Robertson O'Gorman

Part 1: Appeals Process in Queensland - Introduction, History and Queensland Process by Ella Scoles

Part 1 of a 3 part series explores the Appeals Process in Queensland.  In this blog, we look at the history of the Appeals process and what happens in Queensland.

1. Introduction

In Australia, the ability to seek relief from a criminal conviction comes in the form of a traditional post-conviction appeal, or, in very exceptional circumstances, through a pardon provision. These are both couched in state law.[1] While for a large amount of their histories, the various states and territories of Australia shared largely similar provisions relating to these two post-conviction limbs, more recently some discrepancies between the states have arisen. Traditionally, an Australian defendant (or appellant) only has one right of appeal, as is the case in Queensland, New South Wales, Northern Territory, Western Australia and the Australian Capital Territory. However, after a long campaign, in 2013, 2015 and 2019 respectively, South Australia, Tasmania and Victoria enacted legislation to allow for a second, or subsequent, right of appeal.[2] There is also a bill currently before the Western Australian Parliament that, if passed, will introduce a subsequent right of appeal in that State.

1. A history: The current appeals process generally

Australia’s historical experience with colonialism meant that each of Australia’s states and territories (eventually) adopted the United Kingdom’s ‘common form’ appeals provisions after their creation in 1907.[3] This is because under the Australian Constitution, each state and territory is granted the powers to administer their own criminal law.[4] Therefore, the ability to seek post-conviction relief (both through an appeal or a pardon provision) is confined by the parameters of each state or territory’s respective legislative provisions.[5] Importantly, the Australian post-conviction framework, as with all areas of the law, is grounded in the principle of finality. This dictates that once the court enters a perfected judgement that matter is over and may not be reopened except in narrow circumstances.[6] In this respect, as an appeals court must ‘not attempt to enlarge its jurisdiction beyond what Parliament has chosen to give’,[7] the Australian jurisdiction has interpreted the right of appeal to be restricted to one appeal only. This means that if an applicant has already exhausted their one appeal, no matter how compelling the ground of appeal or fresh exculpatory evidence may be, an appeals court simply cannot hear a new appeal. The adherence to the principle of finality is so rigid that even Australia’s highest court – the High Court – is unable to hear a secondary application from a person who has exhausted their appeals options but claims to be wrongfully convicted and has evidence to prove this.[8] While there is a power for a defendant to apply for special leave to hear their case in the High Court,[9] this leave is unfortunately incredibly difficult to obtain.[10] Even then, if fresh, exculpatory evidence comes to light, the High Court has maintained the view that it is not able to hear such evidence.[11]

• The Queensland appeals process

In Queensland, the criminal appeals process is governed by Chapter 67 of the Criminal Code Act 1899 (Qld) (‘the Queensland Code’). Under the Queensland Code a person convicted of an offence on indictment may appeal to the Court of Appeal either: against the person’s conviction on any question of law;[12] with the leave of the Court against the person’s conviction on a question of fact, a mixed question of fact and law, or any ground the Court considers appropriate;[13] or with the leave of the Court against the person’s sentence.[14] This must occur within one calendar month of the verdict’s delivery,[15] meaning that appeals are almost always built upon the evidence that was available at the original trial. If the appeal is not lodged within one month, an applicant is able to apply to the Court for an extension to this time limit,[16] however the Court is generally only inclined to approve this extension if the potential appellant can show good reason for the delay, or, that to deny the opportunity to appeal would result in an obvious miscarriage of justice.[17] The Court is encouraged to accept an appeal if the Court is of then opinion that: the verdict of the jury should be set aside on the ground that it is unreasonable, the verdict could not have be supported having regard to the evidence, the trial judgment should be set aside on the ground that it contained a wrong decision on a question of law, or if there was in anyway a miscarriage of justice.[18] However, notwithstanding the occurrence of a substantial miscarriage of justice, the Court is not bound to allow the appeal even if one of the grounds above are made out.[19] If an appeal is allowed, the Court of Appeal either orders a new trial in such manner as it thinks fit or quashes the conviction and directs a judgment and verdict of acquittal to be entered.[20] However, while in theory a ‘discretion exists’ that allows the Court of Appeal to acquit an appellant upon appeal, as opposed to ordering a retrial, Courts are generally reluctant to do so in an effort to not ‘usurp’ the functions of a jury.[21] Indeed, a Court of Appeal will ordinarily only enter a verdict of acquittal if it is ‘held that the case considered as a whole required a jury to acquit the appellant because it must entertain a reasonable doubt or that a conviction would necessarily be unsafe’.[22]

