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De novo appeals a vital 'safety net'

De novo appeals a vital 'safety net'

By Karin Derkley

Access to Justice Courts Sentencing 


Scrapping the right of a defendant to have their Magistrates' Court criminal matter heard anew in a higher court is unjustified and could lead to miscarriages of justice, practitioners have warned.

The Victorian government has proposed to abolish de novo appeals, which give defendants the right to challenge a conviction and sentence and have their matters heard afresh in the County Court. The proposal is contained in the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill 2018.

An accused will no longer be able to change their plea on appeal without leave under the new laws. Sentence appeals will be determined on the evidence and materials already heard by the original court, and may only be allowed if the County Court considers there is a compelling reason to impose a different sentence. The magistrate's reasons for the original sentence must be taken into account when considering the appeal.

The government says the new laws are needed because the current system "places a considerable burden on victims and witnesses who are required to give their evidence again during appeal proceedings. The system also consumes large amounts of County Court time and resources".

But LIV president Belinda Wilson says that de novo appeals are an essential means by which access to justice and consistency of justice are upheld in Victoria. The LIV has sent a letter to the Attorney-General expressing its concerns about the move.

"De novo appeals perform an important role in balancing the need to ensure that there is public confidence in the just and equitable dealing with criminal matters dealt with summarily, and the need to produce efficient and timely results for victims, the accused and the community," Ms Wilson says.

"Without this opportunity, a 'safety net' for the summary justice system is lost and those without financial resources or those who face more serious sentences are significantly disadvantaged."

There is no evidence that de novo appeals place a "considerable burden" on victims and witnesses, or consume County Court time and resources. Less than 2 per cent of criminal matters finalised in the Magistrates' Court have been appealed over the past seven years.

LIV councillor and First Step Legal principal lawyer Tania Wolff says the right of appeal is an important safeguard and quality control mechanism because of the particular way in which the Magistrates' Court operates and its unique pressures.

More than 95 per cent of criminal matters are resolved at the Magistrates' Court, and a single magistrate can hear up to 100 different cases every day. With the speed and volume of matters processed by the Magistrates' Court, some percentage of error is inevitable, Ms Wolff says.

"Not only is there a greater caseload in that jurisdiction than ever before, and a limited time frame in which to hear the matters, but more and more serious matters are being heard in the Magistrates' Court, which makes the stakes higher in terms of punishment."

This is particularly the case for defendants who are marginalised, disadvantaged, intellectually disabled and mentally unwell and have not received adequate legal advice to present relevant evidence to a busy magistrate, she says.

Court events are likely to increase to enable all appropriate material to be put before the court prior to its final determination, the LIV's letter points out. "Plea hearings will take far longer, with witnesses being called, reports being more routinely relied upon and extensive submissions made to ensure that there is a proper basis for any subsequent appeal," it says.

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