New laws introducing a statutory right for a person to make a second or subsequent appeal against a conviction in circumstances in which there is fresh and compelling or new and compelling evidence have passed through State Parliament.
Previously, a convicted person who exhausted all of their appeals had no further right to appeal, even if new evidence later emerged that had the potential to exonerate them or fresh evidence established that a substantial miscarriage of justice had occurred.
The only avenue of redress was to lodge a petition for the exercise of the royal prerogative of mercy by the Governor or petition the Attorney General to refer the case to the Court of Appeal.
The case of Scott Austic highlights the importance of the new laws. In April 2018, following a petition made on behalf of Mr Austic and upon the advice of the Solicitor General, Attorney General John Quigley referred the 2009 conviction of Mr Austic to the Court of Appeal. The petition, which had previously been rejected by the former Liberal Attorney General Michael Mischin, resulted in Mr Austic’s conviction being overturned. The case of Andrew Mallard is also well known.
The new laws will enable cases like Austic and Mallard to be presented directly to the Court of Appeal instead of being considered by the Attorney General of the day.
As stated by Attorney General John Quigley:
“It is distressing when we learn of an innocent person who has languished in a prison cell with years of their life stolen as a result of false imprisonment.
“Until now, the gift of further appeal has been the gift of a politician, which should never be the case.
“I have been a long-time proponent of removing politics from criminal appeals, and have been vocal about the need to create a passage of second and subsequent appeal direct to the Court of Appeal.
“If an error has occurred in the courts of law, that error should be corrected within the halls of justice and it should not be left to politicians to decide a person’s fate.
“This legislation will ensure that when new evidence is available showing that a person is innocent, they are given the opportunity to make a second or subsequent appeal against a conviction to the Court of Appeal.”
