The Honourable List – in Australia

Previously, we held up as examples some prosecutors and judges who had Honourably taken responsibility and apologised for mistakes and malpractice causing some innocents to suffer wrongful convictions. They were (almost) all in America; we couldn’t find any examples in Australia. But now we have – and one of them of no less stature than revered former High Court judge, The Honourable Michael Kirby AC CMG.

“Dante Alighieri, writing of Paradiso, almost certainly imagined a special place in Heaven for those who remedy wrongful punishment of the innocent. If that place exists, the authors of this book have certainly earned a right, in due course, to have the keys.” So begins the Foreword to Bibi Sangha and Bob Moles’ book, Miscarriages of Justice: Criminal Appeals and the Rule of Law (Lexis Nexis, Butterworths) by former High Court judge Michael Kirby AC CMG – who can rightly be called Honourable in our special sense.

The Foreword continues (reproduced with permission):
For years, they have been expressing their concerns about the apparent injustices of particular criminal convictions in their home state of South Australia. They have made representations about the needs for investigations, enquiry and law reform. They have lobbied politicians; confronted inertia; and eventually secured action by the State Parliament. They have contributed to, and recorded, the operation of the enacted law. They have extended their advocacy to attempts to have the reform copied in other Australian states. Already, they have achieved a measure of success in Tasmania. More seems inevitable.

They have acted upon the special obligation that rests on those who enjoy academic freedom to research, understand and advocate for remedies for injustice – individual and social. Not content with the reform that has been achieved, and the study of what is happening in other countries, the authors continue to advocate a more effective response. Now they have written this book to describe and explain the intellectual journey they have taken. It is a book of high principle.

But it is also a practical book for legal practitioners: to guide them through the old and the new law on criminal appeals. Theirs is the kind of well-targeted passion that motivated William Wilberforce to found the Anti-Slavery Society and Caroline Chisholm to campaign for the protection of women immigrants to Australia. Practical individuals with conscience can sometimes help change the world. Occasionally, they are lawyers.

Sitting in their lonely cells, the victims of apparent miscarriages of the criminal justice system witness the power of the law over their freedom. When they protest their innocence, they are reliant on the operation of a complex system of law and justice that provides checks at many levels against the nightmare of serious errors and wrongs. Yet, human justice is always prone to error and mistaken outcomes.

The lawyer assigned to the case may have been incompetent, inexperienced, or overworked. The trial judge may have made mistakes that misled the jury but which the appeal judges were willing to excuse as harmless or immaterial. The appeal bench may have been so overwhelmed with cases that the judges did not have the time to notice a basic flaw in the evidence. (emphasis added)

These facts may have made the judges over-dependent on lawyers who themselves lacked the time or imagination to consider the enormous detail about which the prisoner was endlessly protesting. The prisoner might have suffered from a mental illness, despair or emotional exhaustion. If he or she failed in the first level appeal, legal aid might have refused funding for counsel in the High Court of Australia: rendering the prosecution of a hearing for an application for special leave difficult or impossible.

In the High Court, the discovery of compelling fresh evidence may have been excluded from tender, supposedly for constitutional reasons. Bereft of even a qualified right of appeal to the Judicial Branch, the prisoner might then have been entirely dependent on the mercy of the Executive Branch, with its uncertain remedies and unknowable procedures.

For a prisoner, convicted after a trial complying with all the outward forms of criminal process, still to protest innocence despite all these hurdles might say something about the untrustworthiness of convicted criminals. Or it might say something about the unquenchable sense of injustice that occasionally keeps the flame of hope and determination alive. It is to differentiate between untrustworthiness and aggrieved innocence that a just system of criminal process will provide effective remedies and relief.

This book describes the growing realisation of the failings of the system of criminal appeals instituted in England in 1907 and thereafter exported in common form to its colonies. The authors set out to test the century old system of criminal appeals by reference to basic principles governing law and justice expounded by Sir Neil MacCormick, a leading writer on the theory of legal process. As well, the book invokes the recent development of universal human rights. Australia has subscribed to the International Covenant on Civil and Political Rights and to the First Optional Protocol that affords those affected by a breach of the Covenant, the opportunity to communicate their complaint to the United Nations Human Rights Committee in Geneva.

By reference to these two modern sources of principle and reasoning, the authors identify what they see as the fundamental defects in the institutional means that have been provided in Australia for a hundred years to guard against the risks of criminal convictions of the innocent and other grave miscarriages of justice. By reference to a litany of deeply troubling cases, the authors explain the urgent need for fresh law reform. They examine which that reform might take.

In my career in legal practice; institutional law reform; and judicial service, I have attempted, where I could, to uphold safeguards against wrongful convictions of the innocent and other miscarriages of justice. In many cases, as a judge, where I felt the law afforded me a choice, I favoured the exercise of that choice so as to diminish the intolerable risk that an innocent person might be punished in consequence of my judicial orders. I did so, for example, in interpreting provisions for reopening a suspect conviction; elaborating the power under the Constitution or State legislation to allow fresh grounds of appeal to be decided; or a second application to be made; or by favouring the reopening of perfected court orders.

