Jim McGinty

Jim McGinty

Attorney General; Minister for Health; Electoral Affairs

    Prosecutors may get right of appeal

    14/01/2006 1:00 AM

    The State Government is considering introducing new laws to give prosecutors the right to appeal decisions in serious criminal trials if they believe the judge has made an error in directing the jury.

    Attorney General Jim McGinty said he was looking at amending the Criminal Appeals Act so that criminals could not walk free because of a judge’s mistake.

    “If there has been a miscarriage of justice because a judge misdirects a jury, I can see no reason why the prosecution should not have the right to appeal,” Mr McGinty said.

    “People accused of murder, rape, child sex offences and drug trafficking should not walk free just because a judge has made an error.

    “We do not intend to interfere with the sanctity of jury verdicts but where there is evidence that a jury has been misdirected and that may have led to an acquittal, then the Court of Appeal should determine if the judge was right or wrong.”

    The Attorney General said the move paved the way for people acquitted because of a judge’s error to be retried.

    “The law relating to appeals is skewed in favour of the defendant in that only a person convicted of a crime has the right to appeal,” he said.

    “If an accused gets off because of a judge’s mistake, there is no recourse and that is unjust for victims and their loved ones.”

    The current law only allows the Attorney General to refer questions of law to the Court of Appeal and the court’s decision does not affect or overturn the original verdict.

    Mr McGinty said referrals of questions of law to the Court of Appeal were rare but necessary to ensure judges did not make the same mistake twice.

    In the last 10 years, the Attorney General has referred only four cases to the Court of Appeal.

    Mr McGinty said he had just referred a case to the Court of Appeal involving a truck driver acquitted in November 2005 on a charge of drug trafficking.

    A man who for legal reasons can only be reffered to as "R" was charged with possession with intent to supply or sell after police found 1.8 kilograms of cannabis in a sealed cardboard box in the rear of his truck just after he had crossed the Western Australian border from South Australia.

    Questions of law were raised during the trial about what degree of knowledge is required to establish possession.

    Previous High Court decisions relating to drug trafficking and possession have said it is sufficient to establish an awareness, or belief in the likelihood, that an item in question is a prohibited drug.

    Mr McGinty said the Director of Public Prosecutions believed that the trial judge had erred in "R's" case by instructing the jury that it had to be proven that the accused specifically knew what he had in the box was a prohibited drug.

    “Although the outcome of the appeal will not affect or invalidate the acquittal of "R", it is an opportunity to ensure the same mistake is not made in future trials of this nature,” the Attorney General said.

    He said the State would pay "R" legal costs for the appeal.

    Attorney General's office: 9220 5000