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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Appeals Amendment Bill 2019
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Criminal Appeals Act 2004
amended
3. Act amended 3
4. Part 3A inserted 3
Part 3A -- Further appeals against conviction
Division 1 -- Preliminary
35B. Application of Part 3A 3
35C. Term used: offender 3
35D. Terms relating to evidence 3
Division 2 -- Rights of appeal
35E. Second or subsequent appeal against
conviction 4
Division 3 -- Commencing and deciding appeals
35F. Special leave to appeal required in all
cases 5
35G. Commencing appeal 6
35H. Decision on appeal 6
Division 4 -- Fees and costs
35I. No fees 7
35J. Costs against appellant 7
5. Section 53 inserted 8
53. Review of amendments made by the
Criminal Appeals Amendment Act 2019 8
103--2 page i
Criminal Appeals Amendment Bill 2019
Contents
Part 3 -- Consequential amendments
to other Acts
Division 1 -- Bail Act 1982 amended
6. Act amended 9
7. Section 15A amended 9
Division 2 -- Criminal Procedure Act 2004
amended
8. Act amended 9
9. Section 121 amended 9
Division 3 -- Fines, Penalties and Infringement
Notices Enforcement Act 1994 amended
10. Act amended 10
11. Section 101B amended 10
Division 4 -- Supreme Court Act 1935 amended
12. Act amended 10
13. Section 57 amended 10
14. Section 58 amended 10
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Criminal Appeals Amendment Bill 2019
A Bill for
An Act to amend the Criminal Appeals Act 2004 to introduce rights of
further appeal against conviction, and to make consequential
amendments to --
the Bail Act 1982; and
the Criminal Procedure Act 2004; and
the Fines, Penalties and Infringement Notices Enforcement
Act 1994; and
the Supreme Court Act 1935.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Appeals Amendment Bill 2019
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Criminal Appeals Amendment Act 2019.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) Part 1 -- on the day on which this Act receives the
7 Royal Assent;
8 (b) the rest of the Act -- on a day fixed by proclamation,
9 and different days may be fixed for different provisions.
page 2
Criminal Appeals Amendment Bill 2019
Criminal Appeals Act 2004 amended Part 2
s. 3
1 Part 2 -- Criminal Appeals Act 2004 amended
2 3. Act amended
3 This Part amends the Criminal Appeals Act 2004.
4 4. Part 3A inserted
5 After section 35A insert:
6
7 Part 3A -- Further appeals against conviction
8 Division 1 -- Preliminary
9 35B. Application of Part 3A
10 This Part applies to an offender whether the offender
11 was convicted of the offence to which an appeal under
12 this Part relates before or after the Criminal Appeals
13 Amendment Act 2019 came into operation.
14 35C. Term used: offender
15 In this Part --
16 offender has the meaning given in section 22.
17 35D. Terms relating to evidence
18 (1) For the purposes of this Part, evidence relating to an
19 offence of which an offender was convicted is fresh --
20 (a) if, despite the exercise of reasonable diligence,
21 the evidence was not and could not have been
22 tendered at the trial of the offence or any
23 previous appeal; or
24 (b) if --
25 (i) the evidence was not tendered at the
26 trial of the offence or any previous
27 appeal but, with the exercise of
page 3
Criminal Appeals Amendment Bill 2019
Part 2 Criminal Appeals Act 2004 amended
s. 4
1 reasonable diligence, could have been
2 tendered at the trial of the offence or
3 any previous appeal; and
4 (ii) the failure to tender the evidence was
5 due to the incompetence or negligence
6 of a lawyer representing the offender.
7 (2) For the purposes of this Part, evidence relating to an
8 offence of which an offender was convicted is new if
9 the evidence was not tendered at the trial of the offence
10 or any previous appeal but, with the exercise of
11 reasonable diligence, could have been tendered at the
12 trial of the offence or any previous appeal.
13 (3) Despite subsection (2), evidence is not new evidence if
14 it is fresh evidence under subsection (1)(b).
