Continued …

… Conclusion to The Case for a National Criminal Cases Review Commission …

The fourth case was the well known case of Timothy Evans of 10 Rillington Place, which was not a referral from the CCRC.

There have been many other cases where people brought appeals long after their release from prison. Throughout the cases (UK and Australian) there are constant references to the need to maintain confidence in our criminal justice system and in our system of appeals.

On 16 September 2012 it was reported in Victoria that the case of John Bryan Kerr who had been convicted of murder in 1949 had been reopened after another person recently confessed to the crime: “Police expected to contact the Office of Public Prosecutions for the John Bryan Kerr conviction to be reviewed.”

The article also reported that: “In 2006 an appeal for mercy was made to Victoria’s Chief Justice in the case of Colin Ross, hanged over the notorious Gun Alley Murder in 1921. In May 2008, Mr Ross was pardoned by the Governor of Victoria.”

In December 2010 it was reported, “Fred McDermott, an itinerant shearer and alcoholic, was convicted in 1947 of the murder of Bill Lavers, an English-born shopkeeper and service station operator at Grenfell, in southern NSW.” It continued, “A hearing begins today in the Court of Criminal Appeal, against a murder conviction, in which the victim has been dead for 74 years — and the accused for 33.”

It is obviously invidious to make comparisons between cases of this type. Mr Szach’s case involved the assassination of a high-profile criminal lawyer in Adelaide. One would have thought that there would be a considerable public interest in ensuring that justice is done. If a person has been wrongfully convicted, they are entitled to a determination to that effect. The public would also need to know if the wrong person has been convicted, not only because it would enable public recognition of the wrong done to that person, but also because it would enable further inquiries to be made with a view to identifying the person responsible for this terrible crime.

Mr Stevenson, as a senior criminal lawyer in South Australia (and his family) would no doubt expect the legal system to which he had provided valuable service to show greater respect to his memory and service.

The LSC and the Ombudsman put forward the suggestion, by way of excusing their inaction, that it might be possible for the Court of Appeal to affirm the conviction, even if the pathology evidence was discredited. That is not correct. Nor is it an appropriate matter to take into consideration for a grant of legal aid.

Without the pathology evidence, there would be no evidence of time of death. At the trial, Mr Martin QC said, “… the objective and scientific evidence means that he was dead by 6.40, and the accused was there.”

In this respect the jury was misinformed. If they had known that the evidence as to the timing of death was unreliable and that the best that could be said was that the death perhaps occurred within a margin of time some 4 hours either way, then clearly they would have formed a different view of the case. However, the legal requirement is not to establish that the jury would have formed a different view of it – the mere possibility that they would have done so is sufficient.

It is to be noted that when Mr David QC conducted a review on behalf of the LSC in 1991 he noted then that there were concerns as to the pathologist’s opinion as to the time of death. He said that there might be some material forthcoming of a scientific nature which might show that the pathologist must be wrong and that it is impossible to estimate the time-of-death of a frozen body. However, he said that he had not at that time got such material and therefore could not form an opinion of it. He continued, “I have therefore given my opinion on the basis that the unchallenged evidence of Dr Manock stands.”

Mr David QC stated that if such evidence were to be forthcoming then it could well become significant. It has – and it is.

Conclusion

The new statutory right of appeal in South Australia was enacted specifically to ensure that people such as Mr Szach are provided with some means of access to the court to hear the claim that their conviction amounted to a serious miscarriage of justice.

The enactment was intended to bring about compliance with international human rights obligations.

The LSC (and the Ombudsman) has an obligation under the international human rights treaty and under domestic law to comply with those human rights obligations in the interpretation and implementation of the legislation.

The errors which occurred at the trial of Mr Szach are a classic case of compelling grounds upon which to have the conviction set aside a fortiori, it must pass the test of an arguable case to be heard by the Court of Appeal. The matter is clearly one for judicial determination and not one for administrative determination by the LSC or the Ombudsman.

It should be pointed out that Mr Bromley was also refused legal aid by the LSC. He is still in prison. He has been there for 30 years and is six years over his non-parole period. He has also been refused parole because he does not show contrition for his crime. He says he cannot show contrition for something he didn’t do. It could hardly be claimed he was not at risk of further imprisonment. Fortunately, the question as to whether he has a proper basis upon which to challenge his conviction will soon be determined by the Court of Appeal, following the federal grant of legal aid.

The Forthcoming Challenge

The cases of Henry Keogh and Derek Bromley will be heard by the appeal court early in 2014. Mr Keogh has obtained pro-bono support from a high profile and very experienced legal team. Mr Bromley (as an aboriginal person) has obtained legal funding from the Federal Attorney-General’s Dept.

It is anticipated that the issues which will be raised in the course of those appeals will attract significant national and international interest. More than ever before, it will become most apparent that the current arrangements for the review of such cases are woefully inadequate in all states and territories.

A statutory power to initiate a second or further appeal without any investigative or funding capacity is hardly better than a power vested in the Attorney-General to refer cases to the Court of Appeal which is never exercised.

We need to see some decisive steps by state and territory governments which make it clear that the “rule of law” is more than a slogan to make legal officials feel good. As we noted earlier, Mr Selway had said, “It is the duty of the Crown and of every branch of the Executive to abide by and obey the law.” Mr Hinton spoke of proper use of the “immense resources” of the state, and the need to have regard to the principles of a “fair trial” “unimpeded access to the courts” and “fair disclosure” by the state. On the basis of the cases which we have looked at, it is clear that the message is not getting through to the troops on the ground.

There has to be a practical commitment to dealing with miscarriage of justice cases properly. This may well involve a Royal Commission as has occurred in the UK and in this country in relation to issues of child sexual abuse. In the UK it was the IRA bombing cases which triggered major national interest and institutional reforms.

In Australia, it might well be the Keogh and Bromley cases which will trigger the interest and reforms which are necessary to get that process under way in Australia.

Dr Bob Moles is a joint author of Forensic Investigations and Miscarriages of Justice (Irwin Law, Toronto, 2010) which deals with miscarriages of justice in Australia, the UK and Canada. He has also published books on miscarriages of justice in South Australia. He previously taught in law schools at Adelaide University, the Australian National University and Queen’s University in Belfast. He has developed the Networked Knowledge website at http://netk.net.au

• By Dr Robert Moles, earlier: Australia Needs a National Response to Miscarriages of Justice

• Court of Criminal Appeals decision in Sue Neill-Fraser case, HERE

• If you wish to comment do so, HERE

• Evan Whitton: The investigative system is better in every respect