Page 1226 - Week 04 - Thursday, 5 May 2022
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appeal must be in the interests of justice. An appeal right of this kind already exists in three Australian jurisdictions: South Australia, Tasmania and Victoria. It has allowed a number of wrongful convictions in those jurisdictions to be identified and addressed, which would likely have otherwise gone unremedied. As stated by Justice Michael Kirby, with reference to measures taken by governments to address wrongful convictions:
There is no merit in the finality of the conviction of the innocent or legal indifference to their plight. Protecting the innocent is a badge of a civilised society that upholds universal human rights.
This government is committed to providing the ACT community with the fairest criminal justice system possible, a system in which we can have confidence that criminal convictions are just, and, where they are not—where they are wrongful—they can be readily identified and an appropriate remedy, such as a re-trial, provided to the convicted person. The consequences of a wrongful conviction for the convicted person and their family are so dire that every effort must be made by governments to put in place systems that will discover them as quickly and efficiently as possible in order to minimise the terrible harm that results from such a conviction.
The proposed new right to appeal on the basis of fresh and compelling evidence is one such system. The appeal right could be expected to be used rarely, as seen by the experience of South Australia, Tasmania and Victoria. The proposed criteria for granting leave to appeal provide a clear but high threshold that must be met before the Court of Appeal will consider the convicted person’s case. Despite its likely rare use, the appeal right is important. It would provide a clearer, more accessible pathway to scrutinise convictions. It would promote even greater confidence in the criminal justice system and the fairness of any criminal convictions that it produces.
I want to acknowledge that appeals against conviction or sentence, while an important component of our justice system, do impact victims of crime. Victim Support ACT currently provides a range of supports to victims of crime engaging with the criminal justice system, including the provision of counselling and other therapeutic services; advocacy to help victims access their rights and address concerns in the criminal justice system; and the financial assistance scheme and a court support program. These supports would be available for victims of crime where a conviction is appealed under the proposed new right to appeal.
The discussion paper seeks the views of justice stakeholders and members of the public on a range of issues, including whether the right to appeal against conviction should apply to all criminal convictions or only to serious offences; the orders a court should be able to make following a successful appeal; and different legislative appeal models that already exist in South Australia, Tasmania and Victoria.
I look forward to receiving submissions from all interested parties to help develop best practice right to appeal legislation for the ACT. The discussion paper also seeks views on the right to compensation for a wrongful conviction. This right exists under the Human Rights Act. In accordance with that act, if anyone is punished because of a conviction and the conviction is reversed or the person is pardoned because new
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