Repeal of de novo appeals deferred to 2025?

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Victoria is the last jurisdiction where an offender can appeal a decision of the Magistrates’ Court to a court of intermediate appeal — here, the County Court — and the appeal is conducted as a rehearing (aka de novo appeal) rather than in the strict sense of an appeal which is a consideration of the correctness of the original decision. (If you’re really interested, you can read a bit about the history of de novo appeals in Victoria in the final report on De Novo Appeals to the County Court by the now-disbanded Law Reform Committee of the Victorian Parliament. The Committee made the point that although the Victorian legislation refers to a rehearing, appeals to the County Court in fact operate as de novo appeals, where whatever happened below is disregarded. I think of it like a game of snakes and ladders where all the pieces on the board go back to the start, or a game of chess where all the pieces are re-set. If you’re looking for judicial authority on the different types of appeal, see Eastman v The Queen (2000) 203 CLR 1, [130]. And the nature of Victoria’s de novo appeals was discussed in Candolim Pty Ltd v Garrett [2005] VSC 270, [30], but following the Court of Appeal’s decision in Fox v DPP (Vic) (2022) 66 VR 223, it might be that once a charge-sheet is amended in the Magistrates’ Court it’s treated as amended for any appeal before the County Court and the reasoning in Walters v Magistrates’ Court of Victoria [2015] VSC 88, [116]-[118] is no longer good law on that point.)

The Justice Legislation Amendment (Criminal Appeals) Act 2019 was to amend Criminal Procedure Act 2009 so that:

  • s 254 provides that an appeal to the County Court required leave for an appeal against conviction following a guilty plea in the Magistrates’ Court or conviction when the offender did not appear in the Magistrates’ Court
  • s 255A requires the appellant to file a summary of appeal notice within 28 days stating the grounds of appeal
  • s 256 provides that the appeal is a rehearing based on the evidence before the Magistrates’ Court and any evidence received on appeal in accordance with s 265E, and having regard to the reasons of the Magistrates’ Court
  • s 265E permits the appeal court to receive additional evidence if satisfied it is in the interests of justice to do so and, in the case of protected evidence (sexual and family violence offences), the evidence is substantially relevant to a fact in issue in the appeal.

The amendments would result in appeals from the Magistrates’ Court operating in a similar (but not exactly the same) manner to the procedure in NSW.

The explanatory memorandum to the Bill makes it clear that such appeals are intended to operate as rehearings, and not appeals de novo.

In NSW, the leading cases on its similar appeal provisions are Charara v The Queen (2006) 164 A Crim R 39; Gianoutsos v Glykis [2006] NSWCCA 137 and Attorney-General v DPP (NSW) [2015] NSWCA 218. They each refer to the High Court cases cited in the explanatory memorandum to the Victorian amending act, Fox v Percy (2003) 214 CLR 188 and Lacey v Attorney-General (Queensland) (2011) 242 CLR 573.

If these provisions do commence operation I reckon we’ll see some appeals on what is and is not “in the interests of justice”.

Some guidance will come from the legislation, with s 265E(2) providing:

  • 265E Further Evidence
  • (2) In determining whether it is in the interests of justice to receive evidence under this section, the appellate court must have regard to—
    • (a) the probative value of the evidence; and
    • (b) the right of the appellant to fully present their appeal; and
    • (c) if the evidence was not given before the Magistrates’ Court in the summary hearing—
      • (i) whether the evidence was available at the time of the summary hearing; and
      • (ii) why the evidence was not given in the summary hearing; and
    • (d) if the evidence was given in that hearing—
      • (i) whether the recording of the giving of the evidence in that hearing, or any part of that recording, is unavailable; and
      • Note
      • If the whole of the recording of the evidence that was given before the Magistrates’ Court is unavailable, the appellate court has a separate power to receive evidence. See section 265D(2).
      • (ii) if the recording is available, whether there is any other reason why the evidence should be given again.

In NSW, the similar provisions are found in the Crimes (Appeal and Review) Act 2001 Part 3. There, section 18 provides that appeals are a rehearing on the evidence given in the Local Court, except for when it is in the ‘interests of justice’ for a witness to testify at the appeal in accordance with section 19. The NSW legislation provides therefore that witnesses will not ordinarily be called on an appeal. The Victorian legislation does not in terms have the same restriction, but it does have the same ‘interests of justice’ test.

