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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Criminal Appeals Amendment Bill 2019 Contents Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Criminal Appeals Act 2004 amended 3. Act amended 3 4. Part 3A inserted 3 Part 3A -- Further appeals against conviction Division 1 -- Preliminary 35B. Application of Part 3A 3 35C. Term used: offender 3 35D. Terms relating to evidence 3 Division 2 -- Rights of appeal 35E. Second or subsequent appeal against conviction 4 Division 3 -- Commencing and deciding appeals 35F. Special leave to appeal required in all cases 5 35G. Commencing appeal 6 35H. Decision on appeal 6 Division 4 -- Fees and costs 35I. No fees 7 35J. Costs against appellant 7 5. Section 53 inserted 8 53. Review of amendments made by the Criminal Appeals Amendment Act 2019 8 103--2 page i Criminal Appeals Amendment Bill 2019 Contents Part 3 -- Consequential amendments to other Acts Division 1 -- Bail Act 1982 amended 6. Act amended 9 7. Section 15A amended 9 Division 2 -- Criminal Procedure Act 2004 amended 8. Act amended 9 9. Section 121 amended 9 Division 3 -- Fines, Penalties and Infringement Notices Enforcement Act 1994 amended 10. Act amended 10 11. Section 101B amended 10 Division 4 -- Supreme Court Act 1935 amended 12. Act amended 10 13. Section 57 amended 10 14. Section 58 amended 10 page ii Western Australia LEGISLATIVE ASSEMBLY (As amended during consideration in detail) Criminal Appeals Amendment Bill 2019 A Bill for An Act to amend the Criminal Appeals Act 2004 to introduce rights of further appeal against conviction, and to make consequential amendments to -- the Bail Act 1982; and the Criminal Procedure Act 2004; and the Fines, Penalties and Infringement Notices Enforcement Act 1994; and the Supreme Court Act 1935. The Parliament of Western Australia enacts as follows: page 1 Criminal Appeals Amendment Bill 2019 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Criminal Appeals Amendment Act 2019. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) Part 1 -- on the day on which this Act receives the 7 Royal Assent; 8 (b) the rest of the Act -- on a day fixed by proclamation, 9 and different days may be fixed for different provisions. page 2 Criminal Appeals Amendment Bill 2019 Criminal Appeals Act 2004 amended Part 2 s. 3 1 Part 2 -- Criminal Appeals Act 2004 amended 2 3. Act amended 3 This Part amends the Criminal Appeals Act 2004. 4 4. Part 3A inserted 5 After section 35A insert: 6 7 Part 3A -- Further appeals against conviction 8 Division 1 -- Preliminary 9 35B. Application of Part 3A 10 This Part applies to an offender whether the offender 11 was convicted of the offence to which an appeal under 12 this Part relates before or after the Criminal Appeals 13 Amendment Act 2019 came into operation. 14 35C. Term used: offender 15 In this Part -- 16 offender has the meaning given in section 22. 17 35D. Terms relating to evidence 18 (1) For the purposes of this Part, evidence relating to an 19 offence of which an offender was convicted is fresh -- 20 (a) if, despite the exercise of reasonable diligence, 21 the evidence was not and could not have been 22 tendered at the trial of the offence or any 23 previous appeal; or 24 (b) if -- 25 (i) the evidence was not tendered at the 26 trial of the offence or any previous 27 appeal but, with the exercise of page 3 Criminal Appeals Amendment Bill 2019 Part 2 Criminal Appeals Act 2004 amended s. 4 1 reasonable diligence, could have been 2 tendered at the trial of the offence or 3 any previous appeal; and 4 (ii) the failure to tender the evidence was 5 due to the incompetence or negligence 6 of a lawyer representing the offender. 7 (2) For the purposes of this Part, evidence relating to an 8 offence of which an offender was convicted is new if 9 the evidence was not tendered at the trial of the offence 10 or any previous appeal but, with the exercise of 11 reasonable diligence, could have been tendered at the 12 trial of the offence or any previous appeal. 