But in one case, I was brought face to face with the conclusion that my judicial order had resulted in an innocent person suffering a substantial miscarriage of justice and serving 12 years imprisonment because I had failed to perceive a fatal flaw in the prosecution case. (emphasis added)

The decision in question involved Andrew Mallard, a prisoner in Western Australia. At a trial in 1995, a jury found him guilty of murder. He was convicted and sentenced to life imprisonment. His appeal was unsuccessful. Special leave to appeal to the High Court of Australia was refused in 1997. I participated in that refusal.

In 2002, Mr Mallard petitioned for mercy. He claimed that he was innocent. Fortunately, the State Attorney-General referred his petition to the Court of Criminal Appeal of Western Australia. However, that court unanimously dismissed his petition. He then sought special leave, once again, to appeal to the High Court. He complained that the Court of Criminal Appeal had failed to consider the whole of his case. Having been rostered for Mr Mallard’s appeal, upon reading the file and submissions, some elements appeared familiar.

fastidious analysis of the evidence

A check disclosed that I had participated in the earlier refusal of special leave. Scrutiny of the transcript of that application disclosed that it had been substantially addressed to a complaint concerning failure to admit into evidence a polygraph test suggesting Mr Mallard’s innocence. A refusal to reopen that question would not have been unusual because of the resistance to such tests in Australian criminal procedure.

However, in the fresh application for special leave, the case was propounded by new and highly talented pro bono counsel (Mr M.J. McCusker QC and Mr J.J. Edelman). They took a completely different course.

By fastidious analysis of the evidence produced at the trial they demonstrated convincingly that the prisoner could not have been at the murder scene at the time of the homicide consistently with other objective evidence of timing and sightings of him in Perth that day. Mr Mallard was a person suffering from mental disabilities.

In addition to the basic flaw affecting the alleged proof of his guilt, there were many instances of non-disclosure or suppression of material evidence in the hands of the police, available to the prosecution. This demonstrated convincingly the injustice of his trial. By the end of the appeal hearing, it was clear that, not only had Mr Mallard not received a fair trial. He was also, almost certainly, actually innocent.

Andrew Mallard’s conviction was quashed. A subsequent judicial inquiry cleared him of involvement in the murder. The evidence implicated another prisoner who had not previously been regarded as a suspect. Mr Mallard was awarded $3.25 million in damages for his wrongful conviction and punishment. However, no sum of money could wipe away the suffering inflicted on him, his family and the community. Or the failure of the criminal justice system in his case.

institutional weakness

A recent analysis of many similar cases in Australia and overseas, offered by his counsel, now the Honourable Malcolm McCusker AC, CVO, QC, demonstrates convincingly that the Mallard case was far from a one off instance. When even conscientious judges, provided with inadequate support by advocates and working under pressure with inadequate time for self-initiated speculation, fail to perceive crucial flaws, it is clear that there is an institutional weakness that needs to be addressed. It is to that weakness, and the repairs essential to cure it, that the authors of this book have directed their energies.

The institutional solutions for the defects appearing in the century-old criminal appeal template emerged initially in the United Kingdom. They followed the investigation of a substantial number of convictions (many involving persons convicted as Irish terrorists). The investigation resulted in the establishment of a Criminal Cases Review Commission.

After that Commission was established in the United Kingdom, the number of quashed convictions rose from four or five a year to between 20 and 30. Approximately 96% of all applications to the Commission were investigated; but rejected. However, of the 4% referred by the Commission to the Court of Appeal, approximately 70% have succeeded in having the convictions quashed.

So far, no such commission has been created in Australia, although in 2011, the Attorney-General for Western Australia was reported as favouring such a body. Meantime, in South Australia, an additional right of appeal, permitting a second or subsequent appeal where there was ‘fresh and compelling’ evidence, was adopted by amendment of the Criminal Law Consolidation Act 1935 (SA).

This effectively transfers the filter mechanism from the Executive Government to the Judicial Branch. With the pressures already existing on the judges of the highest court in a State of Australia, one can see immediately the potential for the new remedial scheme to run into the problems that already existed in the old system. However, the objective of the South Australian Government was to replace the petition to the Executive Government (with its lack of transparency) by a process initiated for the prisoner before the independent Judicial Branch of Government.

Far from proving to be a toothless tiger, the utility of the new provision in South Australia has already been demonstrated by the fact that the first two appeals, heard under it, resulted in orders allowing the appeal; quashing the conviction; and affording immediate relief to the prisoner.

By detailed examination of further cases in South Australia and in other Australian jurisdictions, the authors of this book powerfully demonstrate the need for remedies of this kind everywhere that the template criminal appeal provisions still operate. A statutory remedy to similar effect has been foreshadowed in Tasmania*. Meanwhile, in Victoria, a Practice Direction has been made by the Judges of the Supreme Court to address the significant and special problems that have arisen in the case of convictions based on expert testimony, including DNA evidence.

