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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Appeals Amendment Bill 2021
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 this Part 3
35C. Term used: offender 3
35D. Fresh, new and compelling evidence 3
Division 2 -- Rights of appeal
35E. Second or subsequent appeal against
conviction 4
Division 3 -- Commencing and deciding appeals
35F. Leave to appeal required in all cases 5
35G. Commencing appeal 5
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 Criminal
Appeals Amendment Act 2021 8
35--1 page i
Criminal Appeals Amendment Bill 2021
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
Criminal Appeals Amendment Bill 2021
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 2021
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Criminal Appeals Amendment Act 2021.
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 2021
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 this Part
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 2021 came into operation.
14 35C. Term used: offender
15 In this Part --
16 offender has the meaning given in section 22.
17 35D. Fresh, new and compelling 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
page 3
Criminal Appeals Amendment Bill 2021
Part 2 Criminal Appeals Act 2004 amended
s. 4
1 appeal but, with the exercise of
2 reasonable diligence, could have been
3 tendered at the trial of the offence or
4 any previous appeal; and
5 (ii) the failure to tender the evidence was
6 due to the incompetence or negligence
7 of a lawyer representing the offender.
8 (2) For the purposes of this Part, evidence relating to an
9 offence of which an offender was convicted is new if
10 the evidence was not tendered at the trial of the offence
11 or any previous appeal but, with the exercise of
12 reasonable diligence, could have been tendered at the
13 trial of the offence or any previous appeal.
14 (3) Despite subsection (2), evidence is not new evidence if
15 it is fresh evidence under subsection (1)(b).
16 (4) For the purposes of this Part, evidence relating to an
17 offence of which an offender was convicted is
18 compelling if it is highly probative in the context of the
19 issues in dispute at the trial of the offence.
20 Division 2 -- Rights of appeal
21 35E. Second or subsequent appeal against conviction
22 (1) Subject to this Part, an offender convicted of an
23 offence on indictment may bring a 2nd or subsequent
24 appeal to the Court of Appeal against 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.
page 4
Criminal Appeals Amendment Bill 2021
Criminal Appeals Act 2004 amended Part 2
s. 4
1 (2) Evidence is not precluded from being admissible on an
2 appeal brought under this Part just because it would not
3 have been admissible in the earlier trial of the offence
4 resulting in the relevant conviction.
5 Division 3 -- Commencing and deciding appeals
6 35F. Leave to appeal required in all cases
7 (1) Leave of the Court of Appeal is required for each
8 ground of appeal in an appeal brought under this Part.
9 (2) Except as provided in subsection (3), the Court of
10 Appeal must decide whether to give leave to appeal on
11 a ground of the appeal before the hearing of the appeal.
12 (3) If the Court of Appeal considers it necessary or
13 desirable, it may give leave to appeal at the hearing of,
14 or when giving judgment on, the appeal.
15 (4) After an appeal has commenced, the Court of Appeal
16 must not give leave to appeal on a ground of appeal
17 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 (5) Unless the Court of Appeal gives leave to appeal on at
25 least 1 ground of appeal, the appeal is taken to have
26 been dismissed.
27 35G. Commencing appeal
28 (1) An appeal under this Part must be commenced and
29 conducted in accordance with this Part and rules of
30 court.
page 5
Criminal Appeals Amendment Bill 2021
Part 2 Criminal Appeals Act 2004 amended
s. 4
1 (2) An appeal under this Part must be commenced by
2 lodging with the Court of Appeal an application for
3 leave to appeal that sets out the grounds for appeal.
4 (3) On commencing an appeal, the appellant must serve a
5 copy of the application for leave to appeal on the other
6 party or parties to the proceedings before the trial
7 court.
8 (4) The Court of Appeal may at any time order the
9 appellant to serve a copy of the application for leave to
10 appeal on any other person that the court thinks fit.
11 35H. Decision on appeal
12 (1) Unless, under subsection (2) or (4), the Court of
13 Appeal allows an appeal, it must dismiss the appeal.
14 (2) The Court of Appeal must allow an appeal based on
15 fresh and compelling evidence if it is satisfied there
16 was a miscarriage of justice.
17 (3) Despite subsection (2), even if 1 or more grounds
18 might be decided in favour of the offender, the Court of
19 Appeal may dismiss the appeal if it considers that no
20 substantial miscarriage of justice has occurred.
21 (4) The Court of Appeal must allow an appeal based on
22 new and compelling evidence if it is satisfied on the
23 balance of probabilities that, in light of all the
24 evidence, the evidence establishes that the offender is
25 innocent.
26 (5) If the Court of Appeal allows the appeal, it must set
27 aside the conviction of the offence and must --
28 (a) order a new trial; or
29 (b) enter a judgment, and deal with the offender in
30 a manner, referred to in section 30(5)(b) to (e).
page 6
Criminal Appeals Amendment Bill 2021
Criminal Appeals Act 2004 amended Part 2
s. 4
1 (6) If the Court of Appeal orders a new trial under
2 subsection (5)(a), section 34 applies, with any
3 necessary modifications, as if the appeal had been
4 brought under Part 3.
5 (7) If the Court of Appeal enters a judgment under
6 subsection (5)(b), section 30(6) applies, with any
7 necessary modifications, as if the appeal had been
8 brought under Part 3.
9 Division 4 -- Fees and costs
10 35I. No fees
11 A party to an appeal under this Part must not be
12 charged a fee by a court for, or in respect of, any act or
13 proceeding that relates to the appeal or its
14 commencement.
15 35J. Costs against appellant
16 (1) This section applies if an application for leave to
17 appeal under this Part is dismissed under
18 section 35F(5).
19 (2) The Court of Appeal may order the appellant to pay
20 another party's costs of, or relating to, the appeal.
21 (3) If the Court of Appeal orders the appellant to pay any
22 costs under subsection (2), section 21 applies, with any
23 necessary modifications, as if the order were made
24 under Part 2.
25
page 7
Criminal Appeals Amendment Bill 2021
Part 2 Criminal Appeals Act 2004 amended
s. 5
1 5. Section 53 inserted
2 After section 52 insert:
3
4 53. Review of amendments made by Criminal Appeals
5 Amendment Act 2021
6 (1) The Minister must review the operation and
7 effectiveness of the amendments made to this Act by
8 the Criminal Appeals Amendment Act 2021, and
9 prepare a report based on the review, as soon as
10 practicable after the 5th anniversary of the day on which
11 the Criminal Appeals Amendment Act 2021 section 4
12 comes into operation.
13 (2) The Minister must cause the report to be laid before
14 each House of Parliament as soon as practicable after it
15 is prepared, but not later than 12 months after the
16 5th anniversary.
17
page 8
Criminal Appeals Amendment Bill 2021
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 2021
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
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