Former High Court judge THE HON. MICHAEL KIRBY AC CMG argues that there is a need in Australia for greater concern and vigilance about the risk of miscarriages of justice – and that the Criminal Cases Review Commission model is the way to put that vigilance into effect . . .”without delay”.
HUMAN IMPERFECTION AND CRIMINAL TRIALS
No system of criminal justice is perfect. Some are more imperfect than others. The imperfections may arise from the wrongs of tyrannical rulers. During such regimes, the judges may become brutal in the extreme. The chances of securing justice from such judges will be remote. Yet even jurisdictions which pride themselves on the independence and incorruptibility of their judges may sometimes adopt crimes, or follow practices, that seriously impede the conduct of a trial and lead to unjust and wrongful outcomes.
Australia’s procedures of criminal justice were mostly inherited from England. This was the case in most of the other colonies of the British Crown. In fact, it is unlikely that the British settlements in Australia, would have been chosen as penal colonies, but for a crisis at the time in the English criminal justice system. Following the American Revolution of 1776-83, it became necessity for Britain to find an alternative place to which convicted prisoners could be sent, after the American settlements secured their independence. Once that happened, the Americans refused to accept more English convicts, preferring the free labour of unpaid slaves to boatloads of low class English prisoners. Even the humblest of these carried with them the residual entitlements of the common law of England, a fact that sometimes made them troublesome.
The English law had its protective features; but also a harsh and punitive trial system. There were many capital crimes. There were, at first, no procedures for appeal, least of all appeal on the factual merits. Even for conviction of seemingly trivial offences, the sentences imposed were heavy in order to deter crime. Procedures that today appear irrational (such as forbidding the accused to give oral testimony on oath) lasted well beyond the criticism by reformers, including Jeremy Bentham and J.S. Mill. Throughout the 19th century, despite many calls for reform, some of which were eventually adopted in the great criminal codes exported to countries of the British Empire, the United Kingdom remained resistant. Bentham blamed “Judge & Co” for fighting against reforms, generally with success.
Some reforms reluctantly adopted elsewhere found their way into the criminal law and practice of the Australian colonies. These included limited systems of appeal by which, at least on issues of law, the trial judge could reserve disputable questions to be resolved by a form of appeal. As well, eventually the prisoner, commonly facing the risk of execution if a jury should return a verdict of guilty, was allowed to give evidence on oath. The jury would hear the prisoner’s sworn version of events, if the election was made to give evidence. Before that, the most that was allowed was usually an unsworn statement from the dock – a procedure that persisted for a long time after the alternative became available.
impediment to reform
When I was taught criminal law in the first year of my law course in Sydney in 1958, the texts that we studied were those written in England by Rupert Cross and Asterley Jones. There was only occasionally a glance at the local statutes that enumerated the crimes punishable and the procedures to be followed in the local jurisdiction.
Against this background, it will be no surprise that, at the time of Australia’s federation and political independence, decisions had been taken, copying the United States Constitution and not that of Canada, to leave the bulk of the criminal law as the responsibility of the States and Territories; and not of the Federal Parliament. No national criminal code was adopted. Issues of evidence in criminal trials, criminal procedures and substantive criminal law were thus left to the sub-national jurisdictions concerned. This was another impediment to substantial reform. Because crime was basically regarded as a local matter, change to the law was commonly viewed as controversial.
The criminal law was not readily susceptible to change.
One change that was adopted followed, in the manner of those times, a reform to criminal procedure earlier adopted by the British Parliament in 1907. This involved the enactment of a Criminal Appeal Act of that year. That Act was designed to provide a larger ambit of criminal appeal involving issues of substantive criminal law; criminal trial procedures; and sentencing, all measured against the risks of illegality and miscarriages of justice. The English Act of 1907 applied initially to England and Wales, but not to Scotland or Ireland. Each of those parts of the United Kingdom had their own criminal laws. In the place of the partial reforms allowing for the reservation of points of law and the issue of a writ of error, the 1907 Act established a new Court of Criminal Appeal with different and larger powers.
risk of wrongful convictions
The Criminal Appeal Act 1907, and its Australian copies, were aimed at reducing the risk of miscarriages of justice. However, because no human system is entirely free from error, it was often possible to attract attention to particular features of widely covered cases in which the risk of error could quite easily be asserted and illustrated so as to make the case of interest to the seemingly insatiable appetite of the public. One of the commonest features of criminal justice, was the abiding fear that an innocent person might have been convicted. Although, since 1984, capital punishment was abolished in all jurisdictions of Australia (and last carried out in 1967), speculation that a particular prisoner had been condemned to serve a lengthy period of imprisonment for a crime that he or she had not committed, was a thought that citizens, if they ever turned their mind to it, would worry about. Judges and other experts might protest that the criminal justice system was designed to eliminate, or greatly reduce, the risk of wrongful convictions. Yet the nightmare remained. The modern media, not always for wholesome reasons, would play upon the nightmare. They would unsettle those who feared that mistakes were common and who believed that more should be done to prevent them occurring or to provide redress where error could be demonstrated.
