Part 3: Appeals Process in Queensland – Should Queensland adopt a second right of appeal? by Ella Scoles

Our first and second blog in this three part series provided an introduction, history and exploration of the appeals process in Queensland and other jurisdictions.  This final blog will concentrate on whether Queensland should adopt a second right of appeal.

  1. Should Queensland adopt a second right of appeal?

Australia’s post-conviction mechanisms have been the subject of much analysis. Often this analysis has brought to the fore deficiencies in the current process. This section will focus of three areas representing the most prominent arguments in the literature. These are critique of the one appeal rule, critique of the petitions of mercy, as well as critique of the second avenue of appeal.[1]

 

The validity of the Australian jurisdiction’s interpretation of the various appeal statutes to mean one appeal only is the subject of much debate. Many academics and the occasional judge have argued that this interpretation is simply not accounted for in the wording of the various appeals statutes.[2] All of the various Australian provisions, as well as the original English provisions upon which Australian criminal law was modelled, simply state that a person ‘may appeal’ a conviction in certain circumstances. Therefore, no number of appeals are provided for in the legislation. In fact, it has been argued that the interpretation of the wording to mean a singular appeal was historically influenced by ‘judicial distaste for the expansion of the appellate rights for convicted prisoners’.[3]

 

Importantly, this interpretation is justified on that basis that any potential miscarriages of justice can be remedied by the petitions process.[4] However, the ability of the pardon provisions to adequately remedy an injustice is also is subject to much scrutiny. The first area of critique is that the petitions process takes place within a political environment and therefore it is quite often subject to conflicts of interest. When considering a petition, a Governor or Governor-General usually seeks the advice of various legal practitioners within the public service. Clearly, this presents a conflict of interest when those legal advisors may tailor their advice in light of the fact that it could reflect badly on themselves, their department, their colleagues, the government, or even the criminal justice system itself.[5] This means that while Governors and Governor-Generals are technically members of the executive, there is a very real possibility that the determination of a petition is subject to political considerations and/or public pressures beyond their immediate arm of government. Not only would this almost always result in the applicant being at a severe disadvantage, it is clearly in breach of the separation of powers.[6] As stated by Justice Kirby, the current system dictates that a prisoner arguing innocence ‘seek redress from the Attorney-General. Yet this may be the very office-holder who has ultimate responsibility for the agencies … that the prisoner alleges to have been wanting if a miscarriage of justice is to be found and corrected’.[7]

 

Secondly, as highlighted above there is very little concrete guidance that applies to the determination of mercy petitions. One thing that is established is that the petitions process affords the Attorney-General unfettered discretion.[8] While on one hand this could work in the applicant’s favour, on the other it may also be detrimental to an applicant. As was held in Von Einem v Griffin (1998) 72 SASR 110 the courts have generally accepted that: the petition and statutory referral powers confers no legal rights on the applicant, the Attorney-General has a unfettered discretion in the matter and may decide on the petition as they please which includes ignoring or rejecting the petition without having to give reasons for doing so, and the decision-making process of the Attorney-General is itself not subject to judicial review.[9] Clearly, the potential for an executive to refuse a petition without even exercising their power is unsatisfactory and arguably flies in the face of the rule of law.[10] While this paper does not seek to suggest that this is how members of the executive operate, the fact that the parameters surrounding the process allow this to occur in the first place, and, the fact that there is no transparency or legal redress if this does highlights a gross inability of the petitions process to adequately remedy miscarriages of justice. Ultimately, even the Attorney General of Tasmania has conceded that the ‘[the petitions] process is open to criticism as lacking transparency, accountability and independence’.[11]

 

Lastly, while the implementation of a second right of appeal is seen to be a positive move for the Australian justice system, there could be an argument that its fresh evidence requirements may unduly restrict legitimate miscarriages of justice in certain circumstances.[12] Importantly, there is some debate over whether the statutory definition is more rigid than previous common law requirements regarding fresh evidence. Under both the common law and the statutory test, the applicant must show that they exercised ‘reasonable diligence’ in seeking exculpatory evidence at the time of the trial. Thus, fresh evidence is linked to the requirement for due diligence. However, the common law goes somewhat further in that new evidence as opposed to fresh evidence may still be admissible ‘if the interests of justice’ require it.[13] In other words, the courts consider if there is a substantial risk that a miscarriage of justice will occur if the evidence is not admitted.[14] In R v Drummond (No 2) [2015] SASCFC 82 (‘Drummond’), the second case that considered the new South Australian appeals provision, Justice Peek followed this flexible approach. He stated that as the requirement for fresh evidence was linked to the requirement for due diligence, evidence that is new but is not fresh can be admissible if that evidence was not presented to the original trial court due to the Crown’s failure to disclose material to the defence. In other words, if there is a failure by the prosecution to disclose relevant evidence, or, if the evidence was not admitted due to a false or misleading identification of evidence by the prosecution then this will be considered ‘fresh’ evidence under the new provisions.[15]

 

Ultimately, this raises questions over whether or not this flexible approach towards fresh evidence could apply to other circumstances outside of prosecutorial misconduct. For example, would the courts be as keen to incorporate elements of flexibility if the appeal concerns evidence that was available at the original trial, but was not presented due to the applicant’s inadequate legal counsel? Clearly such evidence would not be considered ‘fresh’ as it was available at the time of trial and with reasonable due diligence could have been presented to court.[16] While an applicant could appeal on the ground of inadequate legal counsel, given the high threshold Australia requires for this to be made out, there is arguably little rate of success in this area either.[17] Therefore, while Drummond is promising in that it suggests that the courts may be receptive to taking a flexible approach in their interpretation of the new statutory requirements, the fate of cases outside of prosecutorial non-disclosure of evidence and false and misleading claims remains to be seen.

 

 

 

OTHER STUFF

 

Neill-Fraser v Tasmania [2019] TASSC 10 (‘Neill-Fraser’) was the first case in which the Tasmanian Supreme Court considered section 402A. Owing to the absence of jurisprudence on the new provision, the judgement in Neill-Fraser relied heavily upon the case of Van Beelen v The Queen 262 CLR 565 (‘Van Beelen’) as this case analysed the almost identical South Australian secondary appeal provision. In Neill-Fraser the Court was asked to consider what ought to be the test for considering whether or not to grant leave to an appellant under section 402A and subsequently what ought to be the threshold for that test. Here, Justice Brett held that the test under section 402A is whether the applicant ‘has a reasonable case to present to the Court of Criminal Appeal in support of the grant of appeal’.[18] This therefore requires consideration of whether there is a reasonable argument of fresh and compelling evidence and whether the presence of that evidence amounts to the possibility that a substantial miscarriage of justice has occurred.[19] However, the Court did note that ‘commonly, where fresh evidence is compelling, the interests of justice will favour considering it on appeal’.[20] Ultimately, this test is to be considered in light of the tension between ‘the need to rectify a substantial miscarriage of justice upon the subsequent discovery of fresh and compelling evidence, and the desirability of the finality of litigation’.[21]

 

Neill-Fraser also provided some analysis on what constitutes fresh and compelling evidence, with particular focus being on compelling evidence.[22] Citing the judgement of Van Beelen, the Court held that in the absence of any other direction, the words ‘reliable’, ‘substantial’ and ‘highly probative’ must be given their ordinary meaning.[23] While each of the three are separate limbs, it is acceptable that there will be some overlap between them. To this end, evidence is said to be reliable if it is credible and provides a trustworthy basis for fact finding.[24] Substantial evidence is said to be evidence that ‘is of real significance or importance with respect to the matter it is tendered to prove’.[25] Lastly, evidence that is both substantial and reliable is likely to meet the test of highly probative, however not always.[26] On this point of probative value Neill-Fraser elaborated, stating that while ‘each piece of evidence asserted as [highly probative in the context of the issues in dispute at the applicant’s original trial] must be assessed independently, but [the] probative value (of such evidence) may be informed by its effect when considered together with other evidence, including evidence adduced at trial, and other evidence subsequently put forward as fresh and compelling evidence’.[27] In other words, when considering whether evidence is highly probative to the issues considered at the applicant’s appeal and therefore whether the evidence is compelling, the Court is able to consider that value in light of the case as a whole.

 

 

[1] There are many other critiques, including those relating to the ‘proviso’ which allows courts to dismiss an appeal in the event that an error occurred but this did not amount to a substantial miscarriage of justice, critiques relating to the inability of the High Court to hear fresh evidence, critiques relation to the lack of a Criminal Case Review Commission (or similar body) in Australia, critiques relating to the lack of 100% certainty relating to the standard of proof required for beyond reasonable doubt, as well as critiques relating to the requirement for leave, see: Catherine Penhallurick, ‘The Proviso In Criminal Appeals’ (2003) 27(3) Melbourne University Law Review 800; Bibi Sangha and Robert Moles, ‘Post-Appeal Review Rights: Australia, Britain and Canada’ [2012] 36 Criminal Law Journal 300, 307-8; Lynne Weathered, ‘Does Australia Need a Specific Institution to Correct Wrongful Convictions?’ (2007) 40(2) The Australian and New Zealand Journal of Criminology 179; Hamer (n 10) 280; Chris Corns, ‘Leave to Appeal in Criminal Cases: The Victorian Model’ (2017) 29(1) Current Issues in Criminal Justice 39. This has left some academics arguing that Australia’s post-conviction mechanisms may fall short of our requirements under international law, see: Bibi Sangha, Robert Moles And Kim Economides, ‘The New Statutory Right of Appeal in South Australian Criminal Law: Problems Facing an Applicant – Unanticipated Interpretive Difficulties’ (2014) 16(1) Flinders Law Journal 145, 155.

[2] Justice Kirby (n 8) 300.

[3] Ibid.

[4] D’Orta-Ekenaike (n 6); Bibi Sangha and Robert Moles, Miscarriages of Justice: Criminal Appeals and the Rule of Law in Australia (Lexis Nexis, 2015) 71.

[5] David Caruso, ‘Return of the Wrongly Convicted: The Test for Post-Conviction Executive References in Australia’ [2011] 57 Studies in Law, Politics and Society 125, 132.

[6] Lynne Weathered, ‘Pardon Me: Current Avenues for the Correction of Wrongful Conviction in Australia’ (2005) 17(2) Current Issues in Criminal Justice 203, 212.

[7] Justice Kirby (n 8) 301.

[8]  Von Einem v Griffin (1998) 72 SASR 110, [121].

[9] Von Einem v Griffin (1998) 72 SASR 110, [121]; Bibi Sangha and Robert Moles, ‘Mercy or Right? Post-Appeal Petitions in Australia’ [2012] 14 Flinders Law Journal 293, 294-5.

[10] Bibi Sangha and Robert Moles, ‘Post-Appeal Review Rights: Australia, Britain and Canada’ [2012] 36 Criminal Law Journal 300, 311.

[11] In the Legislative Council of Tasmania the Attorney-General reported a case from 2002 where a prisoner who had undergone major neurosurgery had the remainder of his sentence remitted by the Governor on a petition for mercy because the medical advice was that ‘maintaining the man in prison would put him at extreme risk’, see: Tasmania, Parliamentary Debates, Legislative Council, 15 October 2015 (Vanessa Goodwin, Attorney-General). This was the second reading of the Criminal Code Amendment (Second or Subsequent Appeal for Fresh and Compelling Evidence) Bill 2015 (Tas). This point was repeated in Tasmania, Parliamentary Debates, House of Assembly, 22 September 2015 (Will Hodgman, Premier).

[12] See also Bibi Sangha, Robert Moles and Kim Economides, ‘The New Statutory Right of Appeal in South Australian Criminal Law: Problems Facing an Applicant – Unanticipated Interpretive Difficulties’ (2014) 16(1) Flinders Law Journal 145 for discussion of other various critiques of the South Australian secondary review provision.

[13] R v Bain [2004] 1 NZLR 638, [22].

[14] Lundy v R [2013] UKPC 28, [117] citing R v Bain [2004] 1 NZLR 638, [22].

[15] Bibi Sangha, ‘The Statutory Right to Second or Subsequent Criminal Appeals in South Australia and Tasmania’ (2015) 17(2) Flinders Law Journal 471, 499.

[16] This is the scenario presented in Weathered, ‘Pardon Me: Current Avenues for the Correction of Wrongful Conviction in Australia’ (n 80) 210. While this paper was written prior to the enactment of the new subsequent appeal provisions, it is still pertinent to highlighting the difficulty in fresh versus new evidence requirements and the extent to which the courts may (or may not) take a flexible approach.

[17] Weathered, ‘Pardon Me: Current Avenues for the Correction of Wrongful Conviction in Australia’ (n 80) 210.

[18] Neill-Fraser v Tasmania [2019] TASSC 10, 3 (‘Neill-Fraser’).

[19] Ibid.

[20] Van Beelen v The Queen (2017) 262 CLR 565, 578 (‘Van Beelen’).

[21] Neill-Fraser (n 65) 3.

[22] Ibid 3-5.

[23] Ibid 4 (Brett J) quoting Van Beelen (n 67) 577 (Bell, Gageler, Keane, Nettle and Edelman JJ).

[24] Van Beelen (n 67) 577 (Bell, Gageler, Keane, Nettle and Edelman JJ) citing R v Keogh (No 2) (2014) 121 SASR 307, 337.

[25] Neill-Fraser (n 65) 4 (Brett J) quoting Van Beelen (n 67) 577 (Bell, Gageler, Keane, Nettle and Edelman JJ).

[26] Ibid.

[27] Neill-Fraser (n 65) 5.