13 (3) Despite subsection (2), evidence is not new evidence if 14 it is fresh evidence under subsection (1)(b). 15 (4) For the purposes of this Part, evidence relating to an 16 offence of which an offender was convicted is 17 compelling if it is highly probative in the context of the 18 issues in dispute at the trial of the offence. 19 Division 2 -- Rights of appeal 20 35E. Second or subsequent appeal against conviction 21 (1) Subject to this Part, an offender convicted of an 22 offence on indictment may bring a second or 23 subsequent appeal to the Court of Appeal against 24 conviction if -- 25 (a) there is fresh and compelling evidence relating 26 to the offence; or 27 (b) there is new and compelling evidence relating 28 to the offence. 29 (2) Evidence is not precluded from being admissible on an 30 appeal brought under this Part just because it would not 31 have been admissible in the earlier trial of the offence 32 resulting in the relevant conviction. page 4 Criminal Appeals Amendment Bill 2019 Criminal Appeals Act 2004 amended Part 2 s. 4 1 Division 3 -- Commencing and deciding appeals 2 35F. Special leave to appeal required in all cases 3 (1) Special leave of the Court of Appeal is required for 4 each ground of appeal in an appeal brought under this 5 Part. 6 (2) The Court of Appeal may decide whether or not to give 7 special leave to appeal with or without written or oral 8 submissions from the parties to the appeal. 9 (3) Except as provided in subsection (4), the Court of 10 Appeal must decide whether to give special leave to 11 appeal before the hearing of the appeal. 12 (4) If the Court of Appeal is satisfied that there are special 13 circumstances, it may give special leave to appeal at 14 the hearing of, or when giving judgment on, the appeal. 15 (5) After an appeal has commenced, the Court of Appeal 16 must not give special leave to appeal on a ground of 17 appeal unless it is satisfied -- 18 (a) the ground identifies fresh and compelling 19 evidence or new and compelling evidence that 20 should, in the interests of justice, be considered 21 on an appeal; and 22 (b) the ground has a reasonable prospect of 23 succeeding. 24 (6) Unless the Court of Appeal gives special leave to 25 appeal on at least one ground of appeal, the appeal is 26 taken to have been dismissed. 27 (7) No appeal lies against -- 28 (a) a decision of the Court of Appeal made under 29 this section; or page 5 Criminal Appeals Amendment Bill 2019 Part 2 Criminal Appeals Act 2004 amended s. 4 1 (b) a decision of a single judge of appeal made 2 under the Supreme Court Act 1935 section 61 3 for the purposes of this section. 4 35G. Commencing appeal 5 (1) An appeal under this Part must be commenced and 6 conducted in accordance with this Part and rules of 7 court. 8 (2) An appeal under this Part must be commenced by 9 lodging with the Court of Appeal an application for 10 special leave to appeal that sets out the grounds for 11 appeal. 12 (3) On commencing an appeal, the appellant must serve a 13 copy of the application for special leave to appeal on 14 the other party or parties to the proceedings before the 15 trial court. 16 (4) The Court of Appeal may at any time order the 17 appellant to serve a copy of the application for special 18 leave to appeal on any other person that the court 19 thinks fit. 20 35H. Decision on appeal 21 (1) Unless, under subsection (2) or (4), the Court of 22 Appeal allows an appeal, it must dismiss the appeal. 23 (2) The Court of Appeal must allow an appeal based on 24 fresh and compelling evidence if it is satisfied there 25 was a miscarriage of justice. 26 (3) Despite subsection (2), even if one or more grounds 27 might be decided in favour of the offender, the Court of 28 Appeal may dismiss the appeal if it considers that no 29 substantial miscarriage of justice has occurred. 