Such evidence can sometimes be powerful and exculpatory. It can prevent the conviction of an innocent accused and save miscarriages of justice. But it can also occasionally lend itself to error, distortions and injustices, against which the criminal process must be on special guard.

“especially if we are lawyers”

One departs from the reading of this book, and the many sobering cases reviewed in it, convinced that the steps towards legal reform, begun in South Australia, are the minimum that is needed. The authors realise this. They have pointed in the direction that the Australian legal system should take. The Australian constitutional system affords the advantage of a facility for legal experimentation, adaptation and variation. In earlier decades, South Australia led the nation in reforms of criminal laws against homosexuals; consumer protection laws; and environmental law reform. Now, thanks to political initiatives originally conceived by persistent legal academics, stimulated by civil society organisations and picked up by bold and caring parliamentarians, South Australia once again has offered the lead.

The forces of formalism, the siren song of cost restraint and the suggested merit of ‘finality’ need to be resisted in this struggle. There is no merit in the finality of the conviction of the innocent or legal indifference to their plight. Protecting the innocent is a badge of a civilised society that upholds universal human rights. The authors of this book will not rest until the challenge expressed in these pages is adequately answered in Australia. As citizens, we should give them our support. We should lift our voices to defend the innocent from wrongful convictions. And especially if we are lawyers.”
Sydney, 1 October 2015.

* Tasmania’s Criminal Code Amendment (Second or Subsequent Appeal for Fresh and Compelling Evidence) Act 2015 was signed into law a month later, on Monday 2 November 2015.

Other examples of Honourable Australians in the criminal justice system

The Honourable prosecutor Brett Sonnet
On 15 July 2006 at a mature age nightclub (over 28) in Melbourne, Maria aged 48 had a few drinks before being found semi-conscious in the women’s toilets. On 14 July 2008, a 21-year old Somali man, Farah Abdulkadir Jama was tried for her rape. Forensic samples taken from Maria had contained his DNA which led it to being said that it was a ‘rock solid’ case. His alibi was that on the night in question he was at the bedside of his very ill father reciting the Koran.

On 7 December 2009, the appeal court overturned the conviction. After 18 months of wrongful imprisonment he was subsequently awarded $500,000 compensation. It was a case of contaminated DNA evidence.

In her book The Tainted Trial of Farah Jama, (Wild Dingo Press, 2014) Julie Szego reports that when the error was discovered, Brett Sonnet, the prosecutor, pressed the Registrar on a Friday for an early hearing date and it was listed before three appeal judges (Warren CJ, Redlich and Bongiorno JJ) for the following Monday – the next working day.

Sonnet is said to have taken the responsibilities of the prosecution very seriously, and he thought that Jama should get an acquittal rather than a retrial. He realised that the judge’s summing up on the lies direction contained an error and that the conviction would have to go to a retrial on that point alone. However, he also formed the view that the DNA evidence as it then stood would not be sufficient to secure a conviction on the retrial. He agreed that bail would have to be allowed and that Jama should be given an acquittal rather than a retrial.

The Honourable Professor Stephen Cordner of the Victorian Institute of Forensic Medicine announced a review of the Institute’s protocols and he was the only one to publicly apologise to Farah Jama.

Sonnet had contacted Professor Stephen Cordner who conceded that contamination could have occurred where the examination had occurred at the hospital.

*********

The authors, Bibi Sangha and Bob Moles, have identified some 25 cases in the UK where prosecutors made joint application to court for an appeal to be allowed – it is established practice there, contrary to Australia.

In Burrell v R, Kirby J stated, ‘[d]uring more than 12 years on this Court I have seen joint support from the prosecution and the prisoner to permit the case of an accepted mistake in the reasoning of the intermediate court but once.’

‘Once in possession of evidence that the trial process was inappropriately compromised, prosecutors have a duty to ensure appropriate remedial steps are taken. Whilst it may not be the responsibility of the prosecution to tell the Court of Appeal that they think the appeal should be allowed, they may well tell the court that they do not object to such a course,’ they write. ‘Australian prosecutors have generally been reluctant to make such concessions.’

Indeed. The immediate past and present Tasmanian DPPs clearly do not appear in our list of Honourables, since they have demonstrated they prefer to insist on protecting the conviction – as seen in the controversial case of Sue Neill-Fraser.

“However,” write the authors, “there have been a few recent cases in Australia where appeals were not opposed by the Crown. In the rather exceptional circumstances in Von Deutschburg v R, the prosecutor conceded that on the basis of fresh medical evidence the murder conviction was unsafe and a verdict of acquittal was appropriate.

Another prosecutorial concession was made in the New South Wales case of R v McVittie during a second appeal brought against two armed robbery convictions. This appeal was initiated through the petition process following the revelation of police misconduct in planting a firearm on McVittie and obtaining a fabricated confession. This evidence only came to light during a Western Australian Royal Commission inquiry into police corruption.

Faced with such evidence, the prosecution had no choice but to concede that the safety of the two convictions was compromised and they had to be set aside. The Court of Appeal entered a verdict of acquittal on both counts.

Acknowledging a mistake is largely taboo in the Australian criminal justice system. And that’s a mistake.