Australia “limping behind UK, NZ, Canada” in appeal laws – Kirby

“In Australia, two of the states and both mainland territories have not yet even decided to permit a second criminal appeal by leave on compelling evidence. And no jurisdiction has yet resolved to establish a Review Commission. What is it about our country that always sees us limping behind [UK, NZ and Canada] where justice is at stake, whereas we can move with astonishing speed to diminish civil liberties, increase official powers and raise levels of incarceration, with no parliamentarian raising a murmur,” writes The Hon Michael Kirby AC CMG* in Criminal Law Journal, discussing right of appeal provisions. 

In his guest editorial (read it in full here), former High Court Justice Kirby asks if the new right of appeal as a response to wrongful convictions is enough. Clearly, he does not think so. Here are a few extracts from his editorial (emphasis where it occurs added):

The Hon Michael Kirby AC CMG

“The point with which this editorial is concerned is not the grounds of appeal but the right to appeal itself. In the United Kingdom, as in Australia, the prevailing view was that the common form legislation afforded a convicted prisoner a right to only one appeal. In a number of cases judges held that, appeal being a creature of statute, there were no rights of appeal beyond those expressly granted by the statute.

Moreover, they held that a proper examination of the common form statutory provision resulted in a conclusion that it gave rise to one right only to make an appeal. Once that privilege was exercised, the power and jurisdiction of the court were exhausted. Occasionally, judges, including myself, expressed doubt that this was a correct construction of the statute.

The usual reason given for favouring a limitation to one appeal, which is not expressly spelt out in the statute, was that an appellate court “should not attempt to enlarge its jurisdiction beyond what Parliament has chosen to give”.

The problem with this interpretation of the legislation was that it was not essential to the language used by Parliament. This was facilitative and beneficial not restrictive. The Act simply stated that a person “may appeal”. It then specified the grounds upon which such an appeal might be brought. The restriction on the number of appeals that might be initiated appeared to have had its origin in the judicial distaste for the expansion of the appellate rights for convicted prisoners. So much had been evident from the start, before and after the enactment of the Criminal Appeal Act 1907 (GB). This judicial hostility continued despite the increasing evidence of the utility of the appeal right both in the United Kingdom and in its colonies.

Upon the basis of this restrictive interpretation of the availability of the right of appeal, the High Court of Australia held that it was unable to entertain a second application by a person claiming to have been wrongly convicted. In this respect, the High Court affirmed the approach adopted by intermediate courts to the effect that they did not enjoy a right to re-open an appeal or to hear a further appeal or application for that purpose.

clearly unsatisfactory

Additionally, for constitutional reasons the High Court took the view that it could not admit fresh evidence in an “appeal”, even though such evidence might tend to demonstrate that the applicant had been wrongly convicted. This was an additional narrow view about the facility for re-opening criminal appeals with which I disagreed. I pointed out that, as a consequence, “Justice in such cases is truly blind. The only relief available was therefore from the Executive Government or the media – not from the Australian judiciary”. Such a position was clearly unsatisfactory. The High Court of Australia does enjoy a statutory power to remit a matter before it to another court to consider admitting fresh evidence and then to refer the matter back to the High Court for final determination. That power still exists. However, it has seldom been exercised. It gives rise to its own complications.

The result of the foregoing is that the courts in Australia have taken the view that, if there is an exceptional case where a possible wrongful conviction may require the intervention of the courts, that possibility can be initiated only by the procedure of a petition to the Government. This was a further initiative adopted in the Criminal Appeal Act 1907 (GB) for England and Wales. It allowed an applicant to apply to the Attorney-General for the reference of the question of a possible miscarriage to the appeal court, to be heard as an appeal. However, this exceptional procedure depended upon the affirmative action of the relevant Executive Government. Given that a manifestation of that government was usually the agency responsible for prosecuting, incarcerating and resisting the complaints of the accused, the defects of this procedure were clear, including to the prisoner.

Defects of the Petition procedure
The result of the foregoing is that the courts in Australia have taken the view that, if there is an exceptional case where a possible wrongful conviction may require the intervention of the courts, that possibility can be initiated only by the procedure of a petition to the Government. This was a further initiative adopted in the Criminal Appeal Act 1907 (GB) for England and Wales. It allowed an applicant to apply to the Attorney-General for the reference of the question of a possible miscarriage to the appeal court, to be heard as an appeal. However, this exceptional procedure depended upon the affirmative action of the relevant Executive Government.

One such defect was the possible existence of a conflict of interest and duty and the common professional hostility to the complaints of the prisoner.

In Von Einem v Griffin, the South Australian Full Court stated that the power of statutory referral following a petition provided “no legal rights” to the applicant. It also stated that the Attorney-General had a “complete discretion” in the matter. In fact, it emphasised that the power did not have to be exercised at all. It held that the decision process of the Attorney-General was not subject to judicial review. Some of these dicta were written before recent authority clarified the ambit of judicial review in such matters. The notion that an official, exercising powers derived under legislation enjoys an unfettered, subjective discretion may be inconsistent with the requirements of the rule of law, which Dixon J described in Australian Communist Party v Commonwealth as a basic principle of Australian constitutionalism. However, the net effect of the foregoing decisions has been that a person, claiming to be wrongly convicted, may end up in a blind alley. The prisoner is obliged to seek redress from the Attorney-General. Yet this may be the very office-holder who has ultimate responsibility for the agencies (such as forensic sciences, police, prosecutions and the courts) that the prisoner alleges to have been wanting if a miscarriage of justice is to be found and corrected.”

Andrew L. Urban comments:
The case of Henry Keogh is one that illustrates the ‘blind alley’ to which Kirby refers, having applied five times for a petition, all without success. We reported on a more recent case. A man, without a single other legal blemish, convicted of historical sexual abuse of a little girl in his family, 22 years before, believes he could prove his conviction is wrongful if the NSW Attorney General advised the Governor to act on his petition and referred his case for a judicial review – as it was recently done for Kathleen Folbigg, convicted of murdering her children. But he has been refused and given no reason.

Kirby argues strongly for the establishment of a Criminal Cases Review Commission:

“The experience of [the CCRC] has more than justified its establishment. It resulted in the setting aside of large numbers of convictions in serious criminal cases. Now, in New Zealand, the British experience has resulted in the decision to establish a similar commission in that country.

The provision of redress is urgent

Considering these moves, it is clear that, at the least, there is an urgent need for the enactment of a facility of a second or further appeal in those States and Territories of Australia that have not so far taken this step. This would be the minimum reform to bring Australia’s response to miscarriages of justice into line with its obligations under international human rights law binding on it.

To do nothing and to persist with the flawed facility of seeking Executive consideration of a complaint behind closed doors constitutes a breach of Australia’s obligations under the ICCPR. Ironically, the creation of a national or multi-jurisdictional CCRC could be a more cost-effective response than the continued investment in royal commissions and special inquiries that have marked the Australian scene so frequently in recent years.

Doing nothing to improve our institutional arrangements is a stain on Australia’s reputation as a country of equal justice. It is a blight that is too often demonstrated by fresh evidence and argument. It is an intolerable burden on thoughtful judges, prosecutors and other lawyers who regard participation in a demonstrable miscarriage of justice as a nightmare. The provision of redress is urgent.”

Associate Professor Bibi Sangha and Dr Robert Moles of Flinders University

* Kirby “acknowledges with appreciation the suggestions of Associate Professor Bibi Sangha and Dr Robert Moles of Flinders University of South Australia. He thanks them for their contributions to reform.”

 

 

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5 Responses to Australia “limping behind UK, NZ, Canada” in appeal laws – Kirby

  1. Fiona says:

    “What is it about our country that always sees us limping behind [UK, NZ and Canada] where justice is at stake?”

    A great question from a great man. I would add USA to the other countries.

    Why are we such a backwater for restoration of justice? Why is Australia different? It’s not just Tasmania – Bob Moles has shown that.

