A sealed envelope, a secret instruction? Or just indifference?

A sealed envelope on the desk of every incoming Federal Attorney-General contains a short, unsigned, cryptic instruction: “Avoid CCRC”. How do we know this? It’s elementary, my dear Whatsyourname; it’s like this … ANDREW L. URBAN tells a tale you may find hard to believe.

I picked up the first clue shortly after the appointment of then Senator George Brandis QC as Attorney-General in September 2013. In October, he was invited to attend the special one-off Sydney screening I hosted of the Eve Ash documentary, Shadow of Doubt, where a panel including the legendary Chester Porter QC would discuss the subject of the film, Sue Neill-Fraser’s conviction for the murder of her partner Bob Chappell, with a focus on the police investigation that some have called deficient.

A letter followed the invitation, in which I included the following: “The audience will include invited guests with a special interest in our justice system viz its failure to correct miscarriages of justice, which is a distinct possibility in the case of Sue Neill-Fraser as explored in Shadow of Doubt.

“It is in this broader context that I respectfully urge you to engage with the matter, namely the need for a body along the lines of a Criminal Cases Review Commission (or equivalent) as exists in the UK and as you know, now even in South Australia.

“…and I urge you to champion this objective, ” I wrote, then in my capacity as Editor of Pursue Democracy, a blog dedicated to … well, pursuing democracy, a system of government very much reliant on a dependable criminal justice system.

Senator Brandis was a no-show at the screening. But I did get a reply – not from his Attorney-ship, but Ms Kelly Williams, Assistant Secretary, Criminal Justice Division. In her letter dated November 20, she stated (perhaps unnecessarily): “There are existing mechanisms in place for the review of criminal cases in Australia.” Well, yes, and 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) were not effective enough.

Next it was Karen Horsfall, also Assistant Secretary, Criminal Justice Division, who replied to that letter on December 5. In what has been a pattern of responses to the subject, the letter again “did not address the substance of either of the two specific issues I have raised in my letter of November 26…”

An election later, the new kid on the Attorney-General block (with Brandis elevated to the High Commission in the UK) was Christian Porter. In March 2019, ever an optimist, I wrote along similar lines, presented the same arguments … and got the same response. By now, I could read Bureaucratese with ease: the reply translated to ‘not interested’. I wrote asking why, or more precisely, why not, there was no answer. That’s the most sincere response: there IS no answer as far as I can see.

Fate intervened and switched Attorneys-General once more. On March 30, 2021, Senator Michaelia Cash was appointed Attorney-General. Yep, I wrote to the new Attorney…

“I respectfully wish to bring to your attention the opportunity of a significant reform in Australia’s criminal justice system …” and launched into my arguments.

… and you’ll never guess what the reply was. Or maybe you have …

“The Attorney-General has requested that the Attorney-General’s Department respond to you on her behalf,” wrote Marion Barraclough, Acting Director, Transparency and Criminal Law Branch, who then restated the status quo for my benefit and thanked me “for bringing my concerns to the Attorney-General’s attention.” As per that secret instruction on the incoming A-G’s desk, though, she wrote that “the Australian Government is not currently considering establishing a federal Criminal Cases Review Commission.” Ms Barraclough gave no reason for that.

I didn’t spare my keyboard: “Considering the importance of a reliable criminal justice system that can inspire confidence, it is puzzling why the Department has shrugged off its obligations without even the courtesy of a rationale (ironically from the desk of Acting Director
Transparency and Criminal Law Branch; this was another clue).”

My rather blunt reply to Ms Barraclough stated that it was “deeply disappointing that your letter doesn’t actually address any of the issues raised in my letter of May 17, 2021.” I also chided the Department: “It is somewhat insulting to all Australians (and notably to those highly respected members of the legal profession supportive of the proposition) to dismiss out of hand the serious matters that are canvassed…”

Among those I cited in my latest letter as supporters of a CCRC model were former High Court judge The Hon. Michael Kirby, Robert Richter QC, Margaret Cunneen SC, defence barrister and former Deputy Senior Crown Prosecutor (NSW), and Professor Stephen Cordner, former director of the Victorian Institute of Forensic Medicine.