There have been many vivid cases of alleged miscarriages of justice in Australia that have become fixed in the national psyche. Commonly, they have included some peculiarity or special feature that meant that the case refused to go away, even when the legal process may have been finally spent.
judges can make errors
My own, albeit innocent, involvement in a miscarriage of justice affecting Mr Mallard, has helped to focus my mind on this danger. Judges in appellate courts work under very great pressure. Generally, they share the burden. They are therefore highly dependent on the time, expertise and perceptiveness of the judges rostered to participate. If I had enjoyed the time to conduct for myself the detailed examination of the evidence performed by counsel in the second appeal, I might have spared Mr Mallard eight years of unwarranted imprisonment.
Subsequently, a judicial commission of inquiry, investigating other evidence, concluded affirmatively that the murder of the jeweller had been the work of another prisoner. The Mallard case showed that even conscientious judges, observing high standards, can make errors and miss points. This is a lesson I have never forgotten. I have shared it with judicial colleagues so that all will be conscious of the risks of miscarriage and of the need for institutional improvements.
TEMPLATE APPEALS TO CCA
A single right to appeal: I will now identify three particular issues which have intervened to limit the capacity of courts of criminal appeal to protect possibly innocent prisoners from the risks of a miscarriage of injustice.
The first does not concern itself with the grounds of appeal but with the legal right of appeal against criminal conviction in the language in which that right has been expressed in the 1907 Act and its Australian copies.
In the United Kingdom, as in Australia, the prevailing view has been, from the beginning, that the common form legislation afforded a convicted prisoner but a single right to appeal. In a number of cases judges held that, appeal, being a creature of statute, there were no rights of appeal beyond those that had been expressly granted by the legislature. 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 a court of criminal appeal to entertain an appeal were exhausted. Occasionally, judges, including myself, have 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 terms, 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 is that it was not the only possible interpretation of the language used by Parliament. That language was facultative and beneficial. It was 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 an expansion of appellate rights for convicted prisoners. So much had been evident from the start, before and after the enactment of the Criminal Appeal Act 1907. This judicial hostility continued despite the increasing evidence of the utility of the appeal right both in the United Kingdom and in derivative jurisdictions.
Against the background of this restrictive interpretation of the availability of the right to appeal, the High Court of Australia also held that it was itself unable to receive 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 reopen an appeal or to hear a further appeal or application for that purpose. Additionally, for constitutional reasons, the High Court of Australia 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 view about confining the facility for reopening criminal appeals with which I disagreed. I pointed out that, as a consequence, “Justice in such cases is truly blind. The only relief available is from the Executive Government or the media – not from the Australian judiciary”. Such a position appeared unsatisfactory.
Ministerial referral to court: There was a further initiative adopted in the Criminal Appeal Act 1907. It allowed an applicant, after exhausting the right to appeal, to apply to the attorney-general for the reference of the question of a possible miscarriage to the appellate court, to be heard as an appeal. However, this exceptional procedure depended in the first instance upon action not by the judiciary but by 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 “fail-safe” procedure were clear, including to the prisoner concerned. It presented the arguable existence of a conflict of interest and duty. In Von Einem v Griffin, the South Australian Full Court stated that the power of statutory referral following such a petition, provided ‘no legal rights’ as such to the applicant merely a privilege. 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 processes of the Attorney-General were not subject to judicial review. Some of these judicial dicta were written before more recent authority has clarified the ambit of judicial review in such matters. The notion that an official, exercising powers derived under legislation, enjoys a completely unfettered, subjective discretion may be inconsistent with the requirements of the rule of law, which Justice Dixon described in the Australian Communist Party Case, as a basic principle of Australian constitutionalism. However, the net effect of the foregoing decisions has been that a person, claiming to have been wrongly convicted, might end up in a legal blind alley. The prisoner was obliged to seek redress from the Attorney-General. Yet that is the very office-holder who has ultimate responsibility for the agencies (such as forensic sciences, police, prosecutions and the courts) that may be the obstacle to the grant of the relief that the prisoner seeks.
It was in this context that those pressing for legislative reform in South Australia presented a submission to the Australian Human Rights Commission complaining about the situation that they faced. The submission included the complaint that the Australian criminal appeal provisions did not properly protect the right to a “fair trial” or the right to an effective “appeal”. The right to “appeal” is mentioned in the International Covenant on Civil and Political Rights (ICCPR), art. 14.5. Australia is a party to that Covenant and to the Second Optional Protocol. Under the latter, persons in Australia, who are adversely affected, enjoy a right of communication to the Human Rights Committee (HRC) of the United Nations. The HRC pointed out that the ICCPR requires that such rights be determined by competent ‘judicial’ authorities, applying established legal rules in a ‘fair and public hearing’. An ‘unfettered’ executive discretion would not conform to the requirements of the Covenant. It was not a ‘judicial’ decision. It took place behind closed doors. These were defects provided by the Criminal Appeal Act procedures. The same defects would appear to exist in the special inquiry procedures provided in New South Wales and the Australian Capital Territory.
institutional defect needs addressing
No initiative has been commenced in New South Wales, Queensland or either of the mainland Territories of Australia. It seems inherently unlikely that these Australian jurisdictions are immune from the risks of miscarriages of justice accepted to exist in South Australia, Tasmania and Victoria. In the event, one argument that proved most persuasive for the advocates of reform and gained unanimous support in the South Australian Review Committee. This pointed to provisions enacted by all Australian legislatures, notwithstanding an earlier acquittal, whereby a prosecutor was permitted to apply to the court for permission to commence a further prosecution based on fresh and compelling evidence of guilt. The South Australian Committee reasoned that it would only be just and equitable to allow a person convicted of a serious crime to seek a like permission for reconsideration of the case where there was supporting fresh and compelling evidence of a wrongful conviction. Why this argument has not so far attracted support in the remaining Australian jurisdictions is difficult to imagine. It shows the consequences to which “democratic” politics, repeated ‘law and order’ electoral campaigns, and occasional media hysteria have driven Australian criminal law and practice towards the ethical bottom.
Recent cases in Australia, including some following the facility of further appeals and scholarly commentary on the topic have demonstrated an important institutional defect that needs addressing. It cannot be suggested that the needs that have led to the creation, or intended creation, of CCRCs in New Zealand and Canada are completely absent in Australia. On the contrary, those needs are plainly present, at least to the same degree. They are palliated by the provision of a new additional right of appeal in exceptional cases; but then in only three States. Such further rights of appeal do not confront the institutional defects of overworked judges; hostile or unsympathetic professional mindsets, excessive professional dedication to finality; and apparent indifference to, or acceptance of, some cases of wrongful conviction as “inevitable”, “inescapable” and therefore “tolerable”. Such indifference was reduced but not fully addressed by the criminal appeal template of 1907.
There is a need in Australia for greater concern and vigilance about the risk of miscarriages of justice. As Chamberlain, Mallard, Pell and other highly publicised cases show, courts of criminal appeal can sometimes rise to the challenge and afford much needed redress. The CCA institution then works as it should. But sometimes they fail. The statistics in the performance of the differently organised, non-judicial institutions of the CCRCs in the United Kingdom suggest that there is a gap in Australian criminal law and practice and in our institutional arrangements that is not being met. Seemingly, addressing this institutional defect is not even presently on the horizon. This says something about the tolerance in Australia of a proportion of people who may possibly be innocent of the crimes of which they have been convicted but who cannot secure relief. There is thus an apparent disharmony between the very high standard expressed by the High Court of Australia in Pell v The Queen and the somewhat lower standard tolerated by politicians, legislatures and citizens concerning the enactment of institutions that will uphold the higher standards. It is imperative that this disparity should be remedied without delay.
* These selected extracts are from Kirby’s revised paper on Criminal Cases Review Commission, for a forthcoming book to be published in Canada, edited by Professor Angela Campbell at McGill University, Montreal. (Citations have been omitted.)
In a supplementary note to wrongfulconvictionsreport, Kirby says “Each state (and the Federal government for Federal and possibly Territory convictions) could create their own CCRCs in a co-ordinated manner, avoiding the mixing of Federal and State powers.”
And Flinders University legal academic Dr Bob Moles notes: “If the Federal Attorney General wanted to encourage and/or provide open support for such a development, it would be regarded as an important reform initiative.”