    USA has had 367 DNA exonerations so far – ref
    https://www.innocenceproject.org/dna-exonerations-in-the-united-states/.
    The population of USA is about 330 million (approximately, with illegal immigrants being hard to count). The population of Australia is about 24 million, so we should have proportionally about 27 DNA exonerations so far. Our actual figure is closer to 3. Farah Jama does not count in these figures – his was a successful appeal – the exonerations are after the trial and appeal have lost. Why our figure is so low? I can give my opinion later why that is the case, if anyone wants.

    I think there are many reasons. I will mention two of these factors in this post.

    (1) Complacency of our legal system

    Let’s give one example. I could give more similar examples if you want.

    In NSW, people right now are going to jail after 11-1 jury decisions. The actual law seems to be: http://classic.austlii.edu.au/au/legis/nsw/consol_act/ja197791/s80.html.

    There was meant to be a review of the 5 year trial period of 11-1 jury decisions in about 2012 ( calculated as – 2006 plus a year to act plus the five year trial period from 2007). Eight years later, the Law in NSW still seems to be out of date. It seems that nobody has bothered to check if the legally required review ever took place. Its hard to to say if people in NSW are illegally going to jail due to this apparent failure to update the Law.

    (2) A second reason is the nature of police forces in various Aussie states. Two weeks ago, the head of the NSW Police Force suggested that we the public should have a little bit of fear of the police. Ref https://www.themonthly.com.au/issue/2020/january/1578531394/kate-wild/prevention-state-part-four.
    I could have chosen many other links instead of that one. I don’t think the police in U.K., NZ and Canada think we should fear them. Maybe in USA, I admit. My theme is that policing in Australia has been and remains different from other countries. UK policemen such as Robin Napper and Peter Ryan seemed to find the police culture here different from the police culture in U.K.

    Those two factors could be major contributors to the different attitude to restoration of justice in Australia. There are other factors too.

  2. Jerry Fitzsimmons says:

    Andrew, another great article, thank you.
    Thought provoking in many ways eg the “Editorial” link from guest writer: The Hon Michael Kirby AC CMG.
    After reading this document it appears inevitable that the “system” is undergoing enormous pressure to maintain the ‘status quo’.
    I ask myself, why continue down this road of ‘Royal Commissions’?
    We all know what that costs.
    Why continue down the road of filling to the seams and building more prisons?
    We all know what that costs.
    Why continue to legislate for one person’s ‘discretion’ eg Attorney General, to decide against new evidence to appeal an injustice?
    We all know the consequences eg Henry Keogh and we are also aware of the costs, both financially and immeasurably, the human costs of this wrongful conviction.
    How much more needs to be brought to light before it is realised that this part of the “Commonwealth” also has a duty to it’s citizens to establish a Criminal Cases Review Commission. (It appears to be working elsewhere)
    Andrew, may your ongoing revelations of our inept citizenship protections continue to keep us all informed, particularly in the current ‘discretionary decisions’ that still prevail.

  3. Tom Cairns says:

    An enlightening report laying out the intricacies of the appeal system. And what a bucket of worms it is, or bale of red tape, if you prefer. It seems that the US has moved well ahead of us resulting in verdicts being overturned decades after someone has been in prison and all due to DNA technology’s ongoing development.
    The Law, or as I prefer, The System, continues to baffle and bewilder the general public by releasing felons who have committed serious and ugly crimes well before their time, often to re-offend. That is the antonym to Sue Neill-Fraser’s treatment at the hands of The System, God help us!

  4. Williambtm says:

    The law of legal privilege should not obstruct nor override any doubt that had been expressed during the trial process of a person charged with committing a criminal act.
    The evidence presented must not exclude exculpatory evidence as had occurred during the trial of Sue Neill-Fraser.
    It is my belief that the State’s DPP had overridden his power of discretion. Hypothetical examples or imagined scenarios should not be admitted as inculpatory evidence.
    I have also examined the presence of both imprudent and spoliation evidence, each having been admitted during the trial of the above-named. I have found this form of evidence to be a decidedly biased and divergent means of securing a court conviction.

  5. Robin Bowles says:

    There are some good people left in the legal system. Kirby is a giant amongst them. And Bob Moles a close second!

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