MS TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (17:50:20): I will try to be fairly quick with this, in responding to comments that have been made. In addressing this matter, firstly, I wish to indicate that I do have some answers to a number of questions that have been raised. There were four questions raised by Mr O’Donohue. The first related to the reason the government has made the decision to abolish de novo appeals. Essentially appeals play an important role in the justice system, offering an important safeguard to correct errors and, in rare cases, avoid a miscarriage of justice. However, appeals can have a significant impact on the justice system and those involved, particularly victims and witnesses. It is therefore important that our appeals processes are modern and fit for purpose to ensure appeals are not considered needlessly or in a manner that is unduly burdensome on the system or vulnerable individuals. Victoria is the only Australian jurisdiction that continues to have ‘as of right’ de novo appeals for all appeals from decisions of magistrates in criminal matters, including against conviction and sentence. De novo hearings have considerable impacts on the criminal justice system, including on the wellbeing of victims and witnesses who may be required to give evidence twice—first in the original hearing and then again on appeal. A de novo hearing has no regard to the work completed by magistrates, undermines the finality of their decisions and creates inefficiencies through the duplication of proceedings in the higher courts. The second matter was around the number of de novo appeals, their respective outcomes and the sentencing impacts of those. With respect to those points, I will undertake to come back to the member with as much information as possible. In trying to assist with that, Mr O’Donohue, I have been advised that the courts have some concerns with respect to the release of some of these numbers. As such, the government can commit, though, to seek information and provide as much information as possible to you. In respect to the third question—it related to the extent to which victims will have a reduced exposure to trauma as a result of these changes—I would say that while it is true that sentence appeals have less impact on victims and witnesses than appeals against conviction, victims are still required to resubmit victim impact statements and victims or witnesses may also be required to give evidence again if the facts are disputed. The final point related to public confidence in the administration of justice as it relates to de novo appeals. To that I say the issue of undermining the Magistrates Court is not one of volume but rather one of process. Because a de novo appeal is run afresh, it is as if the magistrate’s hearing never happened. No acknowledgement is given to the decisions made by that court and no reasons need to be given for a new decision which is different. The new system will give recognition to the original decisions and explain why they are being changed at appeal. This will make them much more understandable for victims and all involved, I would argue. Ms Patten had a number of points. She questioned whether offenders will be able to submit new material at sentence appeal. That, I can say, will depend on whether the material could have been presented at the original hearing. An appellant will be able to present, as of right, new material which relates to matters that occurred after the sentence was imposed and which concerns the circumstances of the appellant. That might include, for example, a new report showing a new diagnosis or that the offender has just entered treatment. The court will also be able to consider submissions made during the appeal hearing, which may be broad. They could address any matter that the court considers relevant and necessary to determining the appeal—for example, if the appellant did not provide the original court with information about their circumstances, such as, for example, a longstanding illness in respect of which reports had not been previously provided. Of course submissions could also be made by the prosecution—for example, evidence that the offender had not complied with bail conditions when waiting on an appeal or regarding victim impact. The court will take all information into account when considering whether there are substantial reasons to impose a different sentence. I also note that some members have referenced the 2006 parliamentary Law Reform Committee report on this issue and its conclusion that on balance de novo appeals should be retained. It is important to recognise that the 2006 report placed less emphasis on the impact of de novo appeals on victims and witnesses than other considerations. Things have changed since 2006. There is now significantly better recognition of victims rights across our justice system and a recognition that the system ought to avoid retraumatising victims. The Magistrates Court now routinely hears serious matters involving victims, including family violence, burglaries, recklessly causing serious injury and carjacking. The number of de novo appeals has grown by 45 per cent since 2006. For these reasons we think that the new appeals process outlined in the bill strikes a more appropriate balance by maintaining appeal rights, which is important, and will continue to be accessible without retraumatising victims. We believe the appropriate balance has been struck in this bill. I trust these comments have been of assistance. I commend the bill to the house.
Category: Parliament
