At the International Justice Conference in Perth, in March 2012, which I was fortunate to attend, delegates heard from the Hon. Ann Bressington MLC from South Australia about a proposal to establish a Criminal Cases Review Commission (CCRC) along the lines of the one established in the UK in the late 1990’s. She advised that her private member’s Bill, which was introduced to the SA Parliament on 10 November 2010, had been referred to the Legislative Review Committee. She encouraged those at the conference to consider making a submission to the Committee.
Having researched the issue upon my return to Hobart, I was very interested to see that the SA Committee had been asked to look at the possibility of a national CCRC. It was also proposed that any model be referred to the Standing Committee of Attorneys-General (SCAG) for consideration as a national model. The Terms of Reference for the “Inquiry into Criminal Cases Review Commission Bill” were:
“1. That the Criminal Case Review Commission Bill 2010 be withdrawn and referred to the Legislative Review Committee for inquiry and report.
2. Requests the Legislative Review Committee, in its inquiry on the Criminal Cases Review Commission Bill 2010 to also consider and report on:
a) alternative approaches to rectifying any identified issues with the reprieve offered by section 369 of the Criminal Law Consolidation Act 1935 and the prerogative of mercy;
b) the possibility of the establishment of a national Criminal Cases Review Commission as an alternative to a state based Criminal Cases Review Commission; and (emphasis added)
c) any other related matter.”
I subsequently made two separate submissions to the Legislative Review Committee (one on general issues and the other relating to the Sue Neill-Fraser case). The Committee reported its findings in July 2012 - See http://netk.net.au/CCRC/CCRCReport.pdf. The report made seven recommendations. The Committee recommended that the relevant Act be amended to provide that a person be allowed at any time to appeal against a conviction for serious offences if the court was satisfied that 1. the conviction was tainted; or 2. where there is fresh and compelling evidence in relation to the offence which may cast reasonable doubt on the guilt of the convicted person. The way in which the various recommendations were eventually dealt with can be found at http://netk.net.au/Parliament/LC16.asp. The Bill did not make specific reference to a “tainted” conviction as in practice it was thought that this situation would be shown up through “fresh” and “compelling” evidence. It was somewhat disappointing that the Legislative Review Committee did not endorse the concept of a Criminal Cases Review Commission or something similar.
The new SA Statute Amendment (Appeals) Act 2013 provides for new procedures for renewed defence appeals against conviction in the event that “fresh” and “compelling” evidence comes to light after the usual right of appeal has been exhausted. An applicant must satisfy a court that the evidence is both “fresh” and “compelling”. The new procedure will also be retrospective in operation and will pick up several of the high profile, and sometimes controversial, cases in South Australia that have been hard fought over many years. Many people do not appreciate the restricted nature of appeals nor the fact that the High Court of Australia is unable to receive new or fresh evidence. In addition, a Court of Appeal cannot re-open an appeal or hear a second appeal no matter how compelling new evidence may be. There are some serious limitations, in my view, in the current appeals and review system. In fact, the Australian Human Rights Commission stated in its submission to the SA review that the system of criminal appeals throughout Australia, not just in SA, failed to comply with international human rights obligations in that:
• it failed to protect the right to a fair trial; and
• it failed to respect the right to an appeal where persons had been wrongly convicted, and the error was not revealed until after an unsuccessful appeal.
The SA Attorney-General referred to the “fresh” and “compelling” requirements in the new legislation as a “robust” threshold that was necessary to deter or deny untenable applications. He acknowledged the strong public interest in finality in criminal litigation.
It is useful to examine the definitions of “fresh” and “compelling”, as they are critical to the new regime.
“Fresh” evidence is defined as:
(i) it was not adduced at the trial of the offence; and
(ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial.
“Compelling” evidence is defined as:
(i) it is reliable; and
(ii) it is substantial; and
(iii) it is highly probative in the context of the issues in dispute at the trial of the offence.
