Another CCRC established … but still not in Australia

Andrew L. Urban.

A new, independent body that will have the power to send potential miscarriages of justice back to an appeal court is on track to begin receiving applications from July 1, 2020 – but not in Australia. It’s the New Zealand Criminal Cases Review Commission (NZCCRC), leaving Australia behind in dealing with miscarriages of justice, laments former High Court judge Michael Kirby AC CMG. 

The Hon Michael Kirby AC CMG

“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,” he complained via a Guest Editorial in Criminal Law Journal.

NZ Justice Minister Andrew Little

When NZ Justice Minister Andrew Little sought Cabinet’s approval in 2018 to establish the CCRC, reports newsroom.co.nz, his paper cited long-running concerns about the “independence, timeliness, quality and fairness of investigations into miscarriages of justice under the status quo”. He could have been speaking of Australia in similar terms. Many have, notably Michael Kirby, but others, too, including me and legal academic Dr Bob Moles of Flinders University, who provided constructive suggestions as to how such a body could easily be established in Australia’s legal system. (See below)

As in Britain, where a CCRC has been operating since 1997, the purpose of the NZCCRC is to enable anyone who believes they have suffered a miscarriage of justice to apply – no fees are payable, and they won’t necessarily need a lawyer.

In deciding whether to refer a conviction or sentence, the NZCCRC must have regard to whether the applicant has exercised their rights of appeal; the extent to which the application relates to new evidence or a question of law; and the prospects of the appeal succeeding.

It also has powers to initiate inquiries into matters that may be seen to be common features in cases involving a miscarriage of justice, and it can compel people to produce documents, be interviewed, or examined under oath.

These powers help drag the criminal justice system into the 21st century, and they are based on firm legal principles, enhanced by a robust objective to achieve justice.

Colin Carruthers QC

The NZCCRC will be based in Hamilton, a decision designed to underline its independence by distancing it from the main bureaucratic and judicial centres of Wellington and Auckland. Colin Carruthers QC will be its chief commissioner. He will head a board of commissioners, whose appointments will be considered by Cabinet this month. At least one member of the board must have knowledge or understanding of te ao Māori and tikanga Māori, at least one-third must be legally qualified, and at least two-thirds must have experience of having worked in the criminal justice system.

ADVICE TO THE AUSTRALIAN ATTORNEY GENERAL

I wrote to Attorney General Christian Porter in March 2019, citing advice prepared by Dr Moles, as follows:

Dr Bob Moles

A national CCRC can be established by setting up a single CCRC and then each state and territory can legislate to nominate that CCRC as the appropriate agency to review cases on its behalf and exercise powers given to the CCRC by that state to refer matters to the appeal court of that state. This would not involve any constitutional change of any sort. 

In essence, instead of duplicating the overheads of a CCRC eight times by having one in each state, we save resources by having a single body exercising the appropriate powers for each state and territory. 

I know that there are some who take the view that getting states to cooperate is a highly challenging and they may well be right on that, but I think it should nevertheless be a strategic goal, both from the point of view of economy, but also from the point of view of ensuring independence of the review process. 

Australia has a single unified legal jurisdiction which is why we have a common Supreme Court (the High Court). To have a single administrative body which can exercise powers on behalf of each state and territory, being cognisant of the minor variations in the law which may occur between them, would be administratively simple and have strategic and economic benefits. 

It should be noted of course that according to the AHRC, the criminal appeal system in all states and territories failed to comply with international human rights obligations. It failed to respect the right to a fair trial and to ensure an effective appeal. South Australia and Tasmania have legislated to remedy that defect. The remaining states and territories have not done so. It is of course the responsibility of the Federal Attorney-General to ensure compliance with International Treaties.

Australian AG Christian Porter

AG Porter has so far declined to consider the establishment of a CCRC in Australia. He has not given a reason for his decision.

 FOOTNOTE:

The CCRC in the UK started work in April 1997. Between then and the end of March 2020 it has:

  • Referred 692 cases to appeal courts
  • Of the 670 cases where appeals have been heard by the courts, 450 appeals have been allowed and 207 dismissed
  • 519 cases are currently under review at the Commission and 170 are awaiting consideration.

Since starting work in 1997, the CCRC has so far received 26,221 applications (including all ineligible cases) and completed 25,531 cases.

 

This entry was posted in General articles. Bookmark the permalink.

15 Responses to Another CCRC established … but still not in Australia

  1. Tony Brownlee says:

    Juries must go! Time and time again we see clear evidence of their failures to understand and rule on evidence as against their belief Above al else that they have an obligation to convict! Clearly voters will never uphold a change to section 80 or state law doing away with jury trials and in some cases Judges or Justices are more biased than juries. Never the less a parliamentary way of establishing judge alone trials in state and commonwealth criminal matters must be found!

  2. John S says:

    Andrew and other contributors, how about this proposal: I will draft something to be presented to, say, the Shadow Federal A-G (Mark Dreyfus) to see where Labor stands on this. Sadly, Kelvin Thompson never got to be the A-G back in ’07 because of the Mockbel mistake and he had to step down just before that election. Kelvin left politics (& the ALP) a few years ago. I knew him and know that he was a down to earth sort willing to strive for justice and doing the right thing by the average voter (perhaps not like some).

