In the following letter, wrongfulconvictionsreport – with the support of several senior figures in the legal community – urges the Attorney General to consider establishing a Criminal Cases Review Commission, arguing valid reasons and outlining a practical formula. We hope to receive a positive response.
Senator The Hon Michaelia Cash
Attorney General & Minister for Industrial Relations
May 17, 2021
Dear Attorney General,
I respectfully wish to bring to your attention the opportunity of a significant reform in Australia’s criminal justice system that is readily available at little cost and without cumbersome legislative process: the establishment of a Criminal Cases Review Commission (CCRC).
Consistency across Australian jurisdictions:
Given that South Australia, Victoria and Tasmania have introduced a further right of appeal (with Western Australia on the way) their citizens enjoy a slightly improved, safer system of criminal justice than the rest of Australia – which is surely an inadequate and unjust state of affairs.
As the Australian Human Rights Commission pointed out in 2011, without this reform, the criminal appeal systems of all of the Australian states and territories were in breach of the International Covenant on Civil and Political Rights as they failed to guarantee the right to a fair trial or the right to an effective appeal. Their report is available at http://netk.net.au/CCRC/AHRCSubmission.pdf
National enforcement of international treaty obligations is clearly part of the responsibilities of the Federal Government.
Australia had maintained common-form criminal appeal provisions in all states and territories for over 100 years. It is clearly inappropriate for half of the Australian states to have appeal rights not available to the citizens in the other states and territories.
While there are existing mechanisms in place for the review of criminal cases in Australia, at issue is how effective and robust such mechanisms are in avoiding miscarriages of justice. There were similar mechanisms in place in Britain and the US before those jurisdictions each established their own CCRC (or equivalent). Hundreds of wrongful convictions later, it is obvious that the pre-existing mechanisms (much like ours are) were not effective enough. Innocent people were jailed and in some cases hanged (four of them in the UK) for crimes they did not commit. Each one represents a catastrophic failure of the legal system. Each one had access to the existing appellate process.
Errors and mistakes are made in jurisdictions all over the world, including Australia of course, and sometimes such errors go uncorrected at appeal. (Estimates put it at around 5% of serious criminal convictions every year.) Having an effective mechanism in place to correct such mistakes – as a reasonable step before approaching the High Court – is the purpose of a CCRC.
The CCRC in the UK started work in April 1997. Between then and the end of April 2019 it has, according to its website:
“Referred 760 cases to appeal courts;
Of the 689 cases where appeals have been heard by the courts, 466 appeals have been allowed and 210 dismissed; (https://ccrc.gov.uk/case-statistics/)
589 cases are currently under review at the Commission and 115 are awaiting review
So far we have received a total of 27,235 applications (including all ineligible cases) and completed 26,530 cases.”
In addition to the British CCRC, Scotland, Norway and New Zealand have now established similar bodies, with a Canadian CCRC in progress.
Australia inherited Britain’s legal system – it should also inherit the concept of Britain’s Criminal Cases Review Commission, adapting the structure to our multi-jurisdictional arrangements.
I have the benefit of advice on this matter from the esteemed legal academic, Dr Bob Moles, with whom I have had a working relationship in matters to do with wrongful convictions for several years. He and I have discussed this subject many times and are of the view that with Australia’s unified legal system, it is incumbent on all jurisdictions to work in tandem to ensure just outcomes in law. It is also worth noting that some of the jurisdictions are currently non-compliant with the International Covenant of Civil and Political Rights. (Dr Moles is Adjunct Principal Researcher, College of Humanities, Arts and Social Sciences, Flinders University of South Australia, and the co-author of Forensic Investigations and Miscarriages of Justice, (2010) Miscarriages of Justice: Criminal Appeals and the Rule of Law in Australia LexisNexis (2015) and A State of Injustice (2004) among other books on the subject.)
Below is Dr Moles’ advice, emphasising the difference between a Federal and a national CCRC structure:
“When speaking of a CCRC I sometimes refer to the possibility of a “national” CCRC but never to a Federal one.
“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 and territory, resources are saved by having a single body exercising the appropriate powers for each state and territory.
“According to basic jurisprudential principles of sovereignty – as explained by Robert French, former Chief Justice of the High Court – 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.”
The establishment of a national CCRC has authoritative supporters, including:
The Hon Michael Kirby writes: “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,” (A New Right of Appeal as a Response to Wrongful Convictions – but is it Enough? Criminal Law Journal (2019) 43 Crim LJ 299).
Mr 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.”
Robert Richter QC – “It’s the only sensible thing to do.”
Margaret Cunneen SC, defence barrister and former Deputy Senior Crown Prosecutor (NSW), favours the establishment of a CCRC and believes that “a prosecutor’s worst nightmare is a wrongful conviction.”
Ralph Bonig: [then President of the Law Society of South Australia] “We have publicly supported the establishment of such a body in South Australia, and there has also been talk about a national body and we’ve publicly supported that but not to the detriment of having something in South Australia.”
Professor Stephen Cordner, former director of the Victorian Institute of Forensic Medicine, has reviewed methods of dealing with wrongful convictions and argues “we make it too hard to have a false conviction overturned and statistics indicate there are innocent people denied justice. Australia needs a Criminal Cases Review Commission similar to the English one,” he told The Age (August 22, 2020).
Former Tasmanian Premier Lara Giddings officially launched Andrew L. Urban’s, Murder by the Prosecution (Wilkinson Publishing) on September 6, 2018 at Fullers Bookshop in Hobart, calling for the establishment of a Criminal Cases Review Commission and stating that the provisions of new, further right to appeal legislation “set the bar too high” to be truly effective in delivering justice.
Criminal appeal system inadequate on Human Rights grounds:
As mentioned above, the Australian Human Rights Commission (AHRC) has stated that “the current systems of criminal appeals in Australia may not adequately meet Australia’s obligations under the ICCPR in relation to the procedural aspects of the right to a fair trial. More particularly, the AHRC has concerns that the current system of criminal appeals does not provide an adequate process for a person who has been wrongfully convicted or who has been the subject of a gross miscarriage of justice to challenge their conviction.”
The Attorney General would surely agree that in our democracy the right to a fair trial and effective appeal mechanisms are essential to maintain confidence in our criminal justice system. I respectfully urge the Attorney to consider the matter.
Andrew L. Urban
Publisher & Editor