On 25 July 2018, the Victorian Government announced that it would introduce the Justice Legislation Amendment (Unlawful Association and Criminal Appeals) Bill. This Bill, if passed, will abolish the right to a de novo appeal in Victoria.
What is a de novo appeal?
A de novo appeal is an appeal from the Magistrates’ Court to the County Court, where the County Court looks at the matter afresh as if there was never a previous decision. If a person decides to appeal their criminal conviction or sentence to the County Court, the Judge hearing the case does not consider the previous decision, or the evidence that was given at the previous hearing. Witnesses are called again to give evidence for a second time.
In a de novo appeal, the Judge is free to acquit without justification against the original decision. The judge is also free to sentence without reference to the original sentence. The presiding Judge imposes the sentence that is appropriate based on what is presented on appeal.
Why abolish the de novo appeal?
The argument that has been made by the government for the abolition of de novo appeals has been that the process takes up a lot of court resources and forces witnesses to give evidence and face cross-examination for a second time. For a victim, being subjected to cross examination can be a traumatic experience, where they are forced to relive the offence, and explain to the court the details of what happened.
Opponents of the changes have argued that while the rights of victims are important, the rights of the accused should never be eroded and that the de novo appeal play an important part of safeguarding those rights in the Victorian criminal justice system.
The new system of appeal
Under the proposed new system of appeals to the County Court, both appeals against conviction and appeals against sentence will be dealt with differently.
Appeals against conviction
Under the new system, appellants who appeal against their conviction will have their appeal determined by reference to the transcripts of the evidence given in the Magistrates’ Court. The appellant will be denied the ability to examine, cross-examine, or call new witnesses, without leave of the Court.
One of the main reasons that witnesses give evidence orally in a court, is so that the court can determine the candour of the witness. The witness’ conduct, body language and presentation of their evidence plays a part in assisting the court in determining how much weight should be given to the witness’s evidence. If the bill is passed, the court will be forced to determine whether the appellant was rightly convicted based on written transcripts provided to the Court. The ability of the judge to properly determine the evidence is deprived. However, the Court can grant leave to have a witness called to give their evidence.
Appeals against sentence
Defendants who appeal their sentence will have to convince the court that the sentence imposed was manifestly excessive. This means that the Judge will have to consider the initial sentence handed down by the Magistrate. If the sentence is within the ballpark for the offence the appellant was convicted of, then the court will be severely restricted in any alteration that it can make.
The positive side of this change is that the original decision maker has their decision considered by a higher court. This is how appeals from the County Court or Supreme Court to the Court of Appeal are conducted, with the appellant arguing that there was an error in the decision.
Is a change needed?
The current system has been effective for so many years, it raises many questions as to why the change needs to occur. Only a small percentage of matters decided by Magistrates are appealed. Even fewer are the subject of a de novo appeal.
However, some argue that under the proposed changes there will be better consistency in decisions determined on appeal to the County Court. When the County Court Judge hearing the appeal is forced to consider the initial decision, this may have a positive impact on the sentencing regime and sentencing practices overall. Magistrates are trained, experienced lawyers, who many argue, should not have their decisions ignored on appeal.
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By James Penny, Solicitor