How do you solve a problem like Lawyer X?

How does the State of Victoria mange a review of 380-odd criminal convictions in the wake of revelations about Lawyer X? As the law stands, the answer is ‘with enormous practical difficulty and delay’. Legal academic Dr Bob Moles and Associate Professor Bibi Sangha suggest how a fairly simple change in the law (as enacted by both South Australia and Tasmania recently) can resolve the problem created by Lawyer X.

It has recently been revealed by the High Court that a former Victorian defence lawyer may also have been working as a police informant. It has been suggested that there may be at least 380 cases which will need to be reviewed. However, the procedure by which such cases can be reviewed by the courts is far from straightforward.

If we assume that those convicted of the most serious crimes will also have appealed their convictions, unsuccessfully, then the further procedure in light of the most recent revelations becomes quite interesting.

In Victoria, there is clear case-law which states that a convicted person is entitled to only one appeal. After an unsuccessful appeal, the Court of Criminal Appeal cannot re-open the previous appeal, nor can it allow for a further appeal. Even if there were some decision to appeal to the High Court, which in most cases would be either doubtful or out of time, the High Court would be unable to assist. The new information which has been released about the perfidy of the defence counsel / police informant would not be admissible before the High Court. It has long maintained the position that, for technical reasons, ‘fresh evidence’ is not to be admitted in appeals to the High Court.

The only remaining procedure requires the invocation of what is called the ‘petition procedure’. This can only be commenced by initiating a petition for ‘the exercise of Her Majesty’s mercy’ in relation to the conviction. Oddly enough, applicants in these cases will most certainly not be seeking the exercise of the ‘mercy power’. Mercy is used to relieve guilty people from further punishment where there are extenuating circumstances. A convicted person may be suffering from a terminal illness and would like to spend their last few days with their family.

However, in these cases, the appellants will almost certainly be claiming that they have been wrongly convicted, and in those circumstances, they will require the overturning of their conviction, not the exercise of ‘mercy’. However, because of the oddly worded provision, the applicants have to commence with a petition for mercy, and in the course of the petition have to make it clear that they instead require the Attorney-General to exercise a statutory referral power, which allows for the case to be sent to the Court of Criminal Appeal for an appeal.

This means that the application has to be sent to the Governor who receives applications for the exercise of the mercy power (which is not required). As the Governor must always act only upon the advice of Government ministers, the application, in any event, has to be forwarded from the Governor’s office to the Premier’s office.

Upon receipt of the application, the Premier is then required to forward the application to the relevant minister, which in the case of legal issues will be the Attorney-General. The Attorney-General, who is as much a political appointee as a holder of a legal office, will almost always seek advice from the legal advisor to the Attorney, who is the Solicitor- General.

Upon reading the application for mercy, the Solicitor-General will then appreciate that the document goes on to request the application of the statutory referral power by the Attorney- General to the appeal court. As the section says:

Where a person convicted on indictment .. petitions for the exercise of Her Majesty’s mercy in relation to the conviction …-the Attorney-General may refer the whole case to the Court of Appeal.
(Criminal Procedure Act 2009 s 327)

So, at this point the Governor and Premier drop out of the picture, and the Attorney-General is then required to exercise a statutory discretion, which amounts, in substance, to an application for leave to appeal. If granted, the appeal court is required to hear the appeal.

However, because of the confusion between the prerogative of mercy power and the exercise of the statutory referral power, the case-law on this has become a mess. There is legal authority which says that the applicant has no legal rights in respect of the application, it being assumed that the petition referral power is beyond the scope of legal rights.

That would be so if it was merely in respect of the mercy power, but not so in relation to the exercise of a statutory discretion. The same legal authority says that the exercise of the discretion by the Attorney-General is an ‘unfettered discretion’ and the application may be refused for any reason or for no reason at all. If the power involved was a prerogative power exercised on behalf of the sovereign (as for mercy), that position would be arguable, but as a power exercisable by a legal official (the Attorney-General) it would be contrary to the rule of law provisions. They state that all legal officials must act in accordance with relevant legal rules and there is no power given to any legal officials which can be ‘unfettered’.

One application in respect of a petition in South Australia, in relation to the case of Henry Keogh, took four years to be answered. We also found that answers to petitions often involve an outright rejection of the application without the provision of any formal or proper reasons for the decision. It is then said that the decision made under a petition is not appealable. We have argued that each of those circumstances are also contrary to basic rule of law provisions.

Indeed, we argued that the appeal provisions which until a few years ago were similar in all states and territories were contrary to Australia’s human rights obligations under the International Covenant on Civil and Political Rights in so far as they failed to protect the right to a fair trial and the right to an effective appeal.

The High Court has made it clear that the circumstances which have prevailed in the cases it referred to in Victoria were in breach of the fundamental provisions of criminal procedure – clearly not consistent with any notion of a fair trial. Because those defects were not revealed until after the convicted persons had had unsuccessful appeals, they were not able to exercise their right to an effective appeal. Under the appeal provisions which now apply in Victoria, those people have no further ‘legal right’ to have their cases reviewed by the courts. They can only have a review after the exercise of an unfettered discretion by the Attorney-General.

It is clear that the Victorian criminal appeal provisions are in breach of Australia’s international human rights obligations. The Australia Human Rights Commission stated as much in a report which it issued on this matter in 2011.

Apart from that shortcoming, we now face the prospect of some 380 cases being sent to the Governor, then to the Premier, then to the Attorney-General and the Solicitor-General and to be dealt with by procedures and rules which are clearly questionable if not downright unlawful. However, there is a remedy at hand.

In 2013 the South Australian parliament enacted a new statutory right of appeal. It said that where there was some fresh and compelling evidence that there had been a wrongful conviction, the person concerned could apply directly to the Supreme Court for leave to appeal. The matter could then be dealt with in accordance with the rules governing criminal appeals and decisions thought to be unsatisfactory can be subject to further appeals up to and including the High Court.

The South Australian Attorney-General informed the parliament that it was time that the process got away from the ‘mysterious’ and ‘behind closed doors’ process of the petition procedure and was dealt with in accordance with clear rules subject to the light of day in open court. A similar amendment was introduced in Tasmania soon after the South Australian innovation and the Tasmanian parliamentarians made it abundantly clear that they were happy to follow the example of South Australia.

The provisions were passed unanimously in both parliaments – without a single dissenting voice or vote. The feared avalanche of appeals from disgruntled criminals with too much time on their hands has not eventuated. There have been around six appeals in South Australia in five years, and three of them have been successful, one partially successful and one awaiting a further appeal to the High Court. One conviction (that of Henry Keogh) was overturned after he had served over twenty years.

The provision clearly works, has been of great value, and de-politicises the criminal appeal process. Given the nature of the cases involved in the Victorian debacle, it looks like the perfect solution, providing an efficient alternative to an otherwise catastrophic process in prospect. We suggest that the Victorian parliament would be well advised to implement the new statutory right of appeal based on the South Australia model without delay.


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