Justice Legislation Amendment (Criminal Appeals) Bill 2019

October 31, 2019

I rise to make a contribution on the Justice Legislation Amendment (Criminal Appeals) Bill 2019. This is a fairly significant piece of legislation. I would like to start by talking about the fact that the government is proposing to abolish the right to a de novo hearing on appeal to the County Court. Now, I see that as something very concerning. It reflects to some extent a lack of understanding of the pressures that exist in our Magistrates Court in terms of the hearings that are happening there. The government contends that in most appeal cases there would be a requirement that victims and witnesses not give evidence again. A de novo appeal is where the whole case is heard again, effectively a fresh trial so victims and witnesses do then have to give their evidence again if that is the case. However, it must be remembered that in many cases in the Magistrates Court a plea of guilty may have been entered and it may be just the sentence that the person is appealing against, but once it goes up to the County Court then a full hearing would ensue to ensure that everything is heard and everything is before the court.

There is no doubt that our community wants to see a situation where victims in particular are not burdened with the need to repeat their story over and over. I think all of us understand that, especially in cases of family violence and child sexual abuse—those sorts of cases where there has been so much effort made over the years to deal sensitively with witnesses and victims who have to give evidence in those circumstances—that is truly welcomed. I think generally everyone in the community supports that. I have to say that in Shepparton just recently we had the Attorney-General come and open the first family violence court in Victoria. That has been as a result of many things but also part of the fact that we actually have a new courthouse in Shepparton that has been built in recent years. It left the old—I suppose you would call it 1930s, 1940s—courthouse that had not been used for many years available to be completely refurbished and turned into the family violence centre. Within that there are numerous meeting rooms so that barristers, solicitors, victims—all those involved—have plenty of places to meet. There is a big, large area where people can congregate, but they have to go through security. There is then a special room set aside where a witness or a victim can give their evidence in a separate room, videoed through to the court where the hearing is taking place, and they can have a support person with them. These are just amazing facilities that we now have in Shepparton to deal sensitively with the many sorts of cases where you really are concerned about that overexposure of witnesses. I do go back to the fact that in our Magistrates Court there are very many practical decisions made when the person is before the court, and very often it is the case that a person will choose to plead guilty and take their chances on a sentence.

On the other hand they could elect to go to trial. It might be a more serious matter and they could elect to have their case go straight to the County Court for trial. There are a couple of factors here that concern me. One is that there will be less inclination for people to have cases dealt with summarily if they feel that they are not fully prepared or if they are perhaps unrepresented. Many people before the Magistrates Court are unrepresented. We only know too well how stretched legal aid funding is and how there are many people in our community who face court on their own unrepresented. They might talk briefly to a duty lawyer. I have been in court many times where the queue for the legal aid lawyer sitting in that duty office is very long. 

I think another aspect of this will be that many people will seek to have their cases adjourned rather than dealing with them on the day. In some ways the Magistrates Court can be seen as rough justice, but it is a practical and quick solution for many people with more minor charges. When it is more serious, people really need to consider whether they are prepared to take the chance before a magistrate, particularly if they know they are not going to be able to have a further hearing or have their case dealt with at another level later on. That is a situation that really concerns me, and it is a reason why I do not support the removal of de novo hearings on appeal.

The Magistrates Court in our state works at the coalface. They get criticised up and down, up hill and down dale. I have to say that during the last Parliament the campaign run by the Herald Sun in its criticism of the judiciary, in particular magistrates and judges whose sentences were not liked, was really concerning. It prodded the government, I believe, to do some things that were perhaps in retrospect not the best. We know that we now have so many people on remand in our prisons. Our prisons are bursting at the seams. Our magistrates have really been criticised so much when their workloads have increased dramatically over time. They get criticised for soft sentencing. That is a fictitious phenomenon that is not reflected in the statistics. Just recently we had the Sentencing Advisory Council come to Wangaratta to run effectively mock courts where members of the public would come in, sit in the courtroom and hear all the evidence for themselves and then they would decide on what would be an appropriate sentence. The sentencing council have done this in many places, and they have found that members of the public will generally sentence more harshly than a magistrate or judge does. It just reflects that notion that magistrates who actually hear all the evidence, see the witnesses and understand the nuances of every case are making some pretty good decisions a lot of the time, especially when they have got the time to do it. Members of the public who think magistrates are making wrong decisions are often misinformed in that regard and would probably be much harder themselves.

I think it is very important that we support our judicial system at every level because history will tell us that bad and fair outcomes will be caused where judges and magistrates are under pressure, where they do not have the time and where they do not have before them the evidence they require to deal with the issues before them. I spoke against mandatory sentencing in this place two years ago when that issue was before this Parliament. That legislation went through, as we know, but I think there is a real concern around that, because again, it removes from the judiciary the ability to take into account every factor relating to a person, and it is not appropriate that we respond to the media when we are thinking about how our justice system should look. I see that the Minister for Youth Justice is here today. It has been very refreshing to hear in this 59th Parliament a change in the way we are thinking about prisoners, about the prison system and about young people. There is a discussion now about restorative justice, and there is a discussion about intervention in early childhood. The minister at the table is coming to Shepparton in the near future to meet with various groups who are working so hard in that area of early intervention, because we know in our communities who the next young people are who will be going to jail, and if we do not intervene at an early stage for those young people, then that is what will happen—they will just become statistics in the justice system. All the evidence now shows that early intervention can change the trajectory of young people’s lives, young people who have been subject to environmental trauma, to family violence and to all sorts of things and who are often dysfunctional in schools. Programs in schools that provide a therapeutic environment for them to be dealt with are now being shown to have a really significant effect. We have the Lighthouse Project in Shepparton also working towards young people having better outcomes. So while I support the bill generally, I have my concerns.

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