I went on to reiterate (more for the record than in any expectation of a response) some of the key issues, perhaps most prominently the matter of inconsistency across jurisdictions:

“Consistency across Australian jurisdictions is absent; the desirability of a network of State CCRCs is underlined by the absence of uniformity in regard to a further and subsequent right to appeal. For example, in Tasmania the Court of Criminal Appeal is currently considering a second appeal by Sue Neill-Fraser against her 2010 murder conviction. But in NSW, where the Court of Criminal Appeal has dismissed the appeal against his murder conviction of Robert Xie, he does not have the same right to a second appeal as does Neill-Fraser. This situation is brought about by differences in legislation that allow further and subsequent appeals. A body such as a CCRC would provide a road to a remedy – and would continue to do so even if those legislations were brought into line. There are strong arguments that both convictions have resulted in the incarceration of innocent people.”

The sealed envelope and its cryptic contents remain the only explanation for the Government’s inertia in this matter. Or is it just indifference…?

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11 Responses to A sealed envelope, a secret instruction? Or just indifference?

  1. TKG says:

    I just watched all 6 episodes of the infuriating, riveting, heartbreaking series.

    Answers seem simple enough, which is usually the case. Before she died, Sue’s mother stated the obvious (paraphrased):
    It was probably just some petty criminals who surprised Bob while doing their mischief.

    And that has been PROVED to be the case.

    Then Sue’s daughter observed (paraphrased):
    Meaghan’s reaction seems that of someone more than just a witness.

    In the end, the 3 generations of victims will prove the wisest, with Sue in the middle of it all making the most of her unjust incarceration like the classy lady she is.

    Now, who the hell’s hair was that on the jacket?

    Meaghan either had a hand in Bob’s death or may have even egged it all on. Whatever the case, we know the basic truth & at least two of the players (Meaghan & Paul), but it’s all about political reputation, not truth. That a justice system can work like this is cautionary to the USA (where I am). We are moving backward to be just as bad or worse, where innocent people are “canceled” & convicted on NOTHING while the truth is OBVIOUS to anyone with a brain.

  2. owen allen says:

    I have noted Andrew that you have been doing fantastic work for democracy and justice.
    edit…..For a long time…
    You are my friend, my coee, my accomplice; my brother.
    Come and ride with me sometime, I have a spare Harley.

  3. Robyn Pogmore says:

    I will wonder forever, I fear, why the petition for Kathleen Folbigg’s release is left sitting in the Attorney-General’s office. Formal letters to the AG receive a template response. In a direct phone call to Mark Speakmans Cronulla office I was firmly referred to his office at Parramatta, where a male person blocked every question, then told me that it was in the hands of the criminal law people. The criminal law person scornfully informed me that they worked under the umbrella of the AG ,and transferred me back to his office , where a cheery young lady told me to write an email to an address which does not exist. DEALING WITH POLITICIANS BRINGS NO LOGICAL RESPONSE.

    • andrew says:

      Your story is ample demonstration why the law and politics should not mix. Anytime politicians are faced with a matter such as this, they make a mess of it. Poor Kathleen is not the ony one whose petition is gathering dust on Speakman’s desk …

  4. mbc says:

    Dear Andrew, hard-hearted people in positions of power are some of the most souls destroying engagements our family have endured for 6yrs with regard to my brothers matter. From the judges to the penal system, the politicians, journalists, chaplaincy organisations & police (higher levels).

    Perhaps another approach (long term) could be through the University level. Engage those going on to the relevant professions (law, policy, politics, journalism etc), planting the seed educating them, and inspiring them to the noble work of being part of a movement that rights a wrong.

    Do you think a petition through Change.org could be of value even to educate the general population? I really like the one being run by Keith Owen on Civilian oversight and changes to police misconduct and corruption investigations. He just keeps putting out regular updates.

    When one looks at the different streaming platