do not agree with. In criminal matters this appeal process is particularly important as it provides a safeguard for both the prosecution and the defence. Appeals allow the prosecution to challenge inadequate sentences and also allow errors or injustices to be corrected by higher courts. Both of these purposes are strongly in the public interest. However, appeals can also be incredibly difficult for victims and witnesses as matters are prolonged: they have to go through the trauma of a second trial and they are often required to give evidence in court again. It is for this reason that the reforms in this bill that I want to focus on are those in regard to abolishing de novo appeals.

De novo appeals, as we have heard many times today, are appeals of decisions by magistrates that are heard afresh in the County Court. All of the evidence is heard again, all of the issues are considered afresh and a new decision is made. In these appeals victims and witnesses must reattend court and their evidence is given again. A de novo appeal does not require the County Court to find that there was an error in the summary proceeding for the appeal to take place. It effectively allows an accused another chance to dispute their charges, regardless of whether there were any mistakes made during the original hearing, and it can occur even when the appellant pleaded guilty in the summary court. The de novo appeal process comes from the 17th-century English system of appeals. Unsurprisingly, four centuries later, these appeals are outdated and do not reflect our modern justice system.

It is important to note, as others have, that Victoria is the only Australian jurisdiction that continues to have an ‘as of right’ de novo appeal for all appeals from decisions of magistrates in criminal matters, and this includes appeals against both conviction and sentence. This bill replaces de novo appeals with a rehearing process that requires the County Court to have regard to the magistrate’s reasons for a decision, which is not currently required. In doing so, moving forward, it will provide magistrates with far more guidance than they currently receive, leading to more consistent outcomes. In most cases, both conviction and sentence appeals would also be dealt with by the County Court ‘on the papers’ instead of a full rehearing of the matter. As such, victims and witnesses would not have to go through the trauma of giving evidence and being cross-examined all over again.

For conviction appeals, the bill introduces a new process that requires the County Court to redetermine the case on the transcript of the evidence given at the original hearing. The court will have the ability to receive further information in limited but appropriate circumstances where it is in the interests of justice to do so and in the case of evidence from a complainant, or a child or person with cognitive impairment, in a sexual offence, family violence or assault case if the evidence is substantially relevant to a fact in issue in the appeal. If the offender pleaded guilty or did not appear in the Magistrates Court and a conviction was recorded in their absence, they will be required to seek leave to appeal from the County Court. To assist the County Court to identify appeals that are likely to be abandoned early, the bill also requires the appellant to file a summary of appeal notice and attend a pre-appeal mention hearing if the court requires it. If this does not occur, the appeal can be struck out by the court.

In regard to sentence appeals, the bill introduces a new threshold test whereby the County Court may only allow the appeal if satisfied that there are substantial reasons to impose a different sentence to that imposed by the magistrate. The appeal will be determined on the evidence and materials that were before the magistrate. When deciding whether there are substantial reasons to impose a different sentence, the County Court is required to consider the magistrate’s reasons for imposing the original sentence and the need for a just and fair outcome. The question of what constitutes a ‘substantial reason’ to impose a different sentence will be determined by the appellate court on a case-by-case basis. Circumstances that would ordinarily satisfy the ‘substantial reasons’ test include where the original sentence was manifestly excessive or manifestly inadequate in the case of a Director of Public Prosecutions appeal, which means that it was so far outside the possible range of sentences that it could not have been imposed for the offending and that the appellate court can infer that the sentencing magistrate must have made a mistake when imposing the sentence; or where there is an error of law, such as if the sentencing magistrate identified an incorrect maximum penalty, or imposed conditions on a community correction order that were not available at law.

The bill also abolishes de novo appeals from final orders of the family division of the Children’s Court. These final orders include protection orders, therapeutic treatment orders, family preservation orders and permanent care orders. There will continue to be a right of appeal to the Supreme Court on a question of law from these orders, which allows for the correction of errors. These appeals can be conducted much more efficiently than a de novo hearing of the case. The bill does not change appeal rights from interim orders of the family division. These appeals are heard by the Supreme Court as a rehearing, which allows the Supreme Court to deal with the applications urgently. This is important for these particular appeals because interim orders deal with urgent protective orders for children.

The abolition of de novo appeals from final orders of the family division of the Children’s Court are particularly important as de novo appeals can prolong the instability and uncertainty experienced by children in these matters. This is because de novo appeals cannot be heard quickly. They require all of the witnesses to give their evidence again. This means that hearings can take months before they even get to court. This is really due to the availability of witnesses and courtrooms. At the end of the process of actually getting these matters to court, around two-thirds of these cases are abandoned at the last minute anyway. Protecting the child’s best interests, the possible harmful effect of delay in these cases and bringing stability to the child’s life as soon as possible are the most important considerations in these cases. For that reason, appeals will still be able to be made, but they will be to the Supreme Court and on a question of law.

This bill replaces the de novo appeal process with a modern appeals system which will correct errors. It will apply fairly and consistently to all parties and it will cause minimal harm to victims and witnesses.

I have heard some terrific contributions this morning, such as those from the member for Carrum next to me and the member for Buninyong behind me. I congratulate them on their terrific contributions. I saw there were contributions from others that I did miss, and I look forward to those who are about to kick off as well. I do congratulate the Attorney-General on bringing this bill before the Parliament. I also want to acknowledge the work of the previous Attorney-General, who brought components of this bill in an earlier bill that came to the Parliament and passed this place in 2018. These are really important changes to the appeals process in Victoria. They will modernise the appeals process. They will make for a much fairer appeals process. They will protect those who are most vulnerable within our legal system, particularly children, witnesses and victims, who do not need to go through the retraumatisation of having to give evidence all over again in a higher court. I commend the bill to the house.

 Mr CHEESEMAN (South Barwon) (12:38): I am pleased to rise to speak on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. I have listened intently to a number of fantastic contributions made by some of my Labor colleagues this morning on this. The appeals process is an important element of any modern legal system. Indeed it has been a feature of the Victorian legal system for many, many decades, and it will continue to be an important feature. Often people who have been charged with a criminal activity or a civil matter and who go through the court process might feel that their conviction is in fact inappropriate. That can be for something as simple as a parking fine or as serious as a very serious criminal undertaking. The appeals process really provides both the Crown and those that have been convicted with the opportunity to challenge the outcome of that legal process, and this bill and these provisions that we are talking to today very much modernise and make our courts more effective and efficient.

Often these matters can be exceptionally traumatic for victims and witnesses who have experienced trauma through the conduct of criminal activity, and having to tell and then retell time and time again what they experienced or what they witnessed can of course be incredibly traumatising and can make the process of healing and forgetting that much more difficult, particularly when it is not necessary to review the facts, when the facts are all on the table, the witness statements have been provided and the witnesses have been examined and cross-examined.

When an appeal is launched it should really be on the application of the law, in my view, not on the facts as presented. I think these provisions enable that to happen so that those witnesses, those victims, are not re-traumatised by that process. Not only will it be good for victims and witnesses to not have to retell and relive these experiences but it also means that there will be more resources available for the courts to be able to, in a more timely way, have matters dealt with. Anything that we can do to make our court system fairer and more effective and more efficient generally is a good thing.

Further, removing that opportunity for lawyers to be able to use the lower courts—particularly the Magistrates Court—as a sort of a show trial really where they have no intention of putting all that they have got in the Magistrates Court because they have every intention of going to a higher court through the appeals process, I think is inappropriate. It is inefficient, and whilst it may be something that has been a feature for a long time in our criminal justice system, it makes sense to remove it.

We have seen in more recent times through the royal commission into Lawyer X that quite a number of convictions have been secured by the state, if you like, by the Crown prosecutor, where the evidence that was relied upon was garnered in a way which was manifestly unfair. I suspect there will be quite a number of applications for mercy because of that, and it makes absolute sense that this Parliament legislates a new process, a process that is free from politicians, a process that relies upon a proper process. To me that makes a lot of sense. I think these reforms are profoundly necessary and—certainly from some of the evidence that we have seen presented to the royal commission—this process perhaps should have been done a long, long time ago.

The petition for mercy is relatively rarely used, although I do suspect out of the royal commission there may be quite a number of cases where applications will be made, and that is why these particular measures are so profoundly required. There have probably also been a lot of people that have been charged, convicted and sentenced for particular crimes where new techniques, new evidence, have been developed, and we as a Parliament need to reflect carefully about how we review that, particularly of course the development of DNA as evidence. It is, in the scheme of our criminal justice system, relatively new as we have only been able to use those techniques for perhaps 30 or 40 years. I am pleased that this bill looks at some of those types of provisions.

I am pleased to be able to speak on these matters. It is disappointing that the Liberal Party effectively blocking everything in the Legislative Council denied this legislation in the last Parliament. I have got absolute faith that this Parliament will get it done, and I commend these matters to the house.

 Ms COUZENS (Geelong) (12:48): I am pleased to rise to speak on the Justice Legislation Amendment (Criminal Appeals) Bill 2019 and to take the opportunity to thank the Attorney-General and her team for their hard work and commitment to modernising our justice system and ensuring that it does reflect community expectation. This bill is a reintroduction of reforms to abolish de novo appeals which passed the Assembly but lapsed without passing the Council last year.

It also covers reforms to introduce a second or subsequent right of appeal in very narrow circumstances to modernise the way our system deals with substantial miscarriages of justice. Criminal appeals are an important safeguard for both the prosecution and the defence. They allow the prosecution to challenge inadequate sentences and also allow errors or injustices to be corrected by higher courts. We do hear occasionally outrage over inadequate sentences from communities, and certainly I have heard that on occasion in my community, and the expectation the community has about sentencing and what they see as being appropriate. Modernising that is really important, and particularly important for my electorate of Geelong. Both of these purposes are strongly in the public interest. However, appeals can be traumatic for victims and witnesses as matters are prolonged and they are often required to give evidence in court again. Appeals can go on for very long periods of time. We are modernising Victoria’s criminal appeal system so that victims and witnesses are not put through the trauma of a second trial or made to give evidence again when they do not need to.

Currently any outcomes of a Magistrates Court hearing can be appealed to the County Court as a right without needing any particular grounds to do so. These appeals must be heard de novo, which means they are run as a whole new hearing, with the judge hearing all the evidence afresh and sentencing afresh—that is, not taking into account decisions already made in the lower court. This is inefficient as it allows defence counsel effectively to treat the Magistrates Court hearing as a trial run. It adds to delays and costs for all parties, and crucially it requires victims and witnesses to give evidence in court and be cross-examined all over again. So this retraumatisation of people is something that we need to put a stop to, and that is what this bill will do.

I think we have all seen people who have been traumatised through the court system. I have heard many stories of that, but also the retelling and retelling of their stories, as the member for South Barwon pointed out, is really a traumatic experience to put people through.. Retelling the story also can impact on other people who may need to go through that court experience and make them think twice about whether they will take action or do anything in relation to their matters because of the experiences they see occurring in our court system.

So these reforms are an important modernisation of our justice system that is in the interests of both victims and the efficient operation of a modern, high-volume court system while preserving the important safeguards of a robust appeals process. As I said, there is community expectation that we have a modern system that meets community expectations. Certainly in my community that is made very clear to me when a lot of these matters come up in the media. I imagine that my community would very much support the amendments in this bill.

Under our reforms de novo appeals will be replaced by appeals conducted essentially on the papers; that is, the County Court will review transcripts of the original hearing and only admit further evidence in very narrow circumstances—an interests of justice test. Where a sentence has been appealed, the County Court will only allow the appeal if there are substantial reasons to impose a different sentence. This test will act as a deterrent to sentence appeals lodged as a throw of the dice by an offender hoping to get a few weeks or months shaved off a sentence that might, for example, have been near the top of the range. There are currently about 3200 de novo appeals every year. These reforms are expected to dramatically cut the number of appeals from the Magistrates Court and will spare victims and witnesses the trauma of giving evidence and being cross-examined all over again. I think that cross-examination can be—well, is, in fact—quite traumatic; and again we want to modernise the system so people are not feeling like they are being retraumatised during the court process.

As well as abolishing the de novo appeals from summary criminal matters we are also introducing a reform to abolish de novo appeals from final orders made by the family division of the Children’s Court. These are reforms that are supported by the Children’s Court and the Department of Health and Human Services (DHHS) because they will spare children months of uncertainty and instability waiting for a full rehearing of a case. Stabilising the circumstances for a child in these cases, which involve things like protection orders, therapeutic treatment orders and permanent care orders, is in the child’s best interests. We have a responsibility to do this, to make sure we always have the child’s best interests, and that needs to be paramount.

Safeguards against errors are preserved. However, appeals to the Supreme Court on a question of law will still be possible, and the bill does not change appeals from interim orders of the family division. The bill also does not prevent the secretary to DHHS from applying to vary orders.

Introduction of a second or subsequent right of appeal is about modernising Victoria’s safeguards against wrongful conviction. While such cases are incredibly rare, sometimes new evidence is discovered that shows people have been wrongly convicted. Those cases are currently dealt with behind closed doors through the petition for mercy process. The petition process involves the convicted person writing to the Attorney-General to present evidence. The Attorney-General seeks advice from the Department of Justice and Community Safety on the merits of the evidence and then either refers the matter to the Court of Appeal for them to hear an appeal, which might result in an acquittal or a retrial being ordered, or provides advice to the Premier who then advises the Governor to either grant mercy—pardon the person or reduce their sentence—or decline the petition.

We are making the process more transparent by creating a pathway for fresh and compelling new evidence that shows a substantial miscarriage of justice to be considered by a court. The right to a second or subsequent appeal will only be available if leave is first granted by the Court of Appeal. The court can only grant leave if evidence is found to be both fresh and compelling. This is a very high statutory bar that ensures only cases which are meritorious are considered by the Court of Appeal. This test means that an offender will not simply be able to try again after failing an appeal. Fresh and compelling evidence would need to be discovered to give grounds for a further appeal.

This bill is a really important one—as I have mentioned—for my community as well. I think areas around traumatising victims and people giving evidence being expected to time and time again give evidence in court can have an enormous impact on people. We know that particularly for people who are giving evidence around family violence. We know that the Aboriginal community have not necessarily had the fairest hearings through the legal system. There are lots of challenges for Aboriginal communities and their people, and we know that. A lot of these amendments that are covered in the bill will help assist some of those traumatic experiences that people in our community have had. So I wish it a speedy passage through both houses and commend the bill to the house.

 Mr McGUIRE (Broadmeadows) (12:58): Crime and punishment has been a theme of two bills in this week’s sitting. I noted when the lead speaker for the opposition gave his contribution today he repeated a proposition about victims of crime and the Adult Parole Board of Victoria. I did answer this when he spoke on the previous piece of legislation. He made the call for victims representation to be on the parole board. I just want to absolutely make it clear that that has already been done. The Andrews Labor government has done that. We are putting victims of crime at the heart of the system that we have, so there is no need when we come to a vote later today to do other than vote on the bill. The reasoned amendment that was seeking to address that issue is not relevant because it has already been put into place by the Labor government.

I think that is an important point to make—that the government is committed to protecting victims of crime and placing them at the centre of our reforms. I am happy to make that point really clear to the house for the vote later this day. I think that that needs to be known and understood. That has been the strategy that we have been driving to, and I think that that is in the public interest. It is in the best interests of the system that we have. I just want to make sure that that is not misinterpreted and that that is not reported otherwise outside this house. We need to have this sort of view for advancing the position for victims of crime.

Sitting suspended 1.00 pm until 2.01 pm.

Mr McGUIRE: I want to resume my contribution on the themes of crime and punishment. I do want to make sure that the house is informed that the Victorian government is committed to protecting victims of crime and placing them at the centre of our reforms and reiterate that representatives of victims of crime are already on the Adult Parole Board of Victoria as community members. That has been done. We do not want to see any misrepresentation outside this house on that matter. That is what the advisers have told me. I have checked with them as well, to make sure that is the fact of the matter.

This keeps going back to a regular theme that we have seen too often—about the driving forces that are volatile and overlapping; about race, rights and taxes—from the conservative side of politics. This is what they do. This is what has been going on and has been adopted and adapted from America to here. I remember making a Four Corners episode called ‘Lost in America’ in 1992 about exactly this issue.

You see how it keeps coming back and how the other side of politics keeps wanting to go there. The former Leader of the Opposition said they did not go hard enough on the crime issue at the last election. He is not looking for creative responses, not looking for how we actually address the causes of crime or how we actually achieve crime prevention—all the different strategies that the Andrews Labor government is looking at to try to address these matters. I think that this is a really important issue, because it is about how these matters are used to divide communities. They are not looking at how you actually try to look at the social determinants of life—the three-part overlapping Venn diagram of health, lifelong learning and opportunity. If you have a look at the way the Andrews Labor government has got a whole strategy for right throughout your life—on how to get a better chance, how we connect the disconnected and how we give them that chance—that is what we need to do.

We have legislation: two bills before us in this week’s session and there will be more to come. The two are on justice legislation amendments, and I do want to make sure that we are seeing the subtext of how these issues play out over time, who is actually responding in a creative way—in a way that connects people up, that gives them a better chance in life and that gives them better opportunities—and who is just there to divide and to conquer. That is their game plan.

We have seen how this happens. This is what I am saying. I remember going to California to look at the race riots there and what happened. Then in Texas: did they get the dividend they were supposed to, new industries and jobs? We even ended up at the democratic convention in New York to look at the issues there. So this has been going on for a long time. It is a long-term strategy. It goes way back. It goes back to even the Nixon era, about how to use these matters. That gave me the analysis of what happened under the Reagan White House and how they did all of that. And now you see what is currently happening under the Trump administration as well.

These are issues we need to call out. We need to be addressing them. We need to be looking at: what is the subtext? How are they trying to do it? And here is the point: it is about a strategy; it is a strategy that is increasingly adopted from the US and fast-tracked to here, and then it is just tailored to try to fit the local circumstances. It is that issue. And race is quite often played. It is no longer a straightforward, morally unambiguous force. This is an issue, so we need to be on top of it. That is really what the subtext of this is: to try and fragment and divide.

This is an issue that I do want to bring up again, because you can see that this is how it forms again. This is the argument they have. We have had one substantive interview from the former opposition leader and that is what he said: they did not go hard enough. I have not heard a word from the opposition side to say, ‘No, we don’t agree with that strategy. We want to actually address these other matters’.

Let us see how this plays out. We have put the markers down. We have made the call. Let us see what the response is over the rest of this 59th Parliament in Victoria and see how this progresses. We will be able to weigh and measure the arguments from both sides and see what is done, see who is actually providing opportunity and see who is saying, ‘Here’s how you’ll get a better chance. Here’s how you’ll be able to be a better citizen, make a bigger contribution and not just end up in the criminal justice system. Here are the alternatives’.

I know who is working really hard—which side of politics is working really hard—on these matters. So I commend the Premier, the Treasurer and all of the ministers and parliamentary secretaries who are getting behind all of these strategies, because that is really where we need to be moving. It is also the issue of making sure that we are a big-picture government and ensuring that everyday people see where they fit into that big picture, what the opportunities are that they will have and how we connect it up.

We can do this. If you have a look at how much the population is growing, Melbourne’s north and Melbourne’s west will each be the size of Adelaide soon. This is where we need to look at the investments and make sure that that happens as well. I think that that is really a subtext that has now come to the fore in this debate. It is our duty to call it out, to contest it and to make sure we follow it through, to see what happens when we have the vote on this bill and the other bills that we have debated in this week, to make sure that these issues are not misrepresented.

This is the critical thing we are now in. We have all prospered from the Enlightenment where facts were stubborn and cherished, not alternate. This is the fake news era. We have to actually address it and we have got to be saying, ‘No, no. Here are the facts. Here’s what’s being done’, and stop using fear to divide. That is really the game plan; that is really what it is about. We are on the side of hope; they are on the side of fear. That is what it boils down to—that is what they are doing. How does that then play out? How do you actually give people better opportunities in life, even from before they are born? We must be able to speak to parents when they are going along to get their first cheques and all the rest of it, to connect them into the system.

I was at Holy Child Primary School in Dallas this week. I was talking to the people there about how to do this to try to connect them into the system. We have people who have come from all these different countries and do not speak English as a first language. How they connect up is really critical so that the parents know what to do.

Then we have invested in GenV, the Generation Victoria project. Last night we had medical researchers in this Parliament, some of the best and brightest people not just in Victoria but internationally. Kathryn North, who is leading the Murdoch Children’s Research Institute, and all her team were here. We are looking at how we are going to follow the life patterns of people and give them a better chance.

 Mr DIMOPOULOS (Oakleigh) (14:09): It gives me pleasure to speak on this important bill and to follow the contribution of the member for Broadmeadows, because I too heard some of the comments made in the contribution of the member for Caulfield. I heartily agree with the member for Broadmeadows in terms of the narrative of those opposite and our narrative. Public policy generally is complicated and justice is even more complicated. The instant reaction people have when something unjust happens—there is a crime and there is a victim—is, ‘Please make this go away, please increase penalties, please increase police presence’. We have done all those things, but it is more complicated than that. We have increased police powers in the right areas and we have increased the number in the force by more than any other government in the 160-odd-year history of Victoria Police. I will get back to that.

As the member for Broadmeadows said eloquently in his contribution, that is a base motive of fear where you say, ‘Something is insufficient. You need to make me safe’ by just doing a whole bunch of stuff which in essence, if you think about it logically, does not help. I will give you an example of that. In the previous Liberal-Nationals government the then Attorney-General and the government changed a whole range of provisions in the criminal code to effectively catch a whole bunch more people in the net of the criminal justice system. You had this around breaches of bail and a whole range of other things. We have made some more nuanced changes in our term, but they had some really blunt changes.

Not in and of itself, but that was a large contributor to what we saw: the biggest recidivism rate increase over four years that we have ever seen. I think it was close to 50 per cent—45-odd per cent recidivism. That is bad public policy. I get the narrative that the member for Broadmeadows was talking about, which is that what they on the other side do is push fear and fearmongering and say, ‘We’ll keep you safe’—so you create the monster and then create the    solution, which is, ‘We are the solution’. If you look at the statistics, the problem is that they were not the solution. To follow that analogy, they created more monsters, effectively, because they recycled people in and out of the criminal justice system through recidivism.

If the Victorian people are looking for a government that is strong on victim support, strong on the supports and compensation and a whole range of other regimes that surround and should support victims but also has a balanced public policy approach to interventions in the criminal justice system, then they need look no further than this government.

Today in question time the Minister for Corrections got up and talked about restorative justice. We in the Labor Party have a very proud legacy—we can do more and we will be doing more—from the Bracks-Brumby governments, and probably beyond; I cannot confirm that. We are continuing that in this government in terms of the work of the current minister in restorative justice. That keeps the community safe, and it keeps those young offenders or any offender from a life of crime.

In relation to investing in victims of crime, we have invested $48 million in additional support for victims. That is a 79 per cent increase on what was available to victims before we came to office. That is a real public policy response. We do not have to go and beat our chests about it. It is stuff we do, and we do it effectively and quietly, with victim support services and families and others advising us along the way. We have also committed $3.2 million in this year’s budget to establish a team to design the new financial assistance scheme stemming from the review of the Victims of Crime Assistance Tribunal, VOCAT. There are about 100 recommendations in that review and we are starting the important work of reviewing that. It is led in part very capably by the fairly new victims of crime commissioner, Fiona McCormack, formerly of Domestic Violence Victoria. We are doing that hard work.

We have amended a whole range of bills in this Parliament already and definitely in the last Parliament. I have spoken on several, as have other members on both sides, whether it be about giving more support to people who do not have the capacity to appear in trials without that extra support—a third person, so to speak—victim charter changes, a whole range of changes when it comes to child safety standards and supporting families and victims to be heard more appropriately and to be protected.

This proposed clean-up change in this bill is not just for victims of course but is heavily focused around victims too. One of the key changes this bill proposes is getting rid of de novo appeals from the Magistrates Court to the County Court. Part of the rationale for that, as other speakers have said, is so that we do not retraumatise not just the direct victims but also their families through having to appear again and go through all the processes of the court case in a higher court, as if the first hearing did not matter. This bill seeks to change that, as other jurisdictions have, by allowing the higher court, in many instances the County Court, to conduct the initial investigation, so to speak, or initial inquiry about whether there should be an appeal on the papers and then take a lot of the outcomes of the Magistrates Court hearing into consideration in the new hearing. I think that is valid not just for victims but also in my view for defendants because they still have the opportunity of appealing under certain provisions that this bill seeks to implement—that is, having evidence that is fresh and compelling and warrants an appeal.

The changes here are not unique, either the de novo changes or the changes that other speakers have spoken about which are about the opportunity for second or further appeals if new evidence comes to light in serious matters, not in summary offences as applies to de novo changes we are making here. They are not unique; they exist in other jurisdictions.

I was in the chamber when the member for Brunswick mentioned his reservations. I do not want to misquote him because I was here for only part of his contribution. He talked about a parliamentary committee report over a decade ago which in his view validated the existing arrangements where you can actually just go to the County Court or the High Court as if you had not been to the Magistrates Court. My response to the member for Brunswick would be that effectively every jurisdiction in Australia, every Parliament, has a different view. This Parliament I am hoping will have a view that this change is an important change. We have engaged stakeholders in this from both sides in terms of the contestability of a court case for the defence and prosecution. We have done serious work on this internally in the department and across the Victorian community. This is an important change. It makes sense for a whole range of reasons, including the unending workload of the Victorian courts.

Mind you, having said that, the Magistrates Court is probably the workhorse of the Victorian court system—it deals with an enormous amount of work—but the County Court would probably come after that, I imagine. So anything that lightens a bit of the load and makes it more efficient for both parties, the prosecution and defence, and all their families—and all the other arrangements; you have all the court support staff—by getting through case loads more quickly because they are not repeating the entire evidence in a manner that a previous court has already heard, is an effective change, in my view. I commend the Attorney-General on the work that she has done, and I commend the bill to the house.

 Mr PEARSON (Essendon) (14:19): I am delighted to make a contribution on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. It is always a great pleasure to follow the member for Oakleigh, my very good friend, with his eloquent contribution. The bill before the house is an important bill because it is seeking to make further reforms to modernise the justice system. I think that from the point of view of efficient and effective public administration we do need to try to constantly look at reforming and improving public administration in this state, and that will obviously necessitate us bringing forward legislation like this from time to time to improve its efficiency.

I think we are at a time now when we need to try to find ways where we can more effectively administer justice in Victoria, and the bill before the house looks at making some very sensible reforms. They are sensible reforms in a public administration sense, in the sense that they will streamline the appeals process, which I think is a very important initiative. They will also protect victims of crime from being required to continue to relive their experiences by giving sworn testimony about the nature of the offences committed against them. So I think this is a really important initiative, because we are ensuring that we are protecting victims and that we are looking at a more efficient and more effective justice system here in Victoria.

I am also mindful of a seminar I went to in the 58th Parliament over at St Andrews Place where Jerry Madden, who was a former Republican legislator from the state house in Texas, gave evidence about some of the reforms that were occurring in Texas over a long period of time. Madden’s contention was that in Texas they had a situation where the state was building more and more prisons, it was not doing anything in terms of addressing the rate of recidivism and it was costing an awful amount of money. Madden hooked up with a Democrat and they started instituting significant reforms. What they did was they tried to have a really deep dive and a tailored approach to prisons. They identified which prisoners were—in his words—knuckleheads and which prisoners were prisoners who you had every right to be fearful of. In his case what he said was that in relation to the knuckleheads it was about having deep, intensive work, training and therapy in prison to try to make sure that those prisoners had the opportunity of acquiring skills so that when they left prison they would be in a position to find meaningful work and employment. As a consequence of those reforms Texas has had a fall in its rate of recidivism, the crime rate is dropping and they are shutting down prisons.

I say that because I think that talks a bit about the need to constantly refine and constantly reform the administration of justice. I wish I could say to you, Speaker, that I read and I understood Foucault in a deep and meaningful way. Sadly, it was a bit beyond me when I tried.

Mr Scott interjected.

Mr PEARSON: Well, it was a long time ago. Maybe if I picked up Foucault now I might have a deeper appreciation. But I think it is about talking about the way in which prison reform has changed and evolved over the course of time and it is about making sure that we make these sorts of investments and we try to make sure that we get the balance right between ensuring that justice is fairly administered in the state of Victoria, that the rights of victims are protected and that we try and look at having meaningful engagement with prisoners to reduce the rate of recidivism. If you look at the cost of simply locking people up and the impact that it has for the individuals involved—if they become frequent flyers in the justice system—it is an enormous burden to the taxpayer and also often results in prisoners leading diminished lives. I think it is about trying to give people that opportunity and that hope to go off and do other things.

In previous contributions when I have spoken about this I have spoken about my uncle, who grew up poor, who got involved in a car stealing racket in the 1950s and ended up getting locked up in Pentridge. My grandmother took on a significant amount of debt to get him a very good barrister, and he got out on appeal. In the case of my uncle he was fortunate enough to get an apprenticeship with a local bus line, and he went on and was a very successful businessman. He became quite wealthy, he owned a very successful motor wrecking business and he was a passionate, lifelong voter for the Liberal Party, much to my grandmother’s shame. But he was given a chance. He made some errors in his youth—admittedly, it was not a violent crime; it was a property crime—but someone saw in him something that warranted their giving him a chance, and he made the most of that chance. He passed away a number of years ago now, but he ended up leading a meaningful and fulfilled life. He employed people, he paid his taxes, he made a contribution, he was president of the local footy club—he lived a really full life. But he did so because he was given a chance. I think that in this day and age, where we are in a position that we can look at making these sorts of legislative changes and reforms, we can try and ensure that people are afforded that opportunity.

A bill like this just makes sense because it is about the efficient administration of the justice system here in Victoria. It is about protecting victims’ rights and it is about ensuring, again, that we try to segregate those prisoners as the ones we should be frightened of and the ones who could have the opportunity of being rehabilitated and could be redeemed.

I do note that it is a Thursday afternoon, and Thursday afternoons in this place tend to take on a bit of a life of their own. It is interesting, and I find it somewhat curious that we have had government speaker after government speaker on this bill, being a justice bill, but I think that only two members of the opposition have spoken on this bill. I raise this and I draw this to the house’s attention from the point of view that we went through what I found at times was a distasteful election campaign last year, which was a strong law and order campaign run by the member for Bulleen. At times I felt very uncomfortable with some of the language that was being used and some of the rhetoric that was employed, particularly because of the way in which it made members of my community feel, particularly African-Australians. I did not think that it did the Parliament or the political class any service at all having some of that language used over the course of that time.

Now I raise this just from the point of view that those opposite will often talk about their credentials when it comes to—

Mr Morris: On a point of order, Speaker, it may be helpful if the member returned to actually debating the bill rather than philosophising about the last election and views that may or may not have been right at the time.

The SPEAKER: I have been listening to the debate since the lunch break, and members have been speaking broadly about law and order issues related to the bill. So I am prepared to let the member continue, but I just remind him to relate his remarks back to the legislation before the house.

Mr PEARSON: Thank you, Speaker, for your guidance and your ruling. I will come to the point I was trying to make, and I appreciate that I may have been laborious in my intention. I find it curious that the opposition has only fielded two speakers for a bill that relates to matters of justice given the fact that those opposite often campaign heavily on issues around sentencing, law and order and lock them up and throw away the key. I find it curious that when there is an opportunity for those opposite to, again, come forward and make contributions on these matters they are conspicuously absent. Now perhaps members opposite are busy off attending to other affairs that might involve the Liberal Party room—one only knows.

I note that the member for Mornington is here—he is the sole representative of the opposition here actually. I find it curious that there is an opportunity for those opposite to come in here and parade their credentials on these matters and to put forward their views, and they are absent. But not to worry, the Labor government is committed to ensuring that we have a fair justice system, and I commend the bill to the house.

 Mr FREGON (Mount Waverley) (14:29): It is my pleasure to stand and speak a little bit on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. I should probably start by acknowledging and showing our great thanks to the Attorney-General for her very dedicated work on not only this bill but also the Justice Legislation Amendment (Serious Offenders and Other Matters) Bill 2019 we had earlier in the week, which I also had the pleasure to speak a little bit on. It shows a commitment from the Andrews Labor government to strengthening our justice system to better protect our communities.

Of course my community of Mount Waverley is the home to I guess the first door to our justice system for many of our justice workers, and that is the police academy that is in my area, which is, as we all know, currently completely full. We are putting 3135 police extra into the field. Obviously the justice system we are talking about today is the other end of the process from the police—also those workers do a great job—but this bill is about the appeals and the removal of de novo appeals from the Magistrates Court to the County Court.

I should probably also refer quickly to some of my colleagues who have given some very, very educational offerings, especially the member for Broadmeadows, who referenced the usage of fear in our politics in regard to justice by some. I think it is worth saying that highlighting fear is not a solution to problems in our society that end up in our justice system. It is always better to think of ourselves as part of the solution, and spreading fear is not that, and if you are not part of the solution, then you are part of the problem. I guess I just sort of put that forward as something we should all remember. Also, the member for Oakleigh gave a very good contribution, and the member for Essendon made a little family connection to the benefits of a working justice system, which was very interesting to hear.

Essentially the bill in front of us has two halves. The first half, as I said, is to abolish de novo appeals. This measure passed the Assembly previously but lapsed, so here we are again. Let us hope it has a speedy passage through the other part of the house, presuming that we can pass it through this one; I think we probably will be able to. The other half introduces a second or subsequent right of appeal. This is designed to, in very, very narrow circumstances, modernise the way our system deals with miscarriages of justice.

A de novo appeal, as others have said, is in effect retrying the whole case all over again. I think not only is this costly in time and resources for our courts but it also can, as others have said, be very stressful for those victims or people related to the crimes in other ways. I think this should be reduced.

If I hark back to earlier in the week when we were talking about serious offenders, there was a line of conversation coming from the other side about victims and being supportive of victims in every which way we can, which I think the government shares. Removing de novo appeals in this way is continuing that expression of consciousness that we are aware of the fact that victims will suffer by having to retell their stories again. I see this is a good step forward. It is also worth mentioning that we are the last state in the nation to have these de novo appeals.

Currently any outcome of the Magistrates Court can be appealed to the County Court as a right without needing any particular grounds to do so, which I found surprising when I was researching this bill. Those matters must be heard as new or de novo proceedings. Under the reforms these appeals will be replaced by appeals conducted essentially by reviewing transcripts, and further evidence will only be admitted when it is in the interests of justice and passes that test. This test of being in the interests of justice will act as a deterrent to sentence appeals lodged by those offenders who are just trying their arm to see if maybe, if it works, it will be better for them. I think wasting the court’s time, the court’s resources and the state’s resources for someone who is just trying to get one over us does not serve anyone, including the person who is trying it on, I would argue.

So not only are we removing de novo appeals from the Magistrates Court, but we are also reintroducing the reform to abolish the de novo appeals from final orders made by the family division of the Children’s Court. These reforms, it should be noted, are supported by the Children’s Court and the Department of Health and Human Services. It will spare children months of uncertainty and instability in waiting for a full rehearing of the case.

I think sometimes when we consider our justice system and we look at the front page of the Herald Sun now and then and see cases where people raise eyebrows about this or that, that is fine—the media is there to shine a light on things that might not make sense or stand out—but I think it is important for us to understand that 99.9 per cent of cases that are tried in our courts go without the blinking of an eye. Our judiciary, clerks and administration work tirelessly, work very long hours, to do the job—their part of our system—just like our police do in their part of our system. We of course are here in the other part.

I think it is also worth mentioning that, in regard to sentencing decisions, I am aware that in cases where the average Joe Blow is put into a court for a moot court situation—and this has been done a number of times by bar associations around the world, but I believe here as well—and they try those cases pretty well as they have done in court, although the popular media tends to say our judges do not do enough, in nearly all cases where that retrial is done we end up with the average Joe Blow actually giving a more lenient sentence than the judge did. I think that would surprise some people, but it is worth considering.

There is another part to this bill, and that is in regard to the mercy test. At the moment there is the channel of being able to go to the Attorney-General in very rare cases. This will be changed in order to go to a panel of judges instead.

Victoria is the last jurisdiction in Australia to have these de novo appeals, and we must protect our victims when possible and when sensible from having to relive whatever experiences they have been through. We support them in that way, we support them in our policing, we support them in our counselling services, and this is the right thing to do. That is why we are all here—to represent our communities for their safety. With that in mind, I commend the bill to the house.

 Mr SCOTT (Preston—Assistant Treasurer, Minister for Veterans) (14:38): As has been noted previously, the Justice Legislation Amendment (Criminal Appeals) Bill 2019 is a bill that deals with principally two matters. One is in relation to the abolition of de novo appeals, which was a matter brought before the Parliament in the last term, passing the Assembly but not passing through the Council last year. The other element is in relation to the introduction of a second right of appeal, which is an attempt to modernise our system in how it deals with a substantial miscarriage of justice.

To turn first to the abolition of de novo appeals, in simple terms ‘de novo’ is obviously a Latin term—my Latin is not particularly good, but ‘of new’, is my memory of it—and it is in a sense a process whereby if an appeal is made to any outcome of a Magistrates Court hearing and the appeal is made to the County Court, that right exists as of right currently without requiring any particular grounds. In terms of the procedures which exist in relation to these appeals, they are heard de novo, which in simple terms means they are run entirely afresh, as a new hearing, with all the evidence being heard afresh and in fact the sentencing to be made afresh, which of course means that they are not taking into account what has occurred previously in the Magistrates Court.

As has been noted by other speakers, and I have to say there have been a number of broad-ranging contributions to this debate covering some very interesting aspects of the judicial system and the process and the aspects of this particular bill, we are the last jurisdiction in Australia to have de novo appeals in such circumstances, and we are following in the footsteps of other jurisdictions in bringing forward this legislation to abolish de novo appeals.

There is a long history of de novo appeals. They date back to the 17th century. There are a couple of issues, obviously, and they have been touched on by previous speakers. One relates, and this is a very important one, to witnesses and persons giving evidence at such appeals and to the traumatic effect—particularly in violent cases or situations where people have been victims of crime—on victims and other witnesses in giving evidence, and this is something that should be taken into consideration by this Parliament. I think this is a positive and strong argument to buttress support for this particular piece of legislation.

There are obviously grounds for the efficient operation of our judicial system, and we do balance within our court system the rights of the accused, the witnesses and the efficient operation of the system itself. I think this bill strikes a reasonable balance because, unlike the de novo process, what will be replacing it is essentially a process where the evidence that was heard in the Magistrates Court is reviewed by the County Court. There can be admission of additional evidence, but that will take place in relatively limited circumstances. There will be an interests of justice test applied.

In relation to the appealing of sentences, there will be a test of whether there is a substantial reason to impose a different sentence. There is a threshold created where the appellant will need to demonstrate that the original sentence was arguably either too severe or too lenient before the court accepts the appeal. This will act as a limitation. That is a conscious decision for a deterrent, whereby offenders could previously in a sense—I think it was referred to by the member for Mount Waverley—chance their arm and seek a reduction in their sentence without there being a particularly high test for that appeal to take place.

In terms of the scale of de novo appeals, the estimate that I have received is that there are 3200 as a rough figure of de novo appeals each year. These reforms will have an effect on the number of appeals from the Magistrates Court. The expectation is that they will reduce the number of appeals from the Magistrates Court to the County Court but really importantly, as I touched upon earlier, spare victims and witnesses the trauma of going over evidence and having to relive difficult and sometimes violent circumstances and being subject again to cross-examination.

When we are examining issues related to the operation of the justice system I think the importance of protecting the interests of victims and witnesses is increasingly—in terms of the deliberations of this Parliament but I would say also in terms of reflecting broader community attitudes—something that is given greater consideration when matters are not just debated but when laws are brought through this Parliament and taken into affect.

I would note that the efficient operation of justice has advantages for both the courts themselves but also for the corrections system, as a former acting Minister for Corrections. Ensuring that there is efficient and timely access to justice through improvement in the efficiency of the judicial process has significant advantages for both those involved in the judicial process and also the court system and the corrections system.

The other significant element of this bill is the introduction of a subsequent right of appeal. There are safeguards within the Victorian system which do not reflect the practices which this bill represents in terms of reform to deal with wrongful convictions. There is a closed door process that exists currently under a petition of mercy process. A convicted person has the capacity to write to the Attorney-General to present evidence. The Attorney-General then receives advice from the Department of Justice and Community Safety relating to the merits of evidence and either refers them to the Court of Appeal for them to be heard on appeal, which may result in acquittal or retrial, or conversely provides advice to the Premier, who can provide advice to the Governor to grant mercy, which can mean pardoning the person or reducing their sentence, or in fact of course decline the petition. These are processes that reflect practice where there is not a clear and transparent process. In order to create a more clear and transparent process there will be a pathway for fresh and compelling evidence that is new and that shows a substantial miscarriage of justice for consideration by a court.

The right of a second or substantial appeal will be granted in circumstances where the availability for leave is first granted by the Court of Appeal. That will mean that the court will only grant leave if evidence is found to be both fresh and compelling. This is a relatively high bar in terms of the evidentiary requirements. This will ensure that only cases which are meritorious are given consideration. Of course this means that this is not just an avenue for people to try again. There will need to be fresh and compelling evidence, as I referred to earlier, that has been discovered to create grounds for appeal.

Mere technicalities will not suffice to show a substantial miscarriage of justice. The definition of fresh evidence is evidence that was not presented at the trial for the offence and even with the exercise of reasonable diligence could not have been presented in the first trial for the offence. For evidence to be compelling it must be reliable and substantial evidence which would have eliminated or substantially weakened the prosecution of the case if it had been presented at trial.

In making final comments, I do think this is an important step in terms of improving the operation of justice. It is always important that we balance the rights of victims, the rights of witnesses, the rights of the accused and the effective operation of the court process, and also that we create processes as principal holders of executive offices performing judicial functions. It does not exist in the current system, as indicated by the petition of mercy process. I think creating a court process is an important and significant reform which we should support.

 Mr RICHARDSON (Mordialloc) (14:48): It is a pleasure to follow the Assistant Treasurer in his contribution and make some remarks on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. I think a number of members have touched on the importance of these reforms and these changes. I want to focus on a couple of key themes: one being the efficiency of our justice system and the burden that we have on the legal corners down the street, and the pressure on our judges is one area I want to focus on; the support from victims informed by the victims of crime reforms that have been forward but also the prevention of family violence reforms and how we support victims; and also as our state and our legal system evolve over time and evidence and technology become better and more accurate that we have flexibilities built in in case any new information comes to light.

The de novo appeal principle predates the state of Victoria. It is long held, it is long running. The notion that 3200 appeals are waiting and are as a matter of right is a huge administrative challenge for our courts to manage. We have seen a number of examples of the burden upon our judges, upon our legal system, and the time that it takes to hear matters. To have an appeal as a matter of right and then for it to be based on substantial evidence, to be based on clear principles of right of appeal, will reduce that burden on our system and our jurisdictions and bring it into line with other states and territories as well. It was one that we tried to put forward in our last term in the 58th Parliament, and we find ourselves in the 59th Parliament where we will put it through today, and then hopefully it has a speedy passage through.

We think of each year the amount of people who are subjected to crime. We have just under 400 000 people in unique instances. Substantially more than 80 000 of those numbers are family violence instances. These are survivors. These are people who have gone through tumultuous experiences. We have seen through the Royal Commission into Family Violence how traumatic this experience can be through the legal system. We have changed in previous times the ability for the accused to be cross-examining witnesses or survivors. We have changed that. This particular reform in not retraumatising those survivors is really critical. I think that is a key focus that we need to be setting going forward—how we support people who are going through such a difficult time and then the stress and the anxiety that comes with the adversarial and legal system.

We see this play out locally in our communities when people are going through either Family Court disputes, family violence matters or dealing with intervention orders. It is a very difficult and traumatic process, and when children are involved it is even more traumatic and more horrific. What we can do to protect victims is at the heart of what we want to do for the system and as a Parliament. It is not just a government thing but also a parliamentary thing. We want to make sure that victims are supported, and those recommendations put forward by the royal commission to try to reduce the trauma and reduce the burden on people that have gone through so much are really critical. The abolishment of the de novo appeals from the final orders made by the family division of the Children’s Court and their replacement with a new appeals process I think is very critical.

As I said before, currently there are 3200 de novo appeals every year, and these reforms are expected to dramatically cut the number of appeals from the Magistrates Court and will spare victims and witnesses that trauma of giving evidence and being cross-examined all over again, because it is a fully fresh matter. When the de novo appeal goes forward, it is as if the matter has never been heard, and those judgements, those assessments made by magistrates, are basically started all over again as if there is nothing to inform that decision. Having gone through and learned about this during my degree at Deakin University, down the highway at Waurn Ponds, I reflect on how our system of evidence and our system of law has evolved over time. This is an evolution. This is a real evolution. Victoria is the last state to level up with our neighbours in the other states, territories and jurisdictions, and it is a really important reform.

I briefly mentioned in my opening remarks about how standards of evidence evolve over time. During my degree I saw the evolution of various evidence over time—DNA evidence as well. I remember from my studies—and, Acting Speaker Spence, you probably recall from your studies as well—the varying thresholds of evidentiary reliance that you can put forward. Acting Speaker, you probably did a little better in your degree than I did, but I do remember little snippets of it. There are thresholds to the reliance on evidence, and then if you have got a broader cross-section of evidence, its weighting goes up. The notion that you can have second and subsequent appeals if there is fresh and compelling evidence put forward is really critical.

The impact of the evolution of technology on our legal system and on how we function as a government and how we function as a society means that in 20 or 30 years time the next evolution for evidence or for the legal practice will keep us up to speed and will keep us up to date with modern practices. The great fear would be a miscarriage of justice in our system based on the fact that there is new, fresh and compelling evidence that comes forward that is not heard or understood or scrutinised by the independence of our courts, so I am really interested in the thresholds that are put forward in this bill, which I think are really critical. It is important to note, though, that is there is no single catch-all test for what constitutes a miscarriage of justice. But we can hypothesise and envisage the circumstances where that might be, whether a person was not actually guilty but was convicted because crucial, exonerating evidence was either not available or was not presented at trial or where there has been a serious departure from the proper trial process, such as a judge not allowing a material witness to provide evidence or give evidence or a full account of that evidence. There are various other thresholds as well—juror misconduct, witness tampering and so on. To ensure the highest degree of separation of powers in Victoria and to make sure that there is not a miscarriage of justice is truly critical. That amendment goes to the heart of the reasons this bill is being put forward in this Parliament and ensures that as we evolve over time and more information comes forward we provide and ensure the highest of standards and integrity in our system.

As we grow as a population—and we see that just under 400 000 people, sadly, are subjected to crime—we have an obligation to make sure that our legal system is as robust, efficient and effective as possible and that justice is seen to be done and done in the most appropriate and efficient way. We also need to support those making those decisions. Given the amount of cases that are put forward, any efficiency that we can bring forward is good. I know the former Attorney-General and member for Keysborough did a power of work in this space, as has the now Attorney-General and member for Altona. We must continue to support our magistrates and the people that are under those pressures. We need to look after their welfare. They do an incredible job under an incredible amount of stress and duress. Given the things that they hear and the evidence put forward, we can reflect on the pressures and the burdens on them and the very quick time frames in which they have to make very difficult decisions. By the same token and on the same side what is absolutely paramount is the protection of victims and that our justice system is victim-focused and centred on the survivors of various crimes as well.

This bill strikes a balance. It should have gone through in the 58th Parliament, and I have not heard any opposition to these reforms being put forward. I wish it a speedy passage through the upper house. It is another important reform from the Attorney-General’s portfolio. I commend her staff and the department for putting this forward again, and I hope it receives a speedy passage through Parliament. These reforms modernise our legal system. As I said, if we look back to the 1700s, that was before the state of Victoria was even conceived. Now we need to be modern and we need to be efficient in our legal system to ensure that the best justice occurs.

 Mr TAYLOR (Bayswater) (14:58): It is a real pleasure to be able to speak in this place today on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. Can I just acknowledge the contribution made by the member for Mordialloc. I think the member for Mordialloc really encapsulated the tone of this bill quite well.

Mr Richardson: An outstanding member.

Mr TAYLOR: An outstanding member for Mordialloc.

Mr Dimopoulos interjected.

Mr TAYLOR: The member for Oakleigh knows the fantastic work that the member for Mordialloc does down his way. I think he should be commended on his contribution, where he rightfully acknowledged that this reform, this significant piece of reform, is about bringing Victorian legislation, as it relates to our court system in regard to our appeals system and de novo appeals, into the 21st century. It is about making sure that we are constantly and proactively as a state government reforming our criminal justice system and reforming our court systems to make them more efficient and more effective, which in turn speaks volumes for the results that we see for victims and that we see for the people who work in those systems. It is about bringing this into the 21st century and making sure we have got the best processes in place to ensure we get the best justice outcomes.

Can I also thank the current Attorney-General, who has joined us as well, a fantastic member down her way. She has done a great deal of work. As the previous member and a number of other members rightfully acknowledged, the former Attorney-General, now the Minister for Jobs, Innovation and Trade and a number of other fun portfolios, also put in fantastic work on it. Of course this legislation lapsed in the 58th Parliament. Now we are very proudly continuing the work that we did then—our proactive work as a government in the courts space and in the criminal justice space—to bring forward in the 59th Parliament what is a significant piece of reform.

Essentially what this bill is about is it will abolish a very, very old system of de novo appeals for summary criminal matters, replacing them with a new, streamlined and modern appeals process. It will also abolish de novo appeals against final orders made by the family division of the Children’s Court, making sure that for criminal matters our families and our young people are not having to relive what are at times extremely and very traumatic experiences which will have serious ramifications for them throughout the rest of their lives. Living that experience once is enough without throwing the dice again and those young people having to go through the experience of it again.

The bill will also introduce a second or subsequent right of appeal against a conviction for an indictable offence where there is fresh and compelling evidence showing that a miscarriage of justice has occurred. As I said, this goes to the heart of efficiency and of recognising where there are opportunities to improve our criminal justice system and the experience of our victims, who are obviously doing it tough enough and who are in a situation that is extremely difficult for them. It is a very tough experience. Having been there firstly as a police officer and having to deal with a number of victims myself by listening to them and understanding their experience of going through the Magistrates Court system, appeals through any hierarchy of the court system in Victoria are very challenging and difficult experiences for victims. I have personal experience of working for and side by side with those victims and understanding the real trauma that even being there in the first instance causes them.

This bill will make sure that offenders—we have 3200 appeals yearly through this process—do not simply get to throw the dice and have another stab in the dark at an appeals process that is now clearly outdated. This will mean that those victims are not having to relive those extremely traumatic experiences again.

I was police prosecutor up until last November, and I was very proud to be a police prosecutor and have that experience. What an experience it was to be able to really work side by side with victims and be an advocate for them in our court system and to get significant support from this government, a government that has committed significant funding and investment to the court system and the criminal justice system. I understand the difference this will make to the victims that I dealt with in the Magistrates Court. This really is not just, importantly and firstly, about the victims, as I know the member for Mordialloc absolutely understands and said so passionately in his contribution in this place; it is also about the streamlining of the court system.

We are all aware, on both sides of this chamber, on all sides, that this is a bipartisan issue. We understand the real stresses that our magistrates are under. They do a mountain of work. They are absolutely amazing human beings, each and every one of them. Before I go into it, can I just say how proud I am to be part of a government that has given magistrates more resources which have enabled them to do their jobs more effectively. I do not think for a moment that this place should forget that this bill will make the lives of magistrates easier. It is a job that can overflow into the after hours and affect work-life balance. There is a level of stress that is placed upon magistrates day after day after day, hearing again and again and again, like the victims do, traumatic experiences. This will significantly lessen their workload right through the Magistrates Court and the County Court, and that is important. It is making sure that they have safer workplaces and that they get the support that they need, as well as all the supporting court staff. It is not just about our justices and our judges, it is about the court support staff who do a mountain of work and who are often the unsung heroes. It will also make their work lives that much easier as well.

When I first looked at this significant piece of reform to our court system and the streamlining of this process where we have got victims reliving traumatic experiences because we have got offenders who want to throw the dice again, who want a second go through the de novo appeals system, I was very surprised to learn that this has been around since the 17th century. As I said, it was remarkable to understand that we have 3200 of these appeals every single year. That is why it is so important that we are making this reform through this summary criminal jurisdiction and through the family division. This is so important.

We have spoken a lot about the criminal jurisdiction, but really for young families and for children who have to relive these experiences it must be bloody horrid for them; it must be awful. We talk about it in this place and we all get up and we make contributions, but behind all these speeches, behind the reform and behind all the numbers there are real stories; there are families, there are children, there are lives that are deeply affected by this. There are 3200 cases every year. I have no doubt that many of those cases would involve young families and young children who will now not have to relive these experiences.

I am very, very proud to be a part of this government. I know in the 58th Parliament we came very close to passing this significant reform. I am very proud to be here now in the 59th Parliament making sure that we pass this significant piece of reform.

Of course we will ensure that the legislation that we introduce will still provide a safeguard against wrongful convictions, and rightfully so. It will make sure that there is an opportunity, that for offenders who do want to appeal there is a more transparent process and a process where we move away from the old petition process of writing to the Attorney-General, from my understanding. This will really bring us into the 21st century. In essence it used to be that the Attorney-General would have this petition process. The Attorney-General would seek advice from the department. It would go back and forth. This will mean a more direct and transparent process by which to make an appeal. The test by which this will stand means that an offender will simply not be able to try again after failing an appeal. There will be a requirement for fresh and compelling evidence to be discovered to give grounds for a further appeal. Similarly, mere technicalities will not be sufficient to show a substantial miscarriage of justice. That is absolutely, critically important. An appeal will only be allowed if leave is granted. As I said, it will simply not be allowed to start again.

This is, as I said, a very significant piece of reform. I spoke to a number of people in my community when we started looking at this bill—and I know that we introduced one previously—so there is a great level of awareness among those members in my community. This will have a great effect on the many different people that I have spoken to and I know on many members on all sides of the chamber. It may seem like a technical bill. It may seem like nothing to write home about for the journos out there. But make no mistake—I know this from those contributions I have heard today—this is significant. It will change lives. It will make sure that our victims will get, for lack of better phrasing, a better experience of the court system and not have to relive those awful moments that they should not have had to relive in the first place.

I am very, very proud to be a member of this government and to be a former member of Victoria Police. This is a government that has backed Victoria Police, backed criminal justice reform and is now backing in this reform. I thank the Attorney-General, and I commend the bill to the house.

 Mr McGHIE (Melton) (15:08): I rise to contribute on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. I wish to commend my colleagues that have contributed to the debate on this bill. I acknowledge the previous speaker, the member for Bayswater. Having in his previous employment been a police prosecutor, he would know how important this bill is. I would also like to commend the Attorney-General, who is in the house at the moment, for this bill and all her staff that have worked tirelessly on this bill. I do commend them for it. I also want to acknowledge, as the previous speaker did, the court staff—the judges, the magistrates, and all the court staff—and the workload and the pressures that they are under through our systems today. They do a fantastic job.

This bill is in two halves. The first half is a reintroduction of reforms to abolish de novo appeals. This bill passed the Assembly last year but unfortunately lapsed before passing the Council. The other half is reforms to introduce a second or subsequent right of appeal, in very narrow circumstances, to modernise the way our system deals with substantial miscarriages of justice.

Criminal appeals are very important safeguards for both the prosecution and the defence. Of course they allow the prosecution to challenge inadequate sentences and of course for any errors or injustices to be corrected by the higher courts. Both the purposes are strongly in the public interest; however, appeals are very traumatic for victims and witnesses. As matters are prolonged and people are often required to give evidence in court again, obviously it is very traumatising for, as I have said, both the victims but also the witnesses having to give that evidence.

The abolishment of de novo appeals—currently any outcome of a Magistrates Court hearing can be appealed to the County Court as of right, without needing any particular grounds to do so. These appeals must be heard de novo. This means that they are run as a whole new hearing, with the judge hearing all the evidence afresh—that is, not taking into account decisions already made by the previous lower courts. It is an inefficient process, it retraumatises people and it adds to delays and extra costs for all parties. Crucially, it requires victims and witnesses to give evidence in court and to be cross-examined again, and that is very traumatising.

While we have royal commissions into mental health and things like that, this is another example where we put extra stress and strain on and damage people mentally by putting them through these very traumatic processes. These reforms are an important modernisation of our justice system, which is in the interests of both the victims and the efficient operation of a modern high-volume court system. Under our reforms de novo appeals will be replaced by appeals conducted essentially on the papers—that is, our County Court will review transcripts of the original hearing and only admit further evidence in very narrow circumstances, and that is in the interests of justice.

Where a sentence has been appealed the County Court will only allow the appeal if there are substantial reasons to impose a different sentence. In other words, there is a threshold to pass. The appellant will need to show that the original sentence was more than just arguably too severe or too lenient. This test will act as a deterrent to sentence appeals lodged as a throw of the dice. As the member for Bayswater said, as it currently stands it gives someone that opportunity just to throw the dice and have another go at it because they feel that they were unfairly treated.

There are currently about 3200 de novo appeals every year. These reforms are expected to dramatically cut the number of appeals from the Magistrates Court, and spare victims and witnesses the trauma of giving evidence, and again, will reduce costs for the parties. I reiterate that it reduces the trauma but also reduces the mental trauma and anguish that are caused through these processes.

As well as abolishing de novo appeals from summary criminal matters, we are also reintroducing the reform to abolish de novo appeals from final orders made in the family division of the Children’s Court. Stabilising the circumstances for a child in these cases, which involve things like protection orders, therapeutic treatment orders and permanent care orders, is in the child’s best interests, and that needs to be paramount. Again, we must put the children first. Safeguards against errors are preserved; however, appeals to the Supreme Court on a question of law will still be possible.

Introduction of a second or subsequent right of appeal is about modernising Victoria’s safeguards against wrongful conviction. Whilst such cases are incredibly rare, sometimes new evidence is discovered that shows people have been wrongfully convicted. Those cases are currently dealt with behind closed doors through the petition for mercy process. In summary, the petition process involves a convicted person writing to the Attorney-General to present evidence. We are making the process more transparent by creating a pathway for fresh and compelling new evidence that shows a substantial miscarriage of justice to be considered by a court. The right to a second or subsequent appeal will only be available if leave is first granted by the Court of Appeal, and the court can only grant leave if evidence is found to be both fresh and compelling. This is a very high statutory bar that ensures only cases which are meritorious are considered by the Court of Appeal. This test means that an offender will not simply be able to try again after failing at appeal, and again we come back to just having another go at it, tying up the court system and costing parties more money and also causing that additional stress and trauma to people.

Fresh evidence is evidence that was not presented at the trial of the offence and could not, even with the exercise of reasonable diligence, have been presented at the trial of the offence. For evidence to also be compelling it must be reliable and substantial evidence which would have eliminated or substantially weakened the prosecution case if it had been presented at trial. If leave is granted, the applicant must then prove that a substantial miscarriage of justice has occurred in their case for the court to allow the appeal.

While there is no single test for what constitutes a miscarriage of justice, examples might include: where the person was actually not guilty but was convicted because crucial exonerating evidence was either not available or not presented at their trial; where there has been a serious departure from the proper trial process, such as the judge not allowing a material witness to give a full account of their evidence; if the trial judge exhibited bias or if the jury showed misconduct; witness tampering or prosecutorial misconduct if the jury is presented with inadmissible evidence that was crucial to the conviction.

A second appeal will only be available for indictable offences, and cases that meet the very high threshold are expected to be very rare. In South Australia and Tasmania, which already have such rights of further appeal, it has been used fewer than 10 times in South Australia since 2013 and only once in Tasmania since 2015. The reform is also currently before the Western Australian Parliament, so this reform here in Victoria is just bringing it into line with other states.

There is one minor but important reform being made by this bill, and that is to allow the Court of Appeal to operate more efficiently by referring an initial matter in an appeal to a trial court for determination. That means a single judge rather than a full appeal bench can consider a specific question of evidence and report a determination back to the Court of Appeal. This change will allow appeals to be dealt with more efficiently, utilising trial judge expertise where appropriate, and allowing Court of Appeal justices to focus on the central issues in an appeal.

Victoria is the last jurisdiction in Australia to have de novo appeals. As well as delivering benefits for victims and system efficiencies, abolishing them is an important part of the modernisation and maturation of this system, allowing the Magistrates Court proper recognition of its important role as a high-volume court. Also, implementing a second or subsequent right of appeal will ensure that in the very narrow circumstances where there is fresh and compelling evidence of a substantial miscarriage of justice, these matters are dealt with transparently through the courts and in accordance with the principles of open justice.

Again I will come back to the issue of the importance of the welfare of people that are going through these processes and the traumatic experiences they may endure through the de novo processes. As I said, I commend this bill to the house, and I seek that it have a speedy passage.

 Ms HALL (Footscray) (15:18): I am very pleased to make a contribution to the Justice Legislation Amendment (Criminal Appeals) Bill 2019 and would like to acknowledge the contributions from the member for Melton and also the member for Bayswater and of course the presence of the Attorney-General in the chamber as well. I have been fortunate enough in my career to work for another reformist Attorney-General in Nicola Roxon, and I am very pleased to be a member of a government with another great Attorney-General in the member for Altona.

These reforms demonstrate this government’s commitment to place victims and their rights at the centre of the criminal justice system. Essentially this bill has two major components to it. The first half is a reintroduction of reforms, which of course went to the previous Parliament, to abolish de novo appeals, which had passed this place but had lapsed prior to going to the Council last year. The other half is reforms to introduce a second or subsequent right of appeal, in very rare circumstances, which will modernise the way our system deals with substantial miscarriages of justice in the rare instances that they occur.

Essentially these reforms will help reduce the clogging up of courts and really ease the burden on victims who are retraumatised by having to go through subsequent appeals, presenting evidence over again. I think that is a very worthy thing when you consider, for example, that we have 80 000 instances of family violence occurring and if you think about that in the context of the impacts on the court system and the victims. Again, I am very proud, and I often speak about the Royal Commission into Family Violence, that this government is implementing all 227 recommendations of that royal commission and absolutely responding to the most serious issue in terms of crime in this state, which is family violence.

Of course we are the last state to pass these reforms, which date back to the 17th century. They are an important safeguard for both the prosecution and the defence having a criminal appeal, and they allow the prosecution to challenge inadequate sentences and allow errors or injustices to be corrected by higher courts. Both of these purposes in this bill are strongly in the public interest; however, appeals, as I mentioned, can be traumatic for victims and witnesses as matters are prolonged and they are often required to give evidence in court over and over again.

So this is modernising Victoria’s criminal appeal system so that victims and witnesses are not put through that trauma of a second trial when they do not need to be. Appeals of this nature need to be heard de novo, which means that they are run as a whole new hearing, with the judge hearing all the evidence afresh and sentencing afresh—that is, not taking into account decisions already made in lower courts, which gives defence counsel the opportunity to treat the magistrate’s hearing essentially as a trial run. It adds to delays and costs for all parties and, crucially, as I have mentioned, requires victims and witnesses to give evidence in court and be cross-examined, which can be absolutely terrible for victims.

De novo appeals date back to the 17th century, and Victoria is the last jurisdiction to still have them. These reforms are a modernisation of the justice system that is in the interests of both victims and the efficient operation of a modern, high-volume court system while preserving the important safeguards of a robust appeals process. Under our reforms, de novo appeals will be replaced by appeals conducted essentially on the papers—that is, the County Court will review transcripts of the original hearing and only admit further evidence in very narrow circumstances in an interests of justice test. Where a sentence has been appealed, the County Court will only allow the appeal if there are substantial reasons to impose a different sentence. In other words, there is a high threshold to pass, and it needs to be shown that the original sentence was too severe or too lenient prior to accepting the appeal. This test acts as a deterrent to sentence appeals lodged as a throw of the dice by an offender hoping to get a few weeks or months shaved off a sentence that might, for example, have been near the top of the range.

There are currently about 3200 de novo appeals every year clogging up the courts, and these reforms are expected to dramatically cut the number of appeals from the Magistrates Court, sparing victims and witnesses the trauma of giving evidence again.

As well as abolishing de novo appeals from summary criminal matters we are also reintroducing a reform to abolish de novo appeals from final orders made by the family division of the Children’s Court. These are reforms that are supported by the Children’s Court and Department of Health and Human Services (DHHS) because they will, importantly, spare children months of uncertainty and instability waiting for a full rehearing of a case. It goes without saying that stabilising circumstances for children in these cases, matters that can often involve things such as protection orders or therapy treatment orders and permanent care orders, are in a child’s best interest, and that needs to be paramount.

Safeguards against errors are preserved; however, appeals to the Supreme Court on a question of law will still be possible and the bill does not change appeals from interim orders of the family division. The bill also does not prevent the secretary to DHHS from applying to vary orders.

There is the introduction of a second or subsequent right of appeal to modernise the safeguards against wrongful conviction, and while such cases are obviously very rare, sometimes new evidence is discovered that shows that people have been wrongfully convicted. These cases are currently dealt with behind closed doors through the petition for mercy process.

So in summary, the petition process involves a convicted person writing to the Attorney-General to present evidence. The Attorney-General then seeks advice from the justice department on the merits of the evidence and then either refers the matter to the Court of Appeal for them to hear an appeal, which might result in an acquittal or a retrial being ordered, or provides advice to the Premier who then advises the Governor to either grant mercy, pardon the person, reduce their sentence or decline the petition.

We are making this process more transparent by creating a pathway for fresh and compelling new evidence that shows a substantial miscarriage of justice to be considered by a court. The right to a second or subsequent appeal will only be available if leave is granted by the Court of Appeal. The court can only grant leave if the evidence is found to be fresh and compelling, and this is a very high statutory bar that ensures only cases that are meritorious will be considered by the Court of Appeal. This test means that an offender will not simply be able to try again after failing on appeal as fresh and compelling evidence will need to be discovered to give grounds for further appeal. Similarly, mere technicalities will not be sufficient to show a substantial miscarriage of justice.

Fresh evidence is evidence that was not presented at the trial or could not, even with the exercise of diligence, have been presented at the trial for the offence. For evidence to be compelling it must be reliable or substantial evidence that would have eliminated or substantially weakened the prosecution’s case if it had been presented at trial. I commend the bill to the house.

 Mr HAMER (Box Hill) (15:28): I too rise to speak on the Justice Legislation Amendment (Criminal Appeals) Bill 2019, and I do want to congratulate the member for Footscray, the member for Melton and the member for Bayswater, whose contributions I have just been listening to, for their impassioned pleas to make these really critical reforms. I would also like to thank the Attorney-General, who is at the table at the moment, for her work and the work of her staff in bringing forward these reforms once again.

As was said previously, the bulk of these reforms were introduced into the previous Parliament and passed in this house but lapsed at the end of the term. If I could just turn to the primary purpose of the bill, which is to amend two main pieces of legislation, being the Children, Youth and Families Act 2005 and the Criminal Procedure Act 2009—in relation to the Children, Youth and Families Act, the purposes are to abolish de novo appeals against final orders made by the family division of the Children’s Court and to abolish de novo appeals against convictions recorded in summary proceedings and to instead provide a different kind of appeal against the sentences. The bill will also abolish appeals against sentences of imprisonment imposed on appeal from the Magistrates Court or the Children’s Court. In relation to the Criminal Procedure Act 2009, the purpose of this amendment bill is to provide a second or subsequent right of appeal against conviction in certain circumstances.

Now, the concept of a fair trial and the right of appeal is something which is really at the cornerstone of our legal system. It has been around in common-law jurisdictions for many hundreds of years and does provide a protection for errors of law—particularly errors of law that have occurred during the trial process. Obviously those appeal rights remain as part of the common-law system, but the legislation that is before us today is really talking about a particular type of appeal—the de novo appeal, which is where the trial is heard as new. That is the exact meaning of de novo.

Currently any outcome of a Magistrates Court hearing can be appealed to the County Court as of right without needing particular grounds to do so, so not needing the grounds of a particular error of law. That does mean that they are run as a fresh hearing with the judge hearing all the evidence anew and not taking into account the decisions already made in the lower court. This is not only an inefficient process but, as has been mentioned by previous members, it puts an enormous strain on the participants in the trial, particularly the victims, witnesses and anybody else who is involved in the trial process. It requires all of those people to give evidence in court and be cross-examined again. The court process is by necessity an adversarial process and can be a very traumatic experience for those involved, so having a trial that basically re-prosecutes the arguments can be very traumatic.

I was amazed when I was reviewing this legislation to find out that there are 3200 de novo appeals every year in Victoria, which is really a huge number of appeals that are being re-prosecuted as of right. The reforms that are proposed in this bill are expected to dramatically cut the number of appeals from the Magistrates Court and, as I said, will spare victims and witnesses the trauma of giving their evidence and being cross-examined all over again.

In addition to abolishing de novo appeals for summary criminal matters, as I mentioned when I was discussing the purposes of the legislation, the reform will also abolish de novo appeals against final orders made by the family division of the Children’s Court. These are also important reforms; they are supported by the Children’s Court and the Department of Health and Human Services because they will spare children months of uncertainty and instability waiting for a full rehearing of a case. Stabilising the circumstances for the child in these cases—which can include protection orders, therapeutic treatment and permanent care orders—is in the child’s best interest. We know from the domestic violence royal commission how important it is to keep our children safe. Making sure that we can move through these cases quickly and making sure that these final orders can stay as final orders is a really important reform.

There are still safeguards in the bill, and as I mentioned, the concept of appealing against an error of law is an important one in our legal system. That remains possible through this legislation—the legislation does not remove that right to appeal. It also does not prevent the secretary to the department from applying to vary the orders.

I will just move on to the other half of the legislation, which is in relation to the second or subsequent right of appeal. The bill seeks to introduce this second or subsequent right of appeal as a way of modernising Victoria’s safeguards against wrongful conviction. These cases are incredibly rare. Thankfully they are incredibly rare, but occasionally new evidence is discovered which shows that people have been wrongfully convicted. These cases are currently dealt with in a behind-closed-doors process.

It is important that there is a more streamlined legislated process under which this will occur. This bill creates a pathway. If there is fresh and compelling new evidence that can be considered by the court and it shows a substantial miscarriage of justice, then this is the appeal process that can be followed. It will only be available if leave is first granted by the Court of Appeal. It is a high statutory bar that will ensure that only cases that are truly meritorious will be considered by the Court of Appeal. It will not be an opportunity for applicants just to seek a new trial because they were not happy with the outcome of the first one. There will need to be clear evidence that there has been a substantial miscarriage of justice. When we are talking about what might constitute fresh evidence, it is evidence that was not presented at the trial or could not, with all due diligence, have been presented at the trial. The other test is for the evidence to be compelling, which means that it must be reliable and substantial and that it would have significantly weakened the prosecution case at the trial.

So there is quite a stringent process for accessing this second right of appeal, but it is an important element—a really important element—of the legislation to make sure in the cases where there has been a miscarriage of justice that the rights of the defendant are considered and they have that opportunity to reapply to the Court of Appeal. These two reforms are very important to our legal system, and I commend the bill to the house.

 Mr CARROLL (Niddrie—Minister for Crime Prevention, Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (15:38): It is my pleasure to speak on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. Can I commend the Attorney-General for bringing this piece of legislation forward and trying to ensure Victoria has, to the best extent possible, not only a fair, transparent justice system but an effective justice system as well.

We know justice reform is an ongoing process, and the reform of Victoria’s summary appeal system to abolish de novo appeals and where appropriate introduce new processes and tests for hearing appeals from the summary jurisdiction is an important reform. You can only do this when you have got strong support, when you have got the interests of victims in mind and when you have got all parties essentially engaged in the process of bringing about a stronger, fairer and more transparent legal system.

This bill will introduce a second or subsequent right of appeal against a conviction for an indictable offence where there is fresh and compelling evidence showing that a miscarriage of justice has occurred. It will reform Victoria’s appeal system. We do know the concept of appeal is something very important and something we hold sacred. Indeed even the concepts of having a committal hearing, testing the evidence and deciding what cases do go through are relevant. Further than that, there will be an appeal process for the accused to exercise their rights. I know as the Minister for Victim Support that the way our system is set up is very adversarial. Essentially right from the police arrest the accused is pretty much told there and then, ‘You have a right to silence’. Often that right to silence happens all the way through, from the police interview through to the committal hearing. Then they stay, essentially, with the defence. The trial occurs, they may be found guilty and then they may decide whether or not they think they should exercise the rights they have, including the right to appeal.

This is why we do need to reform our criminal justice system and indeed our trial system. It is why earlier today I spoke about the need to look outside the adversarial system as well, in terms of other practices such as restorative justice, where you bring the parties together to discuss what could occur. That has been found to be very strong in other jurisdictions, including the ACT and indeed other parts of the world, whether it be the UK or the United States. We do need to keep being vigilant in reforming our judicial system. It is wonderful that we actually have an Attorney-General that is a reformist. She is always looking at how she can make the best of our justice system. She always wants to put victims’ rights first. We saw earlier this week her advocacy on behalf of many victims in relation to breaches of faith, breaches of trust, by the Catholic Church and other jurisdictions. The Attorney-General has flagged that that will be a very important item when she catches up with the commonwealth Attorney-General. The evidence that was heard for the Betrayal of Trust report in Victoria and things like that is another area of reform that she is committed to implementing and making sure occurs.

If I go to the substance of the bill, it is in three different parts. It will abolish de novo appeals from summary criminal matters and replace them with new appeal processes. It will abolish de novo appeals from final orders made by the family division of the Children’s Court to the County Court of Victoria. It will introduce a second or subsequent right of appeal against a conviction for an indictable offence where there is fresh and compelling evidence showing that a miscarriage of justice has occurred.

I just want to get into the context of why we are doing this. The summary appeal reforms are based on proposals for reform which came out of a 2016 discussion paper of the then Department of Justice and Regulation titled Review of Appeals from the Summary Jurisdiction, so you know that this reform, this legislation, has embedded in it a lot of work and a lot of consultation through the now Department of Justice and Community Safety. Further than that, a lot of the proposals for reform have been considered in other jurisdictions, including New South Wales, in particular through a NSW Law Reform Commission reference.

The summary appeal reforms are in the same form as part 3 of the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018. This former bill was approved by cabinet, introduced to Parliament in July 2018 and passed the Legislative Assembly in September 2018 but lapsed when the 58th Parliament expired. Hence we are here today and we are keen to see this legislation carried through.

It is very important, though, that there be put on record the strong support for reforms to the summary appeals process. When you are dealing with the legal system, you are dealing with victims and you are dealing with people’s rights. When, as I said earlier, you are dealing with an adversarial system, you are going to get lots of opinions and different voices heard. I do commend those in the Department of Justice and Community Safety for their work to date in bringing this legislation forward, considering that all the way back to 2018 there was probably an expectation that it may have passed. With the Attorney-General, we are here today and we intend in the first year of our four-year term to get this legislation through. We know it will bring a stronger, more transparent and in many respects fairer justice system.

We do know stakeholders are very concerned—and I take this very seriously, as the Minister for Victim Support—about any risks to victims through the legislation. Along with the Attorney-General, who is in the chamber, we are intent on making sure, if I could summarise the late Philip Cummins’s words, that the role of the victim in the criminal trial process has now got to a stage where it basically counts, and their voice should be heard. We want to make sure this legislation does not impinge on victims. We want to make sure, whether it be through the work that we are doing through the Office of Public Prosecutions, whether it be through the work we are doing through the Child Witness Service or whether it be through the work we are doing with intermediaries at the County Court, that we have a criminal justice system and indeed a trial system that we know is adversarial but that works and is also mindful of victims and their place in the process.

I think the Attorney-General and I together worked well on the recent appointment of Fiona McCormack as the victims of crime commissioner. She brings a wealth of experience. We know that through the courts—and if I even go right back to the Victims of Crime Assistance Tribunal—family violence is a distressing issue, first and foremost, that is front and centre of our courts and front and centre as a law and order issue. I once again put on the public record the Attorney-General’s support for that appointment that I think will be very, very important.

I want to commend the Attorney-General and the Department of Justice and Community Safety, which had its annual report tabled in essentially the last week that the Parliament sat. It just goes to show the amount of work that is going into our justice system, the amount of work that was accomplished and achieved by the former Attorney-General, the member for Keysborough, and the work that the current Attorney-General is doing to build on those reforms.

This is important reform. There has been consultation with the Law Institute of Victoria and the Bar Association—all the stakeholders, including the Sentencing Advisory Council and the Victorian Law Reform Commission. We are very fortunate in Victoria to have an ecosystem—and I get to see this regularly across my four justice portfolios—of stakeholders that know what it means and advocate for their parts of the legal system, whether it be the Centre for Innovative Justice at RMIT, the Sentencing Advisory Council at Monash, the courts or the law institute. We are very fortunate and we should never take those bodies for granted. Sometimes there will be different lobbying that they do, but we welcome that lobbying because they are advocating on behalf of their members and on behalf of the legal system. At the end of the day, this piece of legislation goes to the heart of that: having a more effective, more transparent, stronger legal system. This legislation will go a long way to achieving that. I think its time has come. While it did not pass the last Parliament, I am certain it is about to be passed in this Parliament. I again put on record my congratulations to the Attorney-General, and I commend the bill to the house.

 Mr EREN (Lara) (15:48): I too would like to make a contribution on this very important bill before the house, the Justice Legislation Amendment (Criminal Appeals) Bill 2019. Can I commend the previous speaker, the Minister for Corrections and Minister for Victim Support, on his contribution. Of course, he is doing a great job in that area. Just yesterday we passed one of his bills in the area of corrections and building the Chisholm Road facilities out in my electorate of Lara, with all the economic benefits that brings to our region.

I also want to congratulate, obviously, the owner of this bill, who is the Attorney-General. She has done a great job. If we want to have a state that is strong, we need a good judicial system. At the heart of a good democracy is a good judicial system. We in this place, clearly, make the laws through legislation, the police enforce those laws and our courts and judicial system apply those laws. Nevertheless, there is an arms-length distance between politics, politicians and the law itself.

It is refreshing to hear so many speakers on our side actually advocating for this bill, because it is such an important bill. Unfortunately the opposition have stopped speaking on this bill. I am not sure if any of them have spoken. They pretend to be the champions of law and order. When legislation such as this comes to this place, you would expect some of them to get up and make some comments on this very important issue. Unfortunately they are probably in the caucus room trying to sort out who their next leader is going to be, rather than worrying about the judicial system of this state, which is a shame. Anyway, we will uphold it on our side of this house and make sure that we have legislation going through this place that is conducive to making Victoria a safe place to live, work and raise your family.

I have mentioned on a number of occasions that this is a great state. It has the strongest economy. For the first time ever I think we have exceeded New South Wales in terms of the jobs growth that is occurring in our state. As a result of that, there is population growth. Why wouldn’t you want to live in a state that is a great place to live and have a meaningful job? Clearly we need a judicial system that is up to scratch, that is up to standard, that is not lagging behind but is modernised and is fair, at the heart of it. That is why there are some things that we need to make amendments to in this place—and that includes this bill right now.

We are the only state that currently has this system in place. The first half of the bill is a reintroduction of reforms to abolish de novo appeals. We like to see ourselves as the state that leads the way when it comes to anything and everything. To see us lagging behind is obviously something that we cannot tolerate. The first half is a reintroduction of reforms to abolish de novo appeals, which passed the Assembly but lapsed before passing the Council last year; the other half is reforms to introduce a second or subsequent right of appeal, in very narrow circumstances, to modernise the way our system deals with substantial miscarriages of justice.

It is a traumatic time if you are going through a judicial process. Obviously going through the courts, for varying reasons, is a traumatic time for many, particularly victims and victims of crime. It is important for those victims, particularly of horrendous crimes where they have experienced appalling crimes perpetrated against them—it could be violent crimes; it could be other ways and means of traumatising those people—that they go through a process only once to find the person who perpetrated the crime guilty of that crime and that the perpetrator of that crime is not given another opportunity, unless there are exceptional circumstances and there is a miscarriage of justice, of going through the whole process again, particularly when it comes to children. That is why it is important to make sure that we have a justice system in place that is impacting least on those that have been the victims of crime so they do not live through all of that trauma again, just because the perpetrator of that crime thinks that they can appeal anything through the County Court, basically hoping that they can take a few months or a couple of years off their sentence—they may know they are guilty but are just testing the system because they can. Now, that is a drain on resources and is obviously an unfair situation for those victims that have gone through and suffered so much. Clearly it is something that needs to be looked at.

Having said all of that, of course you do need a system in place that is going to be fair. Currently any outcome of a Magistrates Court hearing can be appealed to the County Court, as I have indicated, as of right, without needing any particular grounds to do so. These appeals must be heard de novo, which means they are run as a whole new hearing with the judge hearing all the evidence afresh and sentencing afresh—that is, not taking into account decisions already made in the lower court. I have to say again: just as it is traumatic for the victims of crimes, it is also a real psychological burden on those judges or people in the judicial system—whether they be the police or the judges themselves—to go through all of that evidence again, knowing that the decision that was made was the correct one, knowing that they just seem to be going through the same process because the perpetrator of the crime has the right to appeal. It is a drain on resources, it is traumatic for the victims and it is psychologically demanding on the people that work in the judicial system, and that in itself is an injustice, to say the least. This is inefficient as it allows defence counsel to effectively treat the Magistrates Court hearing as a trial run, it adds to delays and costs for all parties and crucially it requires victims and witnesses to give evidence in court and be cross-examined all over again.

De novo appeals date back—I think other members have mentioned this—to the 17th century, which is a long, long time ago, and a lot has changed since then. We need to modernise our judicial system so that it is reflective of the times that we live in. These reforms are an important modernisation of our justice system that is in the interests of both victims and the efficient operation of a modern, high-volume court system, while preserving the important safeguard of a robust appeals process. Under these reforms de novo appeals will be replaced by appeals conducted essentially on the papers—that is, the County Court will review transcripts of the original hearing and only admit further evidence in very narrow circumstances.

Again I say that it is not fair on the children that may be part of a court process, it is not fair on victims of crime, it is not fair on the people that work in the judicial system and it is not fair obviously on the court system itself with the drain on resources for a perpetrator of a crime to just throw the dice and hope for the best in making their appeal. Clearly that needs to change, and that is what this legislation is doing.

There are currently about 3200 de novo appeals every year, and these reforms are expected to dramatically cut the number of appeals from the Magistrates Court and will spare victims and witnesses the trauma of giving evidence and being cross-examined all over again.

There are a number of changes that are occurring with this bill, which obviously make sense as they bring us up to date in terms of our judicial system itself. We do not want to lag behind. We do not want to be the last state to have these outdated laws going back to the 17th century. We are a very modern state with a bright future. It is a shame that the opposition do all their crowing about law and order and how we are not good on law and order. Well, where are they today? They are in the caucus room trying to sort out who their leader is going to be next. They do not care about Victorians. At least one of them could stand up and talk on this very important bill—but no, true to form, they whinge and carp and carry on about how we are governing the state. We will get on with governing this state. I commend the bill to the house and wish it a speedy, speedy passage.

 Mr EDBROOKE (Frankston) (15:59): It is my absolute pleasure this afternoon to rise and speak on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. I might just start by saying that the member for Lara mentioned that the opposition might be in their caucus room. Well, the Leader of the Opposition might be in favour of de novo appeals so he can acquit his case a second time. You never know.

Essentially this bill is a bill of two major reforms. I would like to thank the minister, her staff and the departmental staff. We have a fantastic history of good, solid reforms. We are trying to make sure that we have the best justice system, one that reflects community expectations and puts victims’ rights first, and I think this reform very much has the mantra that if you are standing still, people are passing you. Indeed as the member for Lara and many others have said, we are the last state in Australia to have a look at reforming this legislation.

This legislation has been mentioned in regard to the mandatory reporting bill and people being able to reprosecute their arguments in court and their ability to get adequate compensation—people that went through the Melbourne Response. Again, that is a great history right there of five years of people in this government making sure that our legal system is getting better and serves our community as it should.

The first half of this bill is a reintroduction of reforms to abolish the de novo appeals, which actually passed the Assembly but lapsed before passing the Council last year, unfortunately. For those who speak Latin, ‘de novo’ translates to ‘of new’ or ‘from the beginning’. We will get back to that in a second, because that is at the heart of this bill. The other half of the bill is the introduction of a second or subsequent right of appeal, in very narrow circumstances, to modernise the way our system deals with substantial miscarriages of justice, which I have found is a very interesting term as well. Essentially a de novo appeal is an appeal from the Magistrates Court to the County Court where the County Court looks at a matter afresh, as if there was never a previous decision. If a person decides to appeal their criminal conviction or sentence to the County Court, the judge hearing the case does not consider the previous decision or the evidence that was given at the previous hearing. Witnesses are indeed called again to give evidence for a second time. In a de novo appeal the judge is free to acquit without justification against the original decision, the judge is also free to sentence without reference to the original sentence and the presiding judge imposes a sentence that is appropriate, based on what is presented in the appeal.

With this we see some fairly huge issues in regard to victims. We know from many individual cases and also the Royal Commission into Family Violence that the trauma of victims and witnesses is a huge matter that we have started dealing with, especially with those recommendations from that royal commission. But to do that in the more generic sense is very important as well.