15 (4) For the purposes of this Part, evidence relating to an
16 offence of which an offender was convicted is
17 compelling if it is highly probative in the context of the
18 issues in dispute at the trial of the offence.
19 Division 2 -- Rights of appeal
20 35E. Second or subsequent appeal against conviction
21 (1) Subject to this Part, an offender convicted of an
22 offence on indictment may bring a second or
23 subsequent appeal to the Court of Appeal against
24 conviction if --
25 (a) there is fresh and compelling evidence relating
26 to the offence; or
27 (b) there is new and compelling evidence relating
28 to the offence.
29 (2) Evidence is not precluded from being admissible on an
30 appeal brought under this Part just because it would not
31 have been admissible in the earlier trial of the offence
32 resulting in the relevant conviction.
page 4
Criminal Appeals Amendment Bill 2019
Criminal Appeals Act 2004 amended Part 2
s. 4
1 Division 3 -- Commencing and deciding appeals
2 35F. Special leave to appeal required in all cases
3 (1) Special leave of the Court of Appeal is required for
4 each ground of appeal in an appeal brought under this
5 Part.
6 (2) The Court of Appeal may decide whether or not to give
7 special leave to appeal with or without written or oral
8 submissions from the parties to the appeal.
9 (3) Except as provided in subsection (4), the Court of
10 Appeal must decide whether to give special leave to
11 appeal before the hearing of the appeal.
12 (4) If the Court of Appeal is satisfied that there are special
13 circumstances, it may give special leave to appeal at
14 the hearing of, or when giving judgment on, the appeal.
15 (5) After an appeal has commenced, the Court of Appeal
16 must not give special leave to appeal on a ground of
17 appeal unless it is satisfied --
18 (a) the ground identifies fresh and compelling
19 evidence or new and compelling evidence that
20 should, in the interests of justice, be considered
21 on an appeal; and
22 (b) the ground has a reasonable prospect of
23 succeeding.
24 (6) Unless the Court of Appeal gives special leave to
25 appeal on at least one ground of appeal, the appeal is
26 taken to have been dismissed.
27 (7) No appeal lies against --
28 (a) a decision of the Court of Appeal made under
29 this section; or
page 5
Criminal Appeals Amendment Bill 2019
Part 2 Criminal Appeals Act 2004 amended
s. 4
1 (b) a decision of a single judge of appeal made
2 under the Supreme Court Act 1935 section 61
3 for the purposes of this section.
4 35G. Commencing appeal
5 (1) An appeal under this Part must be commenced and
6 conducted in accordance with this Part and rules of
7 court.
8 (2) An appeal under this Part must be commenced by
9 lodging with the Court of Appeal an application for
10 special leave to appeal that sets out the grounds for
11 appeal.
12 (3) On commencing an appeal, the appellant must serve a
13 copy of the application for special leave to appeal on
14 the other party or parties to the proceedings before the
15 trial court.
16 (4) The Court of Appeal may at any time order the
17 appellant to serve a copy of the application for special
18 leave to appeal on any other person that the court
19 thinks fit.
20 35H. Decision on appeal
21 (1) Unless, under subsection (2) or (4), the Court of
22 Appeal allows an appeal, it must dismiss the appeal.
23 (2) The Court of Appeal must allow an appeal based on
24 fresh and compelling evidence if it is satisfied there
25 was a miscarriage of justice.
26 (3) Despite subsection (2), even if one or more grounds
27 might be decided in favour of the offender, the Court of
28 Appeal may dismiss the appeal if it considers that no
29 substantial miscarriage of justice has occurred.
30 (4) The Court of Appeal must allow an appeal based on
31 new and compelling evidence if it is satisfied on the
page 6
Criminal Appeals Amendment Bill 2019
Criminal Appeals Act 2004 amended Part 2
s. 4
1 balance of probabilities that, in light of all the
2 evidence, the evidence establishes that the offender is
3 innocent.