30 (4) The Court of Appeal must allow an appeal based on 31 new and compelling evidence if it is satisfied on the page 6 Criminal Appeals Amendment Bill 2019 Criminal Appeals Act 2004 amended Part 2 s. 4 1 balance of probabilities that, in light of all the 2 evidence, the evidence establishes that the offender is 3 innocent. 4 (5) If the Court of Appeal allows the appeal, it must set 5 aside the conviction of the offence and must -- 6 (a) order a new trial; or 7 (b) enter a judgment, and deal with the offender in 8 a manner, referred to in section 30(5)(b) to (e). 9 (6) If the Court of Appeal orders a new trial under 10 subsection (5)(a), section 34 applies, with any 11 necessary modifications, as if the appeal had been 12 brought under Part 3. 13 (7) If the Court of Appeal enters a judgment under 14 subsection (5)(b), section 30(6) applies, with any 15 necessary modifications, as if the appeal had been 16 brought under Part 3. 17 Division 4 -- Fees and costs 18 35I. No fees 19 A party to an appeal under this Part must not be 20 charged a fee by a court for, or in respect of, any act or 21 proceeding that relates to the appeal or its 22 commencement. 23 35J. Costs against appellant 24 (1) This section applies if an application for special leave 25 to appeal under this Part is dismissed under 26 section 35F(6). 27 (2) The Court of Appeal may order the appellant to pay 28 another party's costs of, or relating to, the appeal. 29 (3) If the Court of Appeal orders the appellant to pay any 30 costs under subsection (2), section 21 applies, with any page 7 Criminal Appeals Amendment Bill 2019 Part 2 Criminal Appeals Act 2004 amended s. 5 1 necessary modifications, as if the order were made 2 under that section. 3 4 5. Section 53 inserted 5 After section 52 insert: 6 7 53. Review of amendments made by the Criminal 8 Appeals Amendment Act 2019 9 (1) The Minister must review the operation and 10 effectiveness of the amendments made to this Act by 11 the Criminal Appeals Amendment Act 2019, and 12 prepare a report based on the review, as soon as 13 practicable after the 5th anniversary of the day on which 14 the Criminal Appeals Amendment Act 2019 section 4 15 comes into operation. 16 (2) The Minister must cause the report to be laid before 17 each House of Parliament as soon as practicable after it 18 is prepared, but not later than 12 months after the 19 5th anniversary. 20 page 8 Criminal Appeals Amendment Bill 2019 Consequential amendments to other Acts Part 3 Bail Act 1982 amended Division 1 s. 6 1 Part 3 -- Consequential amendments to other Acts 2 Division 1 -- Bail Act 1982 amended 3 6. Act amended 4 This Division amends the Bail Act 1982. 5 7. Section 15A amended 6 In section 15A(2): 7 (a) in paragraph (c) delete "Supreme Court." and insert: 8 9 Supreme Court; or 10 11 (b) after paragraph (c) insert: 12 13 (d) a single judge of appeal. 14 15 Division 2 -- Criminal Procedure Act 2004 amended 16 8. Act amended 17 This Division amends the Criminal Procedure Act 2004. 18 9. Section 121 amended 19 In section 121(2) and (4)(a) delete "Part 3" and insert: 20 21 Part 3 or 3A 22 page 9 Criminal Appeals Amendment Bill 2019 Part 3 Consequential amendments to other Acts Division 3 Fines, Penalties and Infringement Notices Enforcement Act 1994 amended s. 10 1 Division 3 -- Fines, Penalties and Infringement Notices 2 Enforcement Act 1994 amended 3 10. Act amended 4 This Division amends the Fines, Penalties and Infringement 5 Notices Enforcement Act 1994. 6 11. Section 101B amended 7 In section 101B(1)(b) delete "Part 2 or 3" and insert: 8 9 Part 2, 3 or 3A 10 11 Division 4 -- Supreme Court Act 1935 amended 12 12. Act amended 13 This Division amends the Supreme Court Act 1935. 14 13. Section 57 amended 15 In section 57(2) and (4)(a) delete "Part 3" and insert: 16 17 Part 3 or 3A 18 19 14. Section 58 amended 20 In section 58(1)(f) delete "Part 3" and insert: 21 22 Part 3 or 3A 23 24
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