Question On Notice No. 2650 asked in the Legislative Council on 30 October 2019 by Hon Alison Xamon
Question Directed to the: Leader of the House representing the Attorney General
Parliament: 40 Session: 1
Question
I refer to the Criminal Appeals Amendment Bill 2019, and I ask:
(a) can
a Royal Commission quash the conviction;
(b) will the Bill apply to people who have already completed their sentence;
(c) in what “special circumstances” can the decision on the application for leave be made during the appeal or when giving judgment on it, rather than as a separate matter;
(d) is the special leave decision itself appellable:
(i) if yes to (d), in what circumstances; and
(ii) if no to (d), what is the policy reason for Western Australia taking a different approach from Tasmania, where I understand that if leave is refused, that decision is reviewable;
(e) is the special leave decision reviewable under South Australia’s similar law;
(f) regarding the requirement that the application for special leave must be served on any other person the court requires (as well as the parties to the trial):
(i) who is this likely to be; and
(ii) if it could include victims, what would their role in the proceedings be and what is the position of the Victim Support Service regarding that;
(g) what if any impact does the Bill have on either the criminal injuries compensation or civil damages process, for example:
(i) is there any change regarding when or how the victim can apply;
(ii) what happens if the victim has received compensation/damages and afterwards the conviction is quashed, especially if it’s on the basis the person is likely innocent; and
(iii) what happens if the previously convicted person has reimbursed criminal injuries compensation paid to the victim or paid damages to the victim, and afterwards the conviction is quashed, especially if it’s on the basis the person is likely innocent;
(h) if the appeal is successful, is there (still) no compensation for the previously convicted person unless an ex gratia payment is made by Government;
(i) regarding legal aid:
(i) in what circumstances will legal aid be available for these criminal appeal cases;
(ii) how many cases are expected to be brought immediately; and
(iii) does Legal Aid WA need increased resources to meet this need;
(j) was the 2012 report of the South Australian Parliament’s Legislative Review Committee on the Criminal Cases Review Commission Bill 2010, which discussed a variety of models in other jurisdictions for dealing with this sort of issue, considered when developing this Bill:
(i) if yes to (j), is any of the information about those models now outdated;
(k) what was the motivation for the Attorney General’s amendment in the other place to include negligence/incompetence of defence as a ground;
(l) what is the policy reason for Western Australia taking a different position on substitute verdicts from Tasmania’s version of this law;
(m) will this Bill apply to a case of tainted evidence as that term is understood in section 46H Criminal Appeals Act 2004; and
(n) has any negative feedback been received on the Bill:
(i) if yes to (n), please provide details?
Answered on 4 December 2019
(a) – (n) The Member will be offered a full briefing on the Criminal Appeals Amendment Bill 2019 before it is brought on for debate in the Legislative Council, which has not been able to occur this year. The Government is using the intervening period to monitor the experience of other jurisdictions introducing similar legislation, including the Justice Legislation Amendment (Criminal Appeals) Bill 2019 introduced to the Victorian Parliament on 16 October 2019. The McGowan Government is currently considering proposed amendments to the Bill. The Member will be offered a briefing on any proposed amendments well before debate moves to Committee of the Whole.