Criminal Appeals from a Magistrate - assurances of justice sought

	Extract from Hansard Legislative Council 19 October 1999

Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 1999 Spring Session Index Browse by Subject About the SA Parliament Hansard on line

The Hon. IAN GILFILLAN: I indicate that the Democrats will also support the second reading. The bill seeks to limit the number of criminal cases which go directly on appeal from a magistrate to a full court of the Supreme Court. In civil matters, when a losing party wishes to a appeal a magistrate's decision, at present it must go to a single judge of the Supreme Court. That judge may, at his or her discretion, refer the matter to a full bench of three Supreme Court judges. This is under section 40(3) of the Magistrate Courts Act 1991. However, in criminal matters, an appeal is made directly to a full bench unless the appellant elects to appeal to a single judge. The bill would abolish the right to have a full court hearing and require appeals to go at first instance only to a single judge. That judge can then refer the matter to a full bench if he or she deems it appropriate. According to the Attorney-General, this is `simple, sensible and conservative of resources' and, as usual, I would like to believe the Attorney-General.

However, I am concerned about the possibility that the change may result in some matters being heard for an additional time when this is not necessary. In the most complex or controversial criminal cases, it is possible now to have a matter heard four times: once by a magistrate, a second time on appeal by a single judge, a third time on appeal by the full bench, and a fourth time on appeal by the High Court. A defendant who has a very controversial case but only limited resources may, at present, be able to limit the maximum number of potential hearings to no more than three, by taking the first appeal directly to a full court and avoiding the appeal to a single judge.

In effect, this bill would close off one option for a cash-strapped defendant, which is the situation for most defendants. In his second reading explanation, the Attorney-General indicated that this option was not commonly exercised. It would be interesting to hear from the Attorney-General just how many criminal cases are heard in this way. For the rare criminal defendant with deep pockets who wants to drag out a case as long as possible or have as many bites at the cherry as possible, this bill really changes nothing. If unsuccessful with a magistrate, such an appellant can elect to appeal to a single Supreme Court judge, then lodge a further appeal with the full court, and finally with the High Court, provided a question of law is involved which the High Court believes is worthy of its attention.

To the extent that this happens, it may contribute to one of the legal system's biggest problems of public perception, that is, the belief that cases are sometimes dragged out and won only because the defendants involved had the biggest wallets. The only safeguard against this was mentioned by the Attorney-General, that is, the right to appeal to a full bench is not guaranteed to all appellants. In summary matters at least, he advises, an appeal to a full court is available only by leave of either the single judge or the full court itself. However, this is already the case. For major indictable matters, as I understand section 50 of the Supreme Court Act, an appeal from a single judge to a full court is and shall remain under the bill a matter of right. In either case, therefore, this bill does not alter or remove an advantage which a rich defendant might be able to exploit. However, it does remove one option which I suspect may have been of use to a few defendants who are poor in the financial sense. On the other hand, I acknowledge that this bill does not deny a right of appeal. It merely denies a choice in how that appeal can be exercised. If that appeal choice is exercised very infrequently, it may be that removing the right of appeal will do little if any injustice and may save some public funds.

In summary, we are supportive of any measure which can be demonstrated to reduce the cost of justice or improve access to justice. The Attorney-General believes that this bill is `simple, sensible and conservative of resources'. It may be all those things as far as the court is concerned, but I am unsure whether the same can be said for litigants, especially criminal defendants on serious charges who want to take their case straight to the top. I look forward to a response from the Attorney-General on the issues that have been raised in my second reading contribution. I indicate support for the second reading, and I reserve my final support until I hear the Attorney-General's arguments in committee.

Ian Gilfillan's questions were answered and the Bill was passed two days later: 21 October 1999