In NSW, the ‘interests of justice’ are primarily (but not solely) concerned with ensuring the accused receives a fair hearing: Chapman v Gentle (1987) 28 A Crim R 29, 32.

In Mickelberg v The Queen (No 3) (1992) 8 WAR 236, 251 – 252; 59 A Crim R 288, 302 – 303, the Supreme Court of WA held that the interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after receiving a fair trial, and extended also the public interest in the due administration of justice. If an issue was raised that might cast doubt on a verdict, it would likely be in the interests of justice to allow it to be explored.

And in Frutgniet v Attorney-General (NSW) (1997) 41 NSWLR 588, 604 – 605, Beazley JA canvassed several decisions on the interests of justice in the contest of deciding if an order should be made to transfer a prisoner interstate.

The explanatory memorandum explains the intended operation of the new provisions this way:

When determining the appeal the appellate court would be required to consider, for example, the transcript of the summary hearing, statements of witnesses that were in evidence before the Magistrates’ Court, and exhibits such as photographs of a crime scene, if that was the evidence before the Magistrates’ Court in the summary hearing.

While the appeal is based on the evidence given in the Magistrates’ Court, the grounds of appeal may include, for example, that the Magistrates’ Court made an error in admitting or excluding certain evidence. In these circumstances the appellate court may revisit the rulings made by the Magistrates’ Court and may determine that the Magistrates’ Court made an error in the admission or exclusion of evidence and, consequently, determine the appeal with or without having regard to that evidence, as the case may be.

The reasons of the Magistrates’ Court will ordinarily include an explanation about why the conviction was recorded in the original hearing. This may include comments or an assessment of the credibility and reliability of witnesses and their evidence. The appellate court is not obliged to accept the credibility and reliability findings of the Magistrates’ Court if, for example, the Magistrates’ Court has misused the advantage of seeing and hearing the witness, but neither should the appellate court attempt to speculate or decide the issues entirely afresh. Ultimately, the appellate court must determine whether there was sufficient evidence to support the conviction and give the judgment which in its opinion should have been given in the Magistrates’ Court.

This all sounds like appeals to the County Court would become much more similar to the present appeals to the Supreme Court, and will result in more work, not less, for magistrates and judges. The Court of Appeal suggested that might be so, in Makeham v Sheppard [2022] VSCA 242, [62], where Priest JA said:

When the changes to be effected by the Justice Legislation Amendment (Criminal Appeals) Act 2019 soon come into effect — one of the purposes in s 1(c)(i) of the Act being ‘to abolish de novo appeals against convictions recorded in summary proceedings and to provide instead for those appeals to be by way of rehearing’ — it may be expected that, all things being equal, magistrates will of necessity have to provide more detailed reasons for decision than they have generally been required to give in the past. That is because, once it comes into effect, the new s 256(1)(c) of the CPA will require the County Court to ‘determine the appeal by way of rehearing … having regard to the reasons of the Magistrates’ Court in the summary hearing’.

It would certainly mean that any lawyer worth their salt is going to be even more careful to dot every ‘i’ and cross every ‘t’, lest their failure to take a point prevents their client from taking an otherwise legitimate point of appeal in the event that becomes necessary.

The Justice Legislation Amendment (Criminal Appeals) Act 2019 s 2(3) provided that the amendments were to commence operation no later than 3 July 2021.

However, the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 s 124 amended the amendment so that the original amendments were to commence no later than 1 January 2023. (Which is why I had noted in my calendar to look at this for the New Year!) The reason given for this was set out in the explanatory memorandum, saying:

Changing the forced commencement date supports the implementation of these reforms by providing additional time to prepare for commencement, in light of the impact of COVID-19 on the justice system.

And then the amended amendment was further amended by the Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022 s 9 so that the original amendments are now to commence no later than 5 July 2025 (unless proclaimed to commence earlier). The explanatory memorandum doesn’t provide an explanation for the further delay, but a media release from the Attorney-General in February 2022 said:

The Bill will also delay the commencement of de novo appeal reforms given the current challenges facing the courts. This will allow time for the justice system to prepare for these important procedural changes which are designed to modernise appeals and reduce the burden on victims and witnesses.

I’m not confident the changes will reduce the burden on anyone, but in any event, it seems there’s a little more time until we find out!

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