Essentially we are modernising Victoria’s criminal appeals system so that victims and witnesses are not put through the trauma of second trials or made to give evidence again when they actually do not need to. Currently any outcome of a Magistrates Court hearing can be appealed to the County Court without needing any particular grounds to do so. These appeals must be heard through the de novo appeal process. This is really inefficient because it allows the defence counsel to effectively have a trial run in the Magistrates Court. This is adding to delays and costs in these courts and to parties. As we have previously touched on, it requires victims and witnesses to give evidence in the court and, even more so, go through the trauma of being cross-examined again.

De novo appeals date back to the 17th century, and Victoria is the last jurisdiction in Australia to still have them. That is a bit of a strange one in itself because Victoria of course is leading the nation in so many ways—it is the backbone of the economy, jobs et cetera—so we really should be having a look at this. It has been mentioned before, but I will mention it again: the opposition is vehemently opposed to certain legislative amendments that we are going through, and they talk about crime, so it is strange to see the opposition benches are empty at the moment. No-one is interested. No-one is at home.

In the 17th century, which is when these appeals date back to, just to jog some memories, we had the gunpowder plot—a Catholic conspiracy to blow up Parliament—John Milton was born and the English Civil War began as well. I think that given the time between that time and now—and I am not saying we should not hold onto some traditions—we should be open to change and improvements. That is what this government is doing, and we have a great history of doing it.

Under our reforms de novo appeals will be replaced by appeals conducted essentially on the papers, which is by reviewing transcripts, so there are no other witnesses. The County Court will review these transcripts of the original hearing and only admit further evidence in very narrow circumstances. The argument could be made that the de novo appeal does not allow judges to ask for new witnesses to come in, but it certainly does. The judge can request leave from the court to bring in other witnesses in very particular circumstances and other evidence in very particular circumstances as well.

Under this new system both appeals against convictions and appeals against sentences will be dealt with a little differently. Under the system appellants—that is, people who apply to a higher court for a reversal of a decision of a lower court—who appeal against their conviction will have their appeal determined by reference to those transcripts, or on the papers. The appellant will be denied the ability to examine, cross-examine or call new witnesses without leave of the court—that is my understanding.

It is fair to say that one of the main reasons that a witness gives evidence orally in court is so that the court can determine the candour of a witness. The witness’s conduct, their body language and the presentation of their evidence—how it plays out—plays a huge part in the system of the court in determining how much weight should be given to that witness’s evidence. Some will say that once this bill is passed the court will be forced to determine whether the appellant was rightly convicted based on the written transcripts provided to the court, and in that way the ability of the judge to properly determine the evidence is a little deprived. However, as I said previously, there is nothing to stop the court from granting leave to have another witness called to give evidence or admitting further evidence in other narrow circumstances and in the interests of justice.

As well as abolishing de novo appeals from summary criminal matters we are also reintroducing the reform to abolish de novo appeals against final orders made by the family division of the Children’s Court. This is very, very important. These reforms are supported by the Children’s Court and the Department of Health and Human Services because they will spare children months of uncertainty and instability waiting for a full rehearing of a case. I know that there would not be one member of Parliament sitting here today that has not had someone come into their office with an issue that relates to family law, and anything we can do to make that more efficient and less traumatic is a step forward. We are stabilising the circumstances for children in these cases, which will involve things like protection orders, therapeutic treatment orders and permanent care orders in the child’s best interest, and that needs to be paramount.

As I have said, Victoria is the last jurisdiction in Australia to have de novo appeals. As well as delivering benefits for victims and system efficiencies, abolishing them is an important part of the modernisation and maturation of our system, and it will allow the Magistrates Court proper recognition of its important role as our high-volume court. Implementing a second or subsequent right of appeal will ensure that in very narrow circumstances, where there is fresh and compelling evidence of a substantial miscarriage of justice, these matters are dealt with transparently through the courts and in accordance with the principles of open justice.

Can I just say once again that I am very proud to work with the Attorney-General. She is someone that has brought into this house many, many good reforms, many progressive reforms, to ensure that we are serving our community in accordance with their expectations. I notice that the former Attorney-General, the member for Keysborough, who also introduced many reforms into this house, is sitting at the table today, and I thank him as well.

 Mr PAKULA (Keysborough—Minister for Jobs, Innovation and Trade, Minister for Tourism, Sport and Major Events, Minister for Racing) (16:09): 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.

 Ms SHEED (Shepparton) (16:19): I rise to make a contribution on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. This is a fairly significant piece of legislation. I would like to start by talking about the fact that the government is proposing to abolish the right to a de novo hearing on appeal to the County Court. Now, I see that as something very concerning. It reflects to some extent a lack of understanding of the pressures that exist in our Magistrates Court in terms of the hearings that are happening there.

The government contends that in most appeal cases there would be a requirement that victims and witnesses not give evidence again. A de novo appeal is where the whole case is heard again, effectively a fresh trial so victims and witnesses do then have to give their evidence again if that is the case. However, it must be remembered that in many cases in the Magistrates Court a plea of guilty may have been entered and it may be just the sentence that the person is appealing against, but once it goes up to the County Court then a full hearing would ensue to ensure that everything is heard and everything is before the court. There is no doubt that our community wants to see a situation where victims in particular are not burdened with the need to repeat their story over and over. I think all of us understand that, especially in cases of family violence and child sexual abuse—those sorts of cases where there has been so much effort made over the years to deal sensitively with witnesses and victims who have to give evidence in those circumstances—that is truly welcomed. I think generally everyone in the community supports that.

I have to say that in Shepparton just recently we had the Attorney-General come and open the first family violence court in Victoria. That has been as a result of many things but also part of the fact that we actually have a new courthouse in Shepparton that has been built in recent years. It left the old—I suppose you would call it 1930s, 1940s—courthouse that had not been used for many years available to be completely refurbished and turned into the family violence centre. Within that there are numerous meeting rooms so that barristers, solicitors, victims—all those involved—have plenty of places to meet. There is a big, large area where people can congregate, but they have to go through security. There is then a special room set aside where a witness or a victim can give their evidence in a separate room, videoed through to the court where the hearing is taking place, and they can have a support person with them. These are just amazing facilities that we now have in Shepparton to deal sensitively with the many sorts of cases where you really are concerned about that overexposure of witnesses.

I do go back to the fact that in our Magistrates Court there are very many practical decisions made when the person is before the court, and very often it is the case that a person will choose to plead guilty and take their chances on a sentence. On the other hand they could elect to go to trial. It might be a more serious matter and they could elect to have their case go straight to the County Court for trial. There are a couple of factors here that concern me. One is that there will be less inclination for people to have cases dealt with summarily if they feel that they are not fully prepared or if they are perhaps unrepresented. Many people before the Magistrates Court are unrepresented. We only know too well how stretched legal aid funding is and how there are many people in our community who face court on their own unrepresented. They might talk briefly to a duty lawyer. I have been in court many times where the queue for the legal aid lawyer sitting in that duty office is very long. I think another aspect of this will be that many people will seek to have their cases adjourned rather than dealing with them on the day.

In some ways the Magistrates Court can be seen as rough justice, but it is a practical and quick solution for many people with more minor charges. When it is more serious, people really need to consider whether they are prepared to take the chance before a magistrate, particularly if they know they are not going to be able to have a further hearing or have their case dealt with at another level later on. That is a situation that really concerns me, and it is a reason why I do not support the removal of de novo hearings on appeal.

The Magistrates Court in our state works at the coalface. They get criticised up and down, up hill and down dale. I have to say that during the last Parliament the campaign run by the Herald Sun in its criticism of the judiciary, in particular magistrates and judges whose sentences were not liked, was really concerning. It prodded the government, I believe, to do some things that were perhaps in retrospect not the best. We know that we now have so many people on remand in our prisons. Our prisons are bursting at the seams. Our magistrates have really been criticised so much when their workloads have increased dramatically over time. They get criticised for soft sentencing. That is a fictitious phenomenon that is not reflected in the statistics.

Just recently we had the Sentencing Advisory Council come to Wangaratta to run effectively mock courts where members of the public would come in, sit in the courtroom, hear all the evidence for themselves and then decide what would be an appropriate sentence. The sentencing council have done this in many places, and they have found that members of the public will generally sentence more harshly than a magistrate or judge does. It just reflects that notion that magistrates who actually hear all the evidence, see the witnesses and understand the nuances of every case are making some pretty good decisions a lot of the time, especially when they have got the time to do it. Members of the public who think magistrates are making wrong decisions are often misinformed in that regard and would probably be much harder themselves.

I think it is very important that we support our judicial system at every level because history will tell us that bad and fair outcomes will be caused where judges and magistrates are under pressure, where they do not have the time and where they do not have before them the evidence they require to deal with the issues before them.

I spoke against mandatory sentencing in this place two years ago when that issue was before this Parliament. That legislation went through, as we know, but I think there is a real concern around that, because again, it removes from the judiciary the ability to take into account every factor relating to a person, and it is not appropriate that we respond to the media when we are thinking about how our justice system should look.

I see that the Minister for Youth Justice is here today. It has been very refreshing to hear in this 59th Parliament a change in the way we are thinking about prisoners, about the prison system and about young people. There is a discussion now about restorative justice, and there is a discussion about intervention in early childhood. The minister at the table is coming to Shepparton in the near future to meet with various groups who are working so hard in that area of early intervention, because we know who in our communities are the next young people who will be going to jail, and if we do not intervene at an early stage for those young people then that is what will happen—they will just become statistics in the justice system. All the evidence now shows that early intervention can change the trajectory of young people’s lives—young people who have been subject to environmental trauma, to family violence and to all sorts of things and who are often dysfunctional in schools. Programs in schools that provide a therapeutic environment for them to be dealt with are now being shown to have a really significant effect. We have the Lighthouse Project in Shepparton also working towards young people having better outcomes. So while I support the bill generally, I have my concerns.

 Mr BRAYNE (Nepean) (16:29): I rise to speak on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. Before I do I just want to commend the Attorney-General and her departmental staff for their work on the bill, as this is an important reform. The bill’s objectives will (a) reform Victoria’s summary appeals system to abolish de novo appeals and, where appropriate, introduce new processes and tests for hearing appeals from the summary jurisdiction and (b) introduce a second or subsequent right of appeal against a conviction for an indictable offence where there is fresh and compelling evidence showing that a miscarriage of justice has occurred. Now, this is a reintroduction of these reforms, as the bill did not pass the Parliament last time in the Legislative Council.

Criminal appeals are an important safeguard for both the prosecution and the defence. They allow the prosecution to challenge inadequate sentences and also allow errors or injustices to be corrected by higher courts. Both of these purposes are very much in the public interest. However, appeals can be traumatic for victims and witnesses, as matters are prolonged, and they are often required to give evidence in court again. We are modernising. The Andrews Labor government is modernising Victoria’s criminal appeals process so that victims and witnesses are not put through the trauma of a second trial or made to give evidence again when they do not need to.

Currently, any outcome of a Magistrates Court hearing can be appealed to the County Court as of right, without needing any particular grounds to do so. These appeals must be heard de novo, which means they are run as a whole new hearing, with the judge hearing all the evidence afresh a second time and subsequently sentencing afresh. They do not take into account decisions that have already been made in the lower court, and this is an inefficient and unfair process, as it effectively allows defence counsel to treat the Magistrates Court hearing as a trial run. It adds delays and costs for all parties, and crucially it requires victims and witnesses to give evidence in court and be cross-examined all over again.

De novo appeals date back to the 17th century. Victoria is the last jurisdiction in Australia to still have them, and we have some members here today who are actually from the 17th century. These reforms are an important modernisation of our justice system that is in the interests of both victims and the efficient operation of a modern, high-volume court system, while still preserving the important safeguards of a robust appeals process. Under our reforms de novo appeals will be replaced by appeals conducted essentially on the papers—that is, the County Court will review transcripts of the original hearing and only admit further evidence in very narrow circumstances. That will be through an interests of justice test. Some members have been asking here; you may not be hearing that at home.

Where a sentence has been appealed, the County Court will only allow the appeal if there are substantial reasons to impose a different sentence. In other words, there is a threshold to pass. The appellant will need to show that the original sentence was more than just arguably too severe, or too lenient for that matter, before accepting the appeal. This test will act as a deterrent to sentence appeals lodged as a throw of the dice by an offender hoping to get a few weeks or months shaved off their sentence. Their sentence length might, for example, have been near the top of the range. There are currently about 3200 de novo appeals every year. These reforms are expected to dramatically cut the number of appeals from the Magistrates Court and will spare victims and witnesses the trauma of giving evidence again and again and being cross-examined all over again.

Members interjecting.

Mr BRAYNE: It is very important. As well as abolishing de novo appeals from summary criminal matters, we are also reintroducing the reform to abolish de novo appeals from final orders made by the family division of the Children’s Court. These are reforms that are supported by the Children’s Court and the Department of Health and Human Services (DHHS) because they will spare children months of uncertainty and instability in waiting for a full rehearing of a case. Stabilising the circumstances for a child in these cases, which involve things like protection orders, therapeutic treatment orders and permanent care orders, is in the child’s best interests, and that needs to be paramount.

Safeguards against errors are preserved, however. Appeals to the Supreme Court on a question of the law will still be possible, and the bill does not change appeals to interim orders of the family division. The bill also does not prevent the Secretary of DHHS from varying orders.

An introduction of a second or subsequent right of appeal is about modernising Victoria’s safeguards against wrongful conviction. While such cases are incredibly rare, sometimes new evidence is discovered that shows people have been wrongfully convicted. Those cases are currently dealt with behind closed doors through that petition for mercy process. In summary, the petition process involves a convicted person writing to the Attorney-General, who sits by my side today, to present evidence. The Attorney-General seeks advice from the Department of Justice and Community Safety on the merits of the advice and then either refers the matter to the Court of Appeal for them to hear an appeal, which might result in an acquittal or a retrial being ordered, or provides advice to the Premier, who then advises the Governor—quite an order chain here—to either grant mercy, pardon the person, reduce their sentence or decline the petition. I guess the takeaway messages that is the Attorney-General, the Premier and the Governor have quite a task on their hands.

We are making the process more transparent by creating a pathway for fresh and compelling new evidence that shows a substantial miscarriage of justice to be considered by a court. The right to a second or subsequent appeal will only be available if leave is first granted by the Court of Appeal. The court can only grant leave if evidence is found to be both fresh and compelling. This is a very high statutory bar that ensures only cases which are meritorious are considered by the Court of Appeal. This just means that an offender will not simply be able to try again after failing an appeal; fresh and compelling evidence would need to be discovered to give grounds for a further appeal. This is basic sense; this is common sense.

