What if … continued: how another appeal by Sue Neill-Fraser could get to court

Prompted by a reader’s question to our previous What if … story, Flinders University legal academic Dr BOB MOLES lays out how any new appeal could navigate the rules to arrive in court. 

It was a question from reader Geraldine Allan, posted in the comments section of our previous What if … story and no doubt on the minds of others who have followed the case of sue Neill-Fraser: “Given that grounds raised in [the story] were available/known before the first (2011) appeal, is there legal provision that would allow them to be now raised as “not previously argued in the earlier appeal”? I hope they can. My question is prompted by the strict rules to gain second appeal & arduous efforts to overcome the “fresh” and other legislated hurdles that had to be overcome to get to a further CCA hearing?”

‘TO ACHIEVE JUSTICE’

Given that the issues in the SNF case which give rise to an evident miscarriage of justice can be identified from the transcript of the trial there will inevitably be a question raised as to whether those issues can be seen to be “fresh evidence” which usually means ‘could not with reasonable diligence have been identified at the time of the trial’. Some might say that it is self-evident that they are not. But, legal reasoning is not always so straight-forward.

On a first appeal, the courts have taken the view that where a ground can be identified as a ‘substantial miscarriage of justice’ the court will call it fresh to allow it to be admitted, or not insist on that criteria being satisfied.

On a second or further appeal the requirement for freshness is part of the legislated ground of appeal so it would not be open to the court to ignore that requirement.

However, in the case of R v Drummond, the appeal court said that prosecutors and expert witnesses are required to comply with both the legal requirements attached to their duties and with the codes of conduct which govern their roles. That includes the duty not to lead evidence which is false or misleading or to make submissions to the jury which are false or misleading.

The court in Drummond also stated that an accused person (or their lawyers) are entitled to assume that prosecutors and expert witnesses will in fact comply with their legal and other duties, and the accused person and their lawyers are not required to examine and test their evidence or submissions to ensure that is so. Justice Peek in Drummond said if it is subsequently found to be the case that the prosecutors or experts have in fact failed in those duties then that finding will be sufficient to satisfy the requirement of ‘freshness’ and in most cases it will also be regarded as ‘compelling’ so as to satisfy the requirement for leave to appeal.

The overall approach of the appellate courts has been to ensure that people who have been wrongly convicted should not be prevented from having their convictions properly scrutinised by the appeal court because of some technicality of the preliminary procedures. On a first appeal, this amounted to the requirement for leave often being ‘not insisted upon’ or being ‘ignored’ so that the court could go straight to the substance of the matter – whether there has been a wrongful conviction.

On a second or further appeal, the appeal court would properly infer that the intent of the legislative requirement for leave is to weed out unmeritorious claims. It is not to refuse meritorious claims from being properly dealt with by an appeal court.

In the past, the appeal courts have set aside convictions in cases where a point which could have been taken at trial was not objected to at the time of the trial. In doing so the court would say that an innocent person should not be punished because their lawyer at the time of the trial was deficient.

In addition, the High Court has at times allowed a person to argue a point which was not raised with the intermediate appellate court. It can have regard to an appeal point not previously argued. Of course, the High Court cannot admit ‘fresh evidence’ in an appeal to the High Court. In this case, if the SNF case were to be appealed to the High Court, the point can be argued by reference to the trial transcript which is already part of the court record. It is not the transcript of the trial which is fresh evidence, but the recognition of the error made by the prosecutor or expert witness.

In R v Irving, the High Court said that it could ‘have regard’ to evidence which was wrongly excluded on the intermediate appeal, and could not be admitted as evidence before the High Court. Having done so it clearly gave rise to the perception that there had been a wrongful conviction. The High Court said that it could remit the case to the appeal court to allow the evidence to be admitted – or it could deal with the matter to achieve justice in the proceeding. The prosecutor conceded that it would be appropriate for the High Court to deal with the matter directly and it then set aside the conviction. This shows that sometimes prosecutors and even the court itself can ‘get around’ some technical requirements in order to ensure that justice is done.

I would expect that in the SNF case, if it were to go to the High Court, the prosecution would concede that the conduct of the prosecutor at trial was manifestly in error, and that the conviction should be set aside. The High Court does tend to bring out the best behaviour by prosecutors.

In these various ways, the correct issue can be put to either the High Court or to the appeal court on a further appeal. The goal always should be to ensure that innocent people do not remain incarcerated and that judges, lawyers and prosecutors, along with defence counsel, should always act with a common purpose to avoid such ‘catastrophic failures’ of the legal system, as such a prospect was described by the former Lord Chief Justice of England and Wales on a visit to Sydney some years ago.