The SA Attorney-General in introducing the above Bill in November 2012 commented that the petition for mercy process appeared to work effectively but was open to criticism as lacking “transparency, accountability and independence”. Others have commented that the petition for mercy is subject to an “unfettered discretion” and a refusal to refer the matter back to the court is not judicially reviewable. Experience has shown too that there can be inordinate delays in the petition for mercy process.
The SA Attorney-General also commented:
South Australia is not Texas. This State is not awash with wrongful convictions and the falsely imprisoned. Equally no system of criminal justice is infallible and there needs to be some means for convicted defendants to bring fresh and compelling evidence that questions the safety of their original conviction before a court.
Section 353A of the Act, which deals with second or subsequent appeals, states:
(1) The Full Court may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
(2) A convicted person may only appeal under this section with the permission of the Full Court.
(3) The Full Court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.
(4) If an appeal against conviction is allowed under this section, the Court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
It is interesting to note that a “substantial” miscarriage of justice is required. It is hoped that this will not prevent the legislation from dealing appropriately with relevant matters. It is noted that the SA Law Society expressed concerns in this regard.
The amendments in SA are sorely needed in Australia. Justice Michael Kirby has come out strongly in favour of the SA reform, as have a number of other high profile individuals and organisations, including the SA Law Society, the Law Council of Australia, Civil Liberties Australia and the Australian Lawyers Alliance. The Hon. A. Bressington stated the following in the third reading of the Bill and quoted Justice Michael Kirby:
I do not think that there is anything worse than being falsely accused of murdering a person or a loved one, a member of your family or someone that you had a relationship with and then spending all of that time in prison knowing that you are innocent and with no way of your evidence being heard if fresh and compelling evidence comes to the fore. Justice Kirby asked me to read out, on his behalf, the following statement:
I welcome the provisions of the Statutes Amendment (Appeals) Bill 2012 (SA) to address cases of possible miscarriage of justice in a more effective way.
This is innovative legislation. I congratulate the South Australian Parliament on returning to this tradition of innovation and leadership in legal reform. I hope that the measure adopted in South Australia will be quickly considered in other Australian jurisdictions because the risks of miscarriage of justice arise everywhere and they need more effective remedies than the law of Australia presently provides.
The desire of human minds for neatness and finality is only sometimes eclipsed by the desire of human minds for truth and justice. There will always be a disinclination to reopen a conviction, particularly where it has been reached after a lengthy criminal trial and a verdict of guilty from a jury of citizens. Sometimes, however, that disinclination must be confronted and overcome with the help of better institutions and procedures than we have so far developed in Australia.
Fortunately, the Parliament of South Australia is now enacting sensible legislation that responds to the problem of miscarriages of justice. It is the first step for Australia. Judges, lawyers and administrators throughout Australia will be studying the operation of the South Australian law with vigilance. Any law that helps society to avoid serious miscarriages of justice is to be welcomed. The new South Australian law is such a measure. I welcome it and praise the Parliament of South Australia. I also praise Ms Bressington for her initiative and the lawyers and the civil society organisations who have been urging the adoption of such a law for so long. Their success is an instance of democracy in action and of principle triumphing over complacency and mere pragmatism. I hope that other jurisdictions in Australia will take steps to enact legislation for the same purpose.
I agree with Justice Kirby that this is indeed a proud time for the Parliament of South Australia. I truly look forward to people who have been wrongly convicted in this state and who have served many, many years—sometimes decades—in prison for crimes they have not committed to be able to access this process post haste and to get the justice they are entitled to. (emphasis added)
The SA amendment is said to be the first time in 100 years that the criminal appeal rights in Australia have been changed. It is hoped that other States, including Tasmania, will quickly follow suit and introduce this important safeguard into our criminal justice system. The amendments in SA are to be proclaimed on Monday 6 May 2013.
The Act, parliamentary statements, submissions and media comment are available at Bob Moles’ Networked Knowledge website at http://netk.net.au/AppealsHome.asp.