Similarly, more technicalities will not be sufficient to show a substantial miscarriage of justice. Fresh evidence is evidence that was not presented at the trial of the offence and could not, even with the exercise of reasonable diligence, have been presented at the trial of the offence. For evidence to be considered compelling it must be reliable and substantial evidence which would have eliminated or substantially weakened the prosecution case if it had been presented at trial. If leave is granted, the applicant must then prove that a substantial miscarriage of justice has occurred in their case for the court to allow the appeal.

While there is no single test for what constitutes a miscarriage of justice, examples might include, for instance, where a person was actually not guilty but was convicted because crucial exonerating evidence was either not available or not presented at the trial, or where there has been a serious departure from the proper trial process, such as the judge not allowing a material witness to give a full account of their evidence, if the trial judge exhibited bias, juror misconduct—I have not been asked to be a juror just yet, so I am waiting for my time to be on a jury; it will not be for a while, maybe in a couple of years time, 20 years time, right, folks?—witness tampering or prosecutorial misconduct if the jury is presented with inadmissible evidence that was crucial to the conviction.

A second appeal will only be available for indictable offences. Cases that meet the very high threshold are expected to be very rare. South Australia and Tasmania—great states—already have a right of further appeal. It has been used fewer than 10 times in South Australia since 2013 and just once in Tasmania since 2015. The reform is also currently before the West Australia Parliament. We occasionally from time to time have West Australian MPs in our chamber here to watch us. It is always exciting when we have different guests from different parliaments. If I ever get a chance, I would not mind going to the West Australian Parliament and just checking it out sometime. It is probably not as good as our Parliament of course, but I am sure it is all right.

There is only one final, relatively minor but important reform being made by this bill—that is, to allow the Court of Appeal to operate more efficiently by referring an issue or matter in an appeal to a trial court for determination. That means a single judge rather than a full appeal bench can consider, for example, a specific question of evidence and report a determination back to the Court of Appeal for them to take into account in ruling on the appeal as a whole. I am getting a few nods here, so people are largely in agreement. This change will allow appeals to be dealt with more efficiently, utilising trial judge expertise where appropriate and allowing Court of Appeal justices to focus on the central issues in an appeal.

To conclude my speech on this bill today, Victoria is the last jurisdiction in Australia to have de novo appeals. As well as delivering benefits to victims and system deficiencies, abolishing them is an important part of the modernisation and maturation of our system, allowing the Magistrates Court proper recognition of its important role as a high-volume court. Implementing a second or subsequent right of appeal will ensure that in the very narrow circumstances, whether it is fresh and compelling evidence of a substantial miscarriage of justice, these matters are dealt with transparently.

 Mr KENNEDY (Hawthorn) (16:40): I would like to begin my remarks with some reference to general issues of law and order. I go back to my own election campaign in October 2018. In Hawthorn West, outside a number of shops, there was another candidate for Hawthorn who was also conducting an appeal and visiting each of the shops. However, this person was accompanied by someone from a victims of crime group. He introduced me to this person, who told me a story of his daughter who had been abused and attacked. He was in tears as he was telling the story because he was concerned and upset by the fact that the person who did this and who was found guilty received only a small sentence. I think it was only something like six months or a year. At the time I thought to myself that it was a bit of a poor show for this other candidate to be having this member of the victims of crimes group visiting the shops to appeal to them to vote for a different political party.

But I did think later on how difficult it is for magistrates and for judges and people in that sort of situation to come up with appropriate sentences. I did not know much about the legal system before I came into this place, but I do know that there are many times where a lot of money has had to be spent on legal proceedings and you wonder whether or not the system is just a bit inefficient and needs improvement so that there is less need for that sort of expenditure. I am delighted to have the opportunity to speak here, because what we have are various sanctions to improve the efficiency and the overall effectiveness of the legal system. I think anybody reading through this bill will say, ‘Yes, that would certainly make things more efficient and fairer’.

I am aware, as the member for Shepparton said earlier today, of the pressure on magistrates. I have a daughter who is a police officer. She trained originally as a lawyer—she did an arts and law degree—and then joined the police force and now has some involvement in prosecution. She was just saying informally that there is enormous pressure on magistrates in terms of the day to day and in terms of fairness and of consistency, so anything that can lift that situation I am sure would be welcomed.

I want to say just a few words on the Children’s Court. The member for Shepparton was talking about that and the situation that exists in Shepparton and the new arrangements that have been made in recent times for the proper conduct of appeals and so on. As well as abolishing de novo appeals from summary criminal matters, we are also introducing the reform to abolish de novo appeals from final orders made by the family division of the Children’s Court. These are reforms that are supported by the Children’s Court and the Department of Health and Human Services because they will spare children months of uncertainty and instability waiting for a full rehearing of the case. Stabilising the circumstances for a child in these cases, which involves things like protection orders, therapeutic treatment orders and permanent care orders, is in the child’s best interests, and that needs to be paramount. However, safeguards against errors are preserved. Appeal to the Supreme Court on a question of law will still be possible, and the bill does not change appeals from interim orders of the family division. The bill also does not prevent the Secretary to the Department of Health and Human Services from applying to vary orders.

I will just comment also on the second or subsequent right of appeal. The introduction of a second or subsequent right of appeal is about modernising Victoria’s safeguards against wrongful conviction. While such cases are incredibly rare, sometimes new evidence is discovered that shows people have been wrongfully convicted. Those cases are currently dealt with behind closed doors through the petition for mercy process. In summary, the petition process involves a convicted person writing to the Attorney-General to present evidence. The Attorney-General seeks advice from the department of justice on the merits of the evidence and then either refers the matter to the Court of Appeal for them to hear an appeal, which might result in acquittal or a retrial being ordered, or provides advice to the Premier, who then advises the Governor to either grant mercy—pardon the person—or reduce their sentence or decline the petition.

We are making the process more transparent by creating a pathway for fresh and compelling new evidence that shows a substantial miscarriage of justice to be considered by a court. The right to a second or subsequent appeal will only be available if leave is first granted by the Court of Appeal. The court can only grant leave if evidence is found to be both fresh and compelling. This is a very high statutory bar that ensures only cases which are meritorious are considered by the Court of Appeal. This test means that an offender will not simply be able to try again after failing an appeal. Fresh and compelling evidence would need to be discovered to give grounds for a further appeal. Similarly, mere technicalities will not be sufficient to show a substantial miscarriage of justice. Fresh evidence is evidence that was not presented at the time of the offence and could not, even with the exercise of reasonable diligence, have been presented at the trial of the offence. For evidence to also be compelling, it must be reliable and substantial evidence which would have eliminated or substantially weakened the prosecution case if it had been presented at trial. If leave is granted, the applicant must then prove that a substantial miscarriage of justice has occurred in their case for the court to allow the appeal.

My notes go on, but I have only a short time available. A second appeal will only be available for indictable offences. Cases that meet the very high threshold are expected to be very rare: South Australia and Tasmania already have such a right of further appeal, and it has been used fewer than 10 times in South Australia since 2013 and just once in Tasmania since 2015. The reform is also currently before the Western Australian Parliament, as we have already heard.

Victoria is the last jurisdiction in Australia to have de novo appeals. As well as delivering benefits for victims and system efficiencies, abolishing them is an important part of the modernisation and maturation of our system, allowing the Magistrates Court proper recognition of its important role as our high-volume court. Implementing a second or subsequent right of appeal will ensure that in the very narrow circumstances where there is fresh and compelling evidence of a substantial miscarriage of justice, these matters are dealt with transparently through the courts and in accordance with the principles of open justice.

I would just like to conclude by saying that we are never going to have the final word on law and order. There is never going to be something that is seen to be 100 per cent just and fair and efficient in all possible circumstances. All we can do is to keep moving towards such an ideal, and I commend this bill as an example of where we are moving forward to make these things better for the future.

 Mr STAIKOS (Bentleigh) (16:49): It is a pleasure to rise to speak on the Justice Legislation Amendment (Criminal Appeals) Bill 2019, and like other speakers, I too commend our current Attorney-General but also the Attorney-General in the last Parliament for this legislation, for developing this reform, which is well overdue. In fact some of the details of this bill were debated in this Parliament prior to the last election but unfortunately did not make it through the Legislative Council prior to that election, so here we are today.

Over the last five years at least that I have been a member of this place, we have debated many, many reforms to our justice system, and like many other similar jurisdictions around the world, our justice system is based on certain basic principles. One that springs to mind is of course the right to a fair trial, but what we have seen over the last five years is a government that is also willing to ensure that our justice system is ever changing, ever reforming, because I know that just in the space of time that this government has been in office, certain events have taken place that have sometimes necessitated a change in law. Whether it is sentencing, or parole or bail, all of these reforms have taken place after certain events have taken place, but also after thorough reviews and thorough inquiries, because this is a government that takes its advice from experts, not from those opposite—and perhaps towards the end of my contribution I might refer to their latest thought bubble in the justice area. We take our cues from the experts.

This is essentially a bill of two halves. The first half is a reintroduction of reforms to abolish de novo appeals, which passed the Assembly but lapsed before passing the Council last year. The other half contains reforms to introduce a second or subsequent right of appeal in very narrow circumstances to modernise the way our justice system deals with substantial miscarriages of justice.

Criminal appeals are an important safeguard to both the prosecution and the defence. They allow the prosecution to challenge inadequate sentences and also allow errors or injustices to be corrected by higher courts. Both of these purposes are strongly in the public interest; however, appeals can be traumatic for victims and for witnesses as matters are prolonged, and they are often required to give evidence in court again.

We are modernising Victoria’s criminal appeals so that victims and witnesses are not put through the trauma of a second trial or made to give evidence again when they do not need to do so. Currently, any outcome of the Magistrates Court can be appealed to the County Court as of right without needing any particular grounds to do so. These appeals must be heard de novo, which means from the beginning, from afresh, from anew. They are heard as a whole new hearing, with the judge hearing all the evidence afresh and sentencing afresh—that is, not taking into account decisions already made in the lower court. This is inefficient, as it allows defence counsel effectively to treat the magistrates hearing as a trial run. It adds to delays and costs for all parties, and crucially, it requires victims and witnesses to give evidence in court and be cross-examined all over again.

De novo appeals date back to the 17th century, and Victoria is the last jurisdiction in Australia to still have them. These reforms are an important modernisation of our justice system that is in the interests both of victims and the efficient operation of a modern, high-volume court system, while preserving the important safeguards of a robust appeals process.

Under our reforms de novo appeals will be replaced by appeals conducted essentially on the papers—that is, the County Court will review transcripts of the original hearing and only admit further evidence in very narrow circumstances. Where a sentence has been appealed, the County Court will only allow the appeal if there are substantial reasons to impose a different sentence. In other words, there is a threshold to pass. The appellant will need to show that the original sentence was more than just arguably too severe or too lenient before accepting the appeal. The test will act as a deterrent to sentence appeals lodged as a throw of the dice by an offender hoping to get a few weeks or months shaved off a sentence that might, for example, have been near the top of the range. There are currently about 3200 de novo appeals every year. These reforms are expected to dramatically cut the number of appeals from the Magistrates Court and will spare victims and witnesses the trauma of giving evidence and being cross-examined all over again.

There will also be an introduction of a second or subsequent right of appeal, which is about modernising Victoria’s safeguards against wrongful conviction. While such cases are incredibly rare, sometimes new evidence is discovered that shows people have been wrongly convicted. Those cases are currently dealt with behind closed doors through the petition for mercy process. In summary, the petition process involves a convicted person writing to the Attorney-General to present evidence. The Attorney-General seeks advice from the Department of Justice and Community Safety on the merits of the evidence and then either refers the matter to the Court of Appeal for them to hear an appeal, which might result in acquittal or a retrial being ordered, or provides advice to the Premier who then advises the Governor to either grant mercy or decline the petition. We are making the process more transparent by creating a pathway for fresh and compelling new evidence that shows a substantial miscarriage of justice to be considered by a court.

The right to a second or subsequent appeal will only be available if leave is granted by the Court of Appeal. The court can only grant leave if the new evidence is found to be both fresh and compelling. This is a very high statutory bar that ensures that only cases which are meritorious will be considered by the Court of Appeal. This test means that an offender will not simply be able to try again after failing at appeal. Fresh and compelling evidence would need to be discovered to give grounds for a further appeal.

Similarly, mere technicalities will not be sufficient to show a substantial miscarriage of justice. Fresh evidence is evidence that was not presented at the trial for the offence and could not, even with the exercise of reasonable diligence, have been presented at the trial for the offence. For evidence to also be compelling it must be reliable and substantial evidence which would have eliminated or substantially weakened the prosecution case if it had been presented at the trial. If leave is granted, the applicant must then prove that a substantial miscarriage of justice has occurred in their case for the court to allow the appeal. While there is no single test for what constitutes a miscarriage of justice, examples might include where the person was actually not guilty but was convicted because crucial exonerating evidence was either not available or not presented at their trial. Cases that meet the very high threshold are expected to be very, very rare.

In other jurisdictions such as South Australia and Tasmania, which already have such a right of further appeal, they have been used in South Australia, for instance, fewer than 10 times since 2013 and only once in Tasmania since 2015. The reform is also currently before the Western Australia Parliament. In many cases, particularly in terms of the reforms in this bill to de novo appeals, they are about ensuring that we are not retraumatising victims. Victims have to certainly be a high priority in terms of our consideration as lawmakers.

I was 10 or 11 when Mersina Halvagis was murdered at Fawkner Cemetery. I am 33 now, and in all of those years since the evil man who committed that murder, Peter Dupas, has been in courts several times putting the families of his victims through absolute hell and retraumatising them. I am not saying that this bill necessarily applies to that case, but I am saying that we do need to do everything we can as a government and as lawmakers to make sure that we are balancing the important principle of a right to an appeal in our jurisdiction with other important considerations. One of those of course is that we are not unnecessarily retraumatising victims.

This reform to our justice system, like many others over the five years that we have been in office, has come about because of expert advice, because of important consultation—not a thought bubble like what we hear from those opposite. I commend the bill to the house.

 Ms HALFPENNY (Thomastown) (16:59): I would also like to rise to briefly—

The DEPUTY SPEAKER: Order! The time set down for consideration of items on the government business program has arrived, and I am required to interrupt business. The house is considering the Justice Legislation Amendment (Criminal Appeals) Bill 2019. The question is:

That this bill be now read a second time.

House divided on question:

The SPEAKER: The bill will now be sent to the Legislative Council and their agreement requested.