Published: 16 October 2015

Ms FORREST (Murchison) - Mr President, I support the bill.  I do not consider it contentious legislation.  It is quite appropriate legislation.  It is putting the decision back in the hands of the court, more so than the current law, which only allows petitions for mercy from the Attorney-General and ultimately the Governor on advice of the Premier.

 As the member for Mersey stated, it is better having 10 guilty men go free than one innocent man convicted wrongly.  As the member for Western Tiers said, I put myself in the shoes of people who have been convicted wrongly, like Lindy Chamberlain, a very well publicised case.  It must have been awful.  We have no concept of how awful that would have been.  It carries a huge lifelong impact, I am sure, and on her family.When cases occur where someone has been wrongfully convicted, we need a process that enables that to be considered when there is fresh and compelling evidence.  I note from the Leader's comments, and the bill, that it is restricted to serious crimes, as defined in Appendix D.  Whilst that may need a bit of a look at in the future, they are all serious crimes in that area.  I think it probably does need some framework around it, otherwise it is almost a free-for-all with even minor things.

When someone has a three-month jail term for a repeat drink-driving offence or something like that, by the time this was processed they would be out of prison anyway.  I think it is right to restrict it to those more serious crimes that attract a much longer term of imprisonment.  The Leader in her speech said:

This bill allows a convicted person who believes that there is 'fresh and compelling' evidence in relation to their case to seek leave of the court to bring an appeal to the Court of Criminal Appeal for the matter to be heard. …

Specifically, the evidence will be considered fresh if it was not presented at the original trial of the convicted person and was not discoverable by the convicted person or his or her legal representative exercising due diligence.  For evidence to be considered compelling the evidence must be reliable, substantial, and in the context of issues in dispute at the trial highly probative of innocence.

It is a reasonably high bar, as it should be, but there is the framework around that.  The Leader also noted that the issues of reliability, substantiveness and probative have been considered by courts again and again, and it is what they are in the business of doing.  It is far more appropriate for the court to undertake this role than an executive.  I believe it is good giving this option rather than leaving it with the Executive.  It also said the bill provides an equivalent right to a convicted person as is currently available to the DPP, as has been mentioned by other members, and adopts the corresponding aforementioned definitions.

The Leader said this bill represents a significant advance in the rights of the convicted person beyond that evidence in any other jurisdiction except South Australia, where similar amendments were enacted in 2013 and on which these amendments have been modelled.  I commend the Government for taking this approach and acting on this.

The Leader, in her speech, concluded that the bill provides a sensible and balanced approach to providing an avenue for genuine applications to be brought by convicted persons with a strong public interest in finality in criminal litigation.

I also sought some feedback from key stakeholders, including the Law Society.  They had no real issue with the bill but did raise four issues that I would like the Leader to address in her response.  The Law Society noted it has had some confirmation from the Attorney-General, and Leader here, that the prerogative of mercy will be retained.  I assume that is the case but I would like the Leader to put that on the public record here.

Section 402A(7) does not allow the court to order an alternative verdict, such as 'guilty of manslaughter' rather than 'murder'.  Has this been considered by the Government?  If not, why not, and is there any other detail the Leader would be able to provide on that?

The Law Society led me to believe it was unclear what is meant by the definition of the Full Court or the Full Court of the Court of Criminal Appeal and wanted some clarity around that.  If the Leader can address that, it would be helpful.

The fourth point, I wonder if the Leader could confirm the intention of this bill that the only avenue of appeal from the granting or refusal to grant leave to appeal would be to the High Court.

The Law Society supports the section of the bill that requires that there needs to be a substantive miscarriage of justice.  In reaching its decision on this it took into account the onus on the Crown under the current wording of section 402(2), which includes the phrase 'substantial miscarriage of justice', the nature of the proposed further right of appeal and the need for finality in criminal proceedings.

Whilst we have a very rare need for this sort of legislation, you would hope most of the time the courts get it right and the whole process of the investigation of a crime, the work of police, the work done in bringing someone to trial in the case of a serious crime such as this is of such a standard that we do not need this.

We know there are always advances in technology.  Other members have mentioned when DNA became a reliable source.  There were times when DNA was questionable, about whether you could rely on it.  Once that technology improved to the point it was reliable and you could have a fairly high degree of certainty to pinpoint a particular person in a particular place and things like that, it then became a usable tool.

Who knows what will happen in future that may make it easier for the police and the investigators to do their job and the lawyers to provide defence for those people who are innocent?  I know they do have to provide defence for those who are guilty too.  For those who are innocent it is entirely appropriate if there are new techniques or evidence that can be brought forward now and in the future which were not available at the time of the trial, and that there is an opportunity for that to be brought to the court for a proper hearing as opposed to someone having to seek mercy from the government, through the Attorney-General.

I support the bill.  I commend the Government for taking this step.



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