The Criminal Appeals Amendment Bill 2021, the new statutory right of (second and subsequent) appeal, has now been introduced in Western Australia. It passed the parliament on June 15, 2022, and now awaits formal assent before being enacted. The Australian Capital Territory is considering a similar Bill; similar legislation has been in force for some time South Australia, Tasmania and Victoria.
“Such amendments without a Criminal Cases Review Commission have only limited effect,” comments Flinders University legal academic Dr Bob Moles, “but it is nevertheless a positive step in the right direction.”
The WA Parliament provides the following information about the Bill in a memorandum:
This Bill creates a pathway for a second and subsequent appeal directly to the Court of Appeal, where currently, after all appeals are exhausted, a convicted person has no further right to appeal even if fresh or new evidence later emerges that suggests that a substantial miscarriage of justice has occurred. Currently, where new evidence has the potential to exonerate a convicted person, their only recourse is to lodge a petition for the exercise of the Royal Prerogative of Mercy by the Governor, or petition the Attorney General to refer the case to the Court of Appeal. The Bill will not affect the continued use of these powers by the executive.
Part 2 of the Bill contains amendments to the Criminal Appeals Act requiring any appeal under Part 3A to be commenced by application for leave to appeal to the Court of Appeal. Part 2 also sets out the powers of the Court of Appeal in hearing both applications for leave to appeal and appeals, providing for the allowance or dismissal of the appeal, and a range of options that may be utilised at the discretion of the Court of Appeal when an appeal has been allowed.
Part 3 of the Bill contains consequential amendments to the Criminal Procedure Act 2004 (WA), the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), the Sentencing Act 1995 (WA) and the Supreme Court Act 1935 (WA). All consequential amendments insert a reference to appeals under the new Part 3A, where appropriate, in provisions which currently reference appeals under Part 2 or Part 3 of the Criminal Appeals Act.
Part 3 of the Bill also amends section 15A(2)(c) of the Bail Act 1982 (WA) and inserts proposed new section 15A(2)(d) to clarify that there is a right of appeal from a single judge of appeal to the Court of Appeal in relation to questions of bail pending appeal.