Fresh and compelling evidence appeal laws could soon be a reality in WA
Advertisement

Fresh and compelling evidence appeal laws could soon be a reality in WA

Fresh and compelling evidence appeal laws could soon be a reality in WA, with confirmation the Attorney General John Quigley is "preparing documents" on the matter for the government's consideration.

The laws, also known as right to appeal legislation, are currently only in place in South Australia and Tasmania.

The new legislation will remove powers of the Attorney General in matters of appeal.

The new legislation will remove powers of the Attorney General in matters of appeal.Credit:Darren Pateman

In WA currently, if a person convicted of a crime has exhausted all avenues of appeal, but then discovers 'fresh and compelling evidence', they must first get approval from the Attorney General for their case to be heard at the Court of Appeal.

The Attorney General is also under no obligation to give any reasons for a decision on whether or not to refer the case to the Court of Appeal.

Advertisement
Perth lawyer Tom Percy QC (center).

Perth lawyer Tom Percy QC (center).Credit:6pr

But legislation in South Australia and Tasmania cuts out the middle-man in the Attorney General, entirely, for people in the same set of circumstances

In those states they can apply directly to the Court of Appeal, who can then determine whether or not the fresh and compelling evidence is sufficient to warrant an acquittal or a retrial.

A spokesperson for the Department of Justice told WAtoday Mr Quigley supported such legislation.

"The Attorney General is in favour of such legislation and is in the process of preparing the necessary documents for government's consideration," the department spokesperson added.

In South Australia, the legislation was used several years ago by Adelaide man Henry Keogh, who was jailed for life in 1994 for the murder of his fiancee.

He was freed from jail in 2014 and his conviction was quashed on the basis of fresh and compelling evidence.

In Tasmania, the legislation has allowed 63-year-old Sue Neill-Fraser to mount a last ditch appeal to clear her name, after she was convicted in 2010 of killing her husband on their yacht on Australia Day in 2009.

Several Perth lawyers have long voiced their support for the legislation to be introduced in WA.

Prominent WA lawyer Tom Percy QC is one of them.

"What we want is a situation where it is taken out of the hands of the Attorney General and put in the hands of a judge, a judge who has to observe certain standards in making that decision and has to give reasons," Mr Percy said.

"Why not let a court decide if there is fresh evidence?

"If a court says no, a court says no, we can live with that because the court gives comprehensive reasons."

Former Governor of Western Australia and barrister Malcolm McCusker QC said the current situation in WA with regards to fresh evidence appeals "has long been thought to be unsatisfactory."

"First, it makes the Attorney the judge of whether or not the case should go back to the Court of Appeal for a re-hearing," Mr McCusker said.

"It is undesirable for a politician to be put in that position. It is far better that the question of whether the fresh evidence warrants a further appeal should be decided by the Court of Appeal itself.

"I might add that one argument which has sometimes been raised against this legislation is that it might open the floodgates and have a host of applications flooding the Court of Appeal.

"No such thing has happened either in South Australia or Tasmania."

Phil covers breaking news with a focus on court, crime and police for WAtoday.

Most Viewed in National

Loading
Advertisement