Victoria Considering the new Right to Appeal Legislation

Posted by Barbara Etter APM on 30 May 2013 | 0 Comments

An article in The Age on 28 May 2013 indicates that Victoria is closely monitoring the new statutory right of appeal recently commenced in SA.  See It is thought that the Victorian Attorney-General may wait to see how many applications for appeal are made before considering the legislation. It is thought that the first two applications in SA will be from Henry Keogh and Edward Splatt (who has been pardoned  but whose actual conviction unfortunately still stands). The article also quotes from an opinion piece written by Justice Michael Kirby in the Australian Financial Review earlier this month where he stated that this innovative law should be welcomed by all. His comments included:

Risks of miscarriage of justice arise everywhere, but are specially dangerous where people's liberty is at stake. We need more effective remedies than the law of Australia now provides.

There is a high dependence among appellate judges on the diligence, capacity and inclinations often of one judge who will examine the appeal and write the primary decision. Effectively, this places great power over human liberty in the hands of one person. Experience has shown that errors slip through the system.

I have noted that there is substance in what Michael Kirby says in relation to appellate judges (in at least one matter I am familiar with) where one judge in each case seemingly took primary carriage of the matter, both in the Court of Criminal Appeal and the High Court. One judge, other than the one delivering the main judgement in the Court of Criminal Appeal, however, had clearly turned his mind to a critical issue in the case and, very appropriately, put on the record his concerns with this particular issue.

As Michael Kirby notes, errors can slip through the system. It is essential that Australia complies with its international human rights obligations and provides appropriate mechanisms of redress for those who may have been wrongfully convicted.


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