Criminal Code Amendment (Second or Subsequent Appeal for Fresh & Compelling Evidence) Bill 2015 No. 42

Read into Hansard on Thursday 15th October 2015

CRIMINAL CODE AMENDMENT (SECOND OR SUBSEQUENT APPEAL FOR FRESH AND COMPELLING EVIDENCE) BILL (No. 42) 

Second Reading

[3.07 p.m.]

Mr VALENTINE (Hobart) – Mr President, I also acknowledge those who gave briefings on this bill, both from within the department and also Dr Bob Moles – it certainly was interesting to hear opinions provided there.

There would be nothing worse than being convicted for something you know you did not do, as an individual.  It would be very difficult.  Of course, we all know that those behind bars generally will say they are innocent and many people do that.  I guess the job of our judicial system is to ensure to the best of its ability that sentences are as accurate as possible, and convictions.

This bill, to my mind, proposes to ensure that the avenues for appeal are adjusted to even further provide an opportunity to test the findings of an earlier court.  The question people may ask is, will it lead to a flood of appeals?  In putting a question to Dr Bob Moles yesterday, someone else, not me, indicated that in South Australia, in two years since they have brought in their legislation, there were two cases.  It seems not likely that we would have a flood of appeals.

My main concern turns on the term ‘fresh and compelling’.  I ask the Leader – and I read what is in the bill and it is quite fulsome in its explanation, but I would like to have it placed on record whether or not the mishandling of previously collected evidence, for instance, comes under the term ‘fresh and compelling’, and also whether it has to be both ‘fresh’ and ‘compelling’ as opposed to ‘fresh or compelling’.  I know that might sound as if I am splitting hairs there but I would like to know whether that might be the case.  If something, for instance, was collected for a trial and it was found later to have been mishandled or misinterpreted fundamentally, and further investigation reveals that this has been the case, depending on the nature of that mishandling, can that be considered ‘fresh’ or ‘compelling’ as opposed to not having been previously considered in the trial as being damning, if I can put it that way?

That is my concern, to make sure that we are providing every opportunity for evidence to be properly dealt with.  I read from the Leader’s second reading speech where it says –

The terms ‘fresh’ and ‘compelling’ evidence are defined in the bill and the definitions mirror current case law.  Specifically, evidence will be considered ‘fresh’ if it was not presented at the original trial …

In the case I am talking about, yes it would have been presented in the original trial.

of the convicted person and was not discoverable by the convicted person or his or her legal representative exercising due diligence.  For evidence to be considered ‘compelling’, the evidence must be reliable, substantial and in the context of issues in dispute at the trial, highly probative of innocence.

I am sure other members have probably asked similar questions but I want to have it placed on the record as to where that sort of evidence would fit in terms of the definition of ‘fresh and compelling’ and whether it has to be both or either.