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Prosecution Appeals in New South Wales: New Rights, Roles and Challenges for the Court of Criminal Appeal and the DPP

Nicholas Cowdery AM QC is the Director of Public Prosecutions for New South Wales and a past President of the International Association of Prosecutors.

Although major reforms to the appeal rights of accused persons were introduced in the early part of the 20th century in England and Australia, no equivalent appeal rights were introduced for the prose­cution. In 2008 the situation has substantially changed with the prose­cution now having a right to appeal against alleged lenient sentences in all jurisdictions in Australia. However, in New South Wales, recent legislative reforms have introduced even more radical and contro­versial appeal rights for the prosecution in the higher courts. These include a right to appeal interlocutory orders where the order substan­tially weakens the prosecution case, and a right to seek a retrial of a person who was acquitted. These reforms involve a reconcep­tualisation of the notion of a ‘miscarriage of justice’ and a redefining of the tradi­tional relationship between the accused, the prosecution, and the State. In the context of criminal appeals, the public interest, and the interests of crime victims, have been accorded greater weight.

(2008) 26 No 1 Law in Context 75

   
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