4 (5) If the Court of Appeal allows the appeal, it must set
5 aside the conviction of the offence and must --
6 (a) order a new trial; or
7 (b) enter a judgment, and deal with the offender in
8 a manner, referred to in section 30(5)(b) to (e).
9 (6) If the Court of Appeal orders a new trial under
10 subsection (5)(a), section 34 applies, with any
11 necessary modifications, as if the appeal had been
12 brought under Part 3.
13 (7) If the Court of Appeal enters a judgment under
14 subsection (5)(b), section 30(6) applies, with any
15 necessary modifications, as if the appeal had been
16 brought under Part 3.
17 Division 4 -- Fees and costs
18 35I. No fees
19 A party to an appeal under this Part must not be
20 charged a fee by a court for, or in respect of, any act or
21 proceeding that relates to the appeal or its
22 commencement.
23 35J. Costs against appellant
24 (1) This section applies if an application for special leave
25 to appeal under this Part is dismissed under
26 section 35F(6).
27 (2) The Court of Appeal may order the appellant to pay
28 another party's costs of, or relating to, the appeal.
29 (3) If the Court of Appeal orders the appellant to pay any
30 costs under subsection (2), section 21 applies, with any
page 7
Criminal Appeals Amendment Bill 2019
Part 2 Criminal Appeals Act 2004 amended
s. 5
1 necessary modifications, as if the order were made
2 under that section.
3
4 5. Section 53 inserted
5 After section 52 insert:
6
7 53. Review of amendments made by the Criminal
8 Appeals Amendment Act 2019
9 (1) The Minister must review the operation and
10 effectiveness of the amendments made to this Act by
11 the Criminal Appeals Amendment Act 2019, and
12 prepare a report based on the review, as soon as
13 practicable after the 5th anniversary of the day on which
14 the Criminal Appeals Amendment Act 2019 section 4
15 comes into operation.
16 (2) The Minister must cause the report to be laid before
17 each House of Parliament as soon as practicable after it
18 is prepared, but not later than 12 months after the
19 5th anniversary.
20
page 8
Criminal Appeals Amendment Bill 2019
Consequential amendments to other Acts Part 3
Bail Act 1982 amended Division 1
s. 6
1 Part 3 -- Consequential amendments to other Acts
2 Division 1 -- Bail Act 1982 amended
3 6. Act amended
4 This Division amends the Bail Act 1982.
5 7. Section 15A amended
6 In section 15A(2):
7 (a) in paragraph (c) delete "Supreme Court." and insert:
8
9 Supreme Court; or
10
11 (b) after paragraph (c) insert:
12
13 (d) a single judge of appeal.
14
15 Division 2 -- Criminal Procedure Act 2004 amended
16 8. Act amended
17 This Division amends the Criminal Procedure Act 2004.
18 9. Section 121 amended
19 In section 121(2) and (4)(a) delete "Part 3" and insert:
20
21 Part 3 or 3A
22
page 9
Criminal Appeals Amendment Bill 2019
Part 3 Consequential amendments to other Acts
Division 3 Fines, Penalties and Infringement Notices Enforcement Act
1994 amended
s. 10
1 Division 3 -- Fines, Penalties and Infringement Notices
2 Enforcement Act 1994 amended
3 10. Act amended
4 This Division amends the Fines, Penalties and Infringement
5 Notices Enforcement Act 1994.
6 11. Section 101B amended
7 In section 101B(1)(b) delete "Part 2 or 3" and insert:
8
9 Part 2, 3 or 3A
10
11 Division 4 -- Supreme Court Act 1935 amended
12 12. Act amended
13 This Division amends the Supreme Court Act 1935.
14 13. Section 57 amended
15 In section 57(2) and (4)(a) delete "Part 3" and insert:
16
17 Part 3 or 3A
18
19 14. Section 58 amended
20 In section 58(1)(f) delete "Part 3" and insert:
21
22 Part 3 or 3A
23
24
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