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MOJO

RIGHT TO APPEAL

MOJOS MISSION IS TO GIVE FREEDOM TO THOSE THAT ARE WRONGLY INCARCERATED, AND BRING REFORM TO THE CURRENT APPEAL SYSTEM THAT IS RESPONSIBLE FOR THEIR INCARCERATION

“Finality is a good thing, but justice is a better” per Lord Atkin in Ras Behari Lal v King-Emperor (1933) Privy Council decision.

The finality principle is a legal principle that is, that once convicted, the conviction should stand.
This is all fair and well if the person is of true guilt to a crime, but what if there has been a miscarriage of justice, and all avenues of appeal within the country have been exhausted.... what happens then?

With the exception of South Australia and Tasmania, in other states and territory's where a criminal appeal has already been exhausted, the only avenue left for a convicted person to have their case potentially re-heard is through the 'petition referral procedure', that can only be granted by the Attorney General of that state or territory.  This power that is bestowed upon the Attorney General is known as the 'prerogative power of mercy'.

The Attorney General has the power to;

  • refer the matter to the Court of Criminal Appeal or relevant full court, or

  • to grant a full pardon to the convicted person, or

  • quash the applicants conviction.

The issue with this power is;

  • the attorney generals power is not subject to judicial review.

  • he/she doesn't have to consider the petition at all; there is no guarantee that once you submit that he/she will read and refer or consider.

  • and the petition procedure may breach article 14(5) of the International Covenant on Civil and Political Rights (ICCPR), as it requires Australia to ensure that there is a 'right to a review of a conviction and sentence on law and facts' and the 'right to introduce fresh evidence'.  This breach was noted by The Australian Human Rights Commission.

So what are Australian Politicians doing about this??

On the 5th may 2013, the South Australian Government enacted s353A of CLCA and established a statutory right for a subsequent appeal against conviction, based on the Keogh case and the fundamental breach of ICCPR.

In Tasmania, The Criminal Code Amendment (Second or Subsequent Appeal for Fresh and Compelling Evidence) Act 2015 was signed into law by Her Excellency on Monday 2 November 2015.

Western Australia is currently drafting secondary appeal legislation, due for en-action in late 2018

In Victoria, New South Wales, Queensland, Northern Territory.... no legislation has yet to be introduced for secondary appeal process. 

Should not all citizens of Australia have the right to a secondary appeal? 

Why is it that only selected states get this option? 

Are those living in 'other states and territories' second class citizens then? 

And why should one person decide another mans fate behind closed doors when his power is not subject to any judicial review whatsoever? 

 

When weighing up the two principles of finality and justice, to disregard a flaw in the process of appeal is evidently a breach of a persons fundamental human right to be heard.  Whilst finality is a good thing, to attain finality by not allowing a person to be heard... would ultimately cast a shadow of injustice over the entire system.

 

In the interests of justice and preserving the integrity of our judicial institution, all tiers of the justice system should be fair and conducted in accordance with legal principles and a persons fundamental human rights... no matter where they live within Australia.

What can you do?

Its imperative that as a society we unite as one to ensure that every citizen of Australia has a right to a secondary appeal in EVERY STATE.

To get 'a second appeal' enacted in every state, law needs to be amended to allow for this provision. The process differs slightly in every state, but the first and fundamental step is to advocate for this amendment.

 

To actively support MOJO and the mission... "to enact a second appeal", in your state and others, simply click on the State or Territory you live in to complete a 3 step advocate process to reform the state of injustice within your state. 

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