If, however, the traditional appeals process fails, and a person still maintains their innocence, then that person can appeal to the Queensland Governor for a pardon.[23] Couched in the discretionary power of the common law, these ‘petitions of mercy’ or ‘pardon’ provisions grant the Queensland Governor the ability to refer either some or the whole of the case to the Court of the Appeal.[24] If successful, a pardon does not erase the conviction in its entirety, instead it simply removes any punishments or penalties the person has endured or is enduring because of the conviction.[25] However, the context in which this unique post-appeals process operates is uncertain,[26] especially since the granting of pardons is exceptionally rare in Australia.[27] Generally, it is agreed that the discretion granted to the Governor is wider than that of a court in that they are ‘unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions.’[28] Therefore, issues not usually available to courts to consider in their decision making process,[29] as well as sources of information that may not overcome the laws of evidence in criminal trials,[30] are able to be taken in account by the Governor.

[1] See the following for appeals provisions: Criminal Appeal Act 1917 (NSW) s 5(1); Criminal Code Act 1899 (Qld) s 668D(1); Criminal Code Act 1983 (NT) s 410; Criminal Law Consolidation Act 1935 (SA) s 352(1); Criminal Code Act 1924 (Tas) s 401(1)(a); Supreme Court Act 1933 (ACT) s 37E; Criminal Appeals Act 2004 (WA) s 7; Criminal Procedure Act 2009 (Vic) s 274; see the following for petitions of mercy provisions: Crimes Act 1914 (Cth) ss 16–22A; Crimes (Appeal and Review) Act 2001 (NSW) ss 76–7; Crimes Act 1958 (Vic) s 584; Sentencing Act 1995 (WA) pt 19; Criminal Code Act 1924 (Tas) s 419; Criminal Code Act 1983 (NT) s 431; Crimes (Sentence Administration) Act 2005 (ACT) pt 13.2.

[2] Criminal Code Amendment (Second or Subsequent Appeal for Fresh and Compelling Evidence) Act 2015 (Tas); Justice Legislation Amendment (Criminal Appeals) Bill 2019 (Vic); Originally the Statutes Amendment (Appeals) Act 2013 (SA) enacted s 353A of the Criminal Law Consolidation Act 1935 (SA) which allowed for a subsequent right of appeal. On 5 March 2018 the Summary Procedure (Indictable Offences) Amendment Act 2017 commenced and section 11 of that Act repealed s 353A of the Criminal Law Consolidation Act 1935 (SA). Section 353A was re-enacted in identical form as Criminal Procedure Act 1921 (SA) s 159.

[3] See, eg, Mas Rivadavia v The Queen (2008) 236 CLR 358, 382 (French CJ), ‘it must be accepted that the question will ordinarily fall for consideration in the application of statutory language, in this case the common form provision for criminal appeals reflected in s 6(1) of the Criminal Appeal Act [1907 (UK)]’.

[4] Note that the Commonwealth of Australia Constitution Act 1901 (Cth) does not confer on the Commonwealth any express powers to legislate in regards to criminal law. While this does not completely bar the Commonwealth from creating criminal provisions, as all state constitutions have relevant powers allowing them to legislate on criminal matters, it has generally been accepted that states must create and administer their own criminal law, see Attorney-General’s Department, ‘The Constitution’, Federal Register of Legislation (Web Page, 1 January 2012) <https://www.legislation.gov.au/Details/C2005Q00193> viii-ix; Justice Michael Kirby, ‘A New Right of Appeal as a Response to Wrongful Convictions: Is it Enough?’ [2019] 43 Criminal Law Journal 299, 299.

[5] See above n 1.

[6] See D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (‘D’Orta-Ekenaike’).

[7] R v Edwards (No 2) [1931] SASR 376, 380.