    So we’ll have to hope that spirit of doing the right thing still exists. We need allies from anywhere.

    Where do the Victorian Bar Association and the Law Institute of Australia stand on this? Could they be counted upon to support this initiative?

    Ideas from anyone?

  3. John S says:

    I wonder what country I’m living in these days, an emerging third world country?

    I used to wonder why we needed a Human Rights Commission, now I know we do and we need a Human Rights Charter as well (we don’t yet have one). We’re becoming the mini US these days in terms of rights’ abuses.

    So as well as a CCRC, the whole justice system needs a great leap forward from the days of Knights sitting around a round table (Magna Carta days). It’s clear that people lie under oath, often, and can’t be relied upon to give straight truth. So we must avoid having simple testimony being used in evidence if it can be made up & can’t be verified with real facts.

    Juries were introduced to make judgments more ‘honest’, but it’s clear that juries can get it very wrong.

    Courts must no longer be operating in secret either, where’s the scrutiny and good governance if we can’t know what they’re doing?

    Andrew, do you wonder which country you’re in, given you left Hungary when it was under pro soviet govt? Looks like we’re becoming a police state here these days.

    Perhaps NZ isn’t so bad after all, might look in to moving there.

  4. Dr. Jim Saleam says:

    The need for a Criminal Cases Review Commission is obvious to me.

    Having been through a trial, an appeal, an application to the Governor and an application to the NSW Supreme Court for an inquiry – and being ‘defeated – there has to be a reasonable end for a case that depends upon the word of a single person. I may just be lucky now. Recently revealed security telephone intercepts demonstrate much central perjury from the witness – and the motive to ‘frame’. Yet, had a CCRC been in existence twenty years ago, this case that began in 1984 might long ago have been ‘solved’. Your efforts are important.

  5. owen allen says:

    (edited)

    Something is very wrong in Tasmania, the southern most island state of Australia.
    The Chief Justice strolled into court one day announcing he did not feel lenient today.

    I never knew Justice was how a Judge felt on any particular day.
    The Chief Justice of Tasmania sentenced a university student to prison.
    The student, a female, from Singapore was sentenced to 3 months prison for stealing library books.
    Yes, library books, and the Tasmanian Chief Justice, and other Tasmanian Judges let drug dealers walk.

    I was very upset by this injustice and I still am. And the Tasmanian Chief Justice convicted and sentenced Sue Neill-Fraser to prison for murder for 23 years.
    And there was no body found and he gave Sue a severe sentence because she did not reveal what she did to the body, and she showed no remorse. Yet there was dna at the scene which did not correspond with Sue at all.
    And a woman, who was a child at the time, has confessed of being at the scene of the crime when it took place, her dna was her vomit, and Sue Neill-Fraser is still in prison.
    Has not even been released on bail or home detention.
    WHAT IS GOING ON IN TASMANIA?

  6. owen allen says:

    The most I have had to carry is an admission by a very senior politician who told me, Tasmania Police were too corrupt to do anything about.
    That man is in a very senior position now in Tasmania.
    I hope he comes over. We know one man on his own cannot halt a regime.
    But we now have many, we are not alone; we have protection.

    Coooeee, remember why you are here now.

  7. owen allen says:

    In Tasmania at a while there, I was expecting and not fearing somebody to walk into my office and shoot me in the forehead.
    I got guff on Tasmania.

  8. owen allen says:

    Bring pressure to Tasmania to co-operate with a Royal Commission, and Australia conform with worlds best practise with wrongful convictions.
    We are at as a society the balance or razors edge of losing every freedom.
    I know you are aware. I am so grateful personally many people have recently spoken out. I have done nearly all I can do democratically.
    I have made notice to as many as I can and if we are not united we are doomed.
    I am concerned about my mental health. I have lived in stress anxiety and depression for thirty years. There is no stopping.
    FREE SUE NEILL-FRASER. IMMEDIATELY

  9. owen allen says:

    Thank you Andrew for publishing my stuff.
    I reread what I send and am I suicidal?
    I can not handle fighting alone anymore. 30 years since I threw in the spear.
    I have more confidence now more people are coming out.
    This requires a national effort of organisation.
    Bring pressure to Tasmania to co-operate, and Australia conform with worlds best practise with wrongful convictions.

    We are at as a society the balance or razors edge of losing every freedom.
    I know you are aware. I am so grateful personally many people have recently spoken out. I have done nearly all I can do democratically.
    I have made notice to as many as I can and if we are not united we are doomed.
    I am concerned about my mental health. I have lived in stress anxiety and depression for thirty years. There is no stopping.

  10. Brian Johnston says:

    The problem with the CCRC is that you have to be incorrectly gaoled to receive help.
    What we have to do is prevent the innocent from going to gaol.
    There are a number of cases in NZ which should be placed before the CCRC.
    It will be interesting to see what pans out.

    • andrew says:

      It’s not the problem with the CCRC – it’s the whole point of the CCRC, to help correct miscarriages of justice. But I do take your point: prevention is better than cure.

  11. Tony Brownlee says:

    The Former Justice Michael Kirby is one of the most honourable, decent men one could ever encounter. he should not though be lamenting the lack of a Criminal Cases Review Committee in Australia given he was a member of the HC of A Bench when on many occasions it failed to take the case opportunity and rule in favour of truth, as against that dictated by law and procedure.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.