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LAW REFORM COMMITTEE De Novo Appeals to the County Court

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LAW REFORM COMMITTEE De Novo Appeals to the County Court LAW REFORM COMMITTEE De Novo Appeals to the County Court Ordered to be Printed Melbourne Government Printer October 2006 Parliamentary Paper No. 230 of Session 2003-06. Photo: The Liberty Group/Challenger Financial Services Group Graphic Artist: Ms Deborah Friedrich, QBee Art & Design Parliament of Victoria Law Reform Committee De Novo Appeals to the County Court ISBN – 0-9757984-2-1 Level 8, 35 Spring St Melbourne, VIC 3000 Tel: (03) 9651 3644 [email protected] Website: www.parliament.vic.gov.au/lawreform Committee Membership and Staff C OMMITTEE M EMBERSHIP Chair Mr Rob Hudson, MLA Deputy Chair Mr Noel Maughan, MLA Members Hon Richard Dalla-Riva, MLC Ms Dianne Hadden, MLC Hon Geoff Hilton, MLC Hon David Koch, MLC Ms Dympna Beard, MLA Ms Liz Beattie, MLA Mr Tony Lupton, MLA S TAFF Executive Officer Ms Merrin Mason Acting Executive Officer Dr Peter Chen (from 18 September 2006) Research Officer Mr Nathan Bunt Office Manager Ms Jaime Cook Acting Office Manager Ms Sallyann Webster (January to March 2006) i Functions of the Committee F UNCTIONS OF THE C OMMITTEE Parliamentary Committees Act 2003 12. Law Reform Committee (1) The functions of the Law Reform Committee are, if so required or permitted under this Act, to inquire into, consider and report to the Parliament on any proposal, matter or thing concerned with— (a) legal, constitutional or parliamentary reform; (b) the administration of justice; (c) law reform. ii Terms of Reference T ERMS OF R EFERENCE The Governor in Council, under section 12 of the Parliamentary Committees Act 2003, requests that the Law Reform Committee of Parliament inquire into and report to Parliament on County Court Appeals with a particular regard to the following: 1. the historical justifications for appeals from the Magistrate's Court to the County Court being heard de novo and whether such justifications continue to exist; 2. the effects of the 1999 changes to County Court Appeals and the extent to which the procedures are applied in practice; 3. the desirability or otherwise of any change having regard to any changes to the seriousness of offences heard by the Magistrates’ Court; 4. the effect on the number of appeals should the current rights of appeal be changed; 5. if that number would be reduced, the savings to the County Court which would follow; 6. whether any proposed change would affect the way in which hearings in the Magistrates Court are conducted; 7. if so, whether any anticipated gains in the County Court from the proposed change would be outweighed by additional costs in the Magistrates Court; 8. in general, how the Magistrates Court and the County Court operate as one system, and what if any changes to that system will produce the best outcomes for the justice system. This will be with a view to making recommendations on whether appeals from the Magistrate's Court to the County Court should continue to be hearings de novo, or whether they should be heard in some other way, and if so, what. iii Table of Contents TABLE OF C ONTENTS List of Tables............................................................................................................................ ix Foreword .............................................................................................................................. xi Recommendations .................................................................................................................xiii Executive Summary ...............................................................................................................xv Historical and contemporary justifications......................................................................................... xvi Chapter One – Introduction.................................................................................................... 1 Background to the inquiry.....................................................................................................................1 Conduct of the inquiry...........................................................................................................................2 Evidence gathering...........................................................................................................................2 Report...................................................................................................................................................3 De novo appeals in context ..................................................................................................................3 Efficiency and fairness..........................................................................................................................5 Chapter Two — De Novo Appeal and Criminal Justice in Victoria ................................... 7 Types of appeal....................................................................................................................................7 De novo appeal ................................................................................................................................7 Rehearing .........................................................................................................................................8 Strict appeal......................................................................................................................................9 The Victorian criminal justice system ...................................................................................................9 Court hierarchy ...............................................................................................................................10 Offence classification......................................................................................................................10 De novo appeal in Victoria .................................................................................................................16 Right of appeal ...............................................................................................................................16 How the appeal is heard.................................................................................................................17 The historical justifications for de novo appeals.................................................................................19 English origins ................................................................................................................................19 Australian origins............................................................................................................................22 Historical justifications for de novo appeals ...................................................................................26 The purposes of appeal......................................................................................................................30 Performance of the de novo appeal system.......................................................................................33 Appeal numbers .............................................................................................................................33 Appeal grounds ..............................................................................................................................33 v De Novo Appeals to the County Court Rates of abandonment .................................................................................................................. 33 The rate of appeal.......................................................................................................................... 33 Appeals by principal offence.......................................................................................................... 35 Relationship between appeal numbers and workload................................................................... 37 The 1999 changes to the right of appeal........................................................................................... 38 Effect on appeal numbers and the rate of appeal ......................................................................... 40 Effect on appeals abandoned and non-appearances.................................................................... 42 Evidence provided by witnesses ................................................................................................... 43 Chapter Three — The Alternatives to De Novo Appeal..................................................... 49 The case for change.......................................................................................................................... 49 Alternatives suggested by witnesses................................................................................................. 50 Magistrates’ Court of Victoria ........................................................................................................ 50 Victoria Police................................................................................................................................ 51 Director of Public Prosecutions ..................................................................................................... 53 Other avenues of appeal from the Magistrates’ Court....................................................................... 53 Appeals in indictable matters............................................................................................................. 54 Other jurisdictions.............................................................................................................................
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