[8] Justice Michael Kirby, ‘A New Right of Appeal as a Response to Wrongful Convictions: Is it Enough?’ [2019] 43 Criminal Law Journal 299, 300.

[9][9] Contained in Judiciary Act 1903 (Cth) s 35A.

[10] David Hamer, ‘Wrongful Convictions, Appeals, and the Finality Principle: The Need for a Criminal Cases Review Commission’ (2014) 37(1) UNSW Law Journal 270, 286.

[11] Mickelberg v R (1989) 167 CLR 259, 264, 298. This is owing to the High Court’s interpretation of the appellate powers conferred to it via the section 73 of the Australian Constitution. This appellate jurisdiction has been interpreted to exclude the original jurisdiction of states. Therefore, as fresh evidence requires ‘an independent and original decision’ to occur, and as this decision has been interpreted to fall within the remit of the jurisdiction of state courts, fresh evidence is not capable of being heard in the High Court. It should be noted that if a matter concerns fresh, exculpatory evidence the High Court does have the power to refer the matter back to the state courts to consider admitting that fresh evidence who then may refer the matter back once again to the High Court with this evidence admitted. However, this is unfortunately infrequently used, see Justice Kirby (n 8) 300.

[12] Criminal Code Act 1899 (Qld) (‘The Queensland Code’) s 688D(1)(a).

[13] Ibid s 688D(1)(b). There is also much debate over whether this requirement for leave is itself a deficiency of the Australian appeals process, see: Chris Corns, ‘Leave to Appeal in Criminal Cases: The Victorian Model’ (2017) 29(1) Current Issues in Criminal Justice 39. While the parameters of this essay mean that only the most prominent arguments relating to Australia’s post-conviction mechanisms can be discussed, this should still be noted as an area of debate.

[14] The Queensland Code ss 668E(3), 688D(1)(c), 671(1). Usually, this occurs on the basis the sentence was ‘manifestly inadequate’ in that the sentence was too harsh in light of the circumstances of the case. When an appeal is being made against a sentence, the Court of Appeal has the power to both increase or decrease the sentence if it is of the opinion that some other sentence is warranted at law and should have been passed.

[15] The Queensland Code s 671(1).

[16] Ibid s 671; Criminal Practice Rules 1999 (Qld) r 65(3) (Form 28).

[17] Caxton Legal Centre, ‘Appeal Against Conviction’ (Web Page, 21 December 2016) <https://queenslandlawhandbook.org.au/the-queensland-law-handbook/offenders-and-victims/court-processes-in-criminal-matters/appeals-against-conviction/>.

[18] The Queensland Code s 668E(1).

[19] Ibid s 668E(1A). There is also much debate over whether this ‘proviso’ allowing a court to effectively accept an error so long as it is not substantial is a major defect in Australia’s appeals framework, see: Catherine Penhallurick, ‘The Proviso In Criminal Appeals’ (2003) 27(3) Melbourne University Law Review 800. While the parameters of this essay mean that only the most prominent arguments relating to Australia’s post-conviction mechanisms can be discussed, this should still be noted as an area of debate.

[20] The Queensland Code ss 669, 668E(2).

[21] Martens v Commonwealth [2009] FCA 207, 127-8.

[22] Ibid 128.

[23] See above n 1.

[24] The Queensland Code s 672A.

[25] R v Foster [1985] QB 115, 118; Eastman v DPP (ACT) (2003) 214 CLR 318, 350-1.

[26] Sue Milne, ‘The Second or Subsequent Criminal Appeal, the Prerogative of Mercy and the Judicial Inquiry: The Continuing Advance of Post-Conviction Review’ (2015) 36(1) Adelaide Law Review 211, 217.

[27] See below n 94.

[28] Mallard v The Queen (2005) 224 CLR 125, 129.

[29] Such as public concern regarding the proprietary of the conviction, see: Mickelberg v R (1989) 167 CLR 259.

[30] Such as ‘reports in the media, a petition presented to Parliament, a representation from a parliamentary colleague, or perhaps hearsay evidence as to the reliability of a complainant’, see: Martens v Commonwealth [2009] FCA 207, 128-9.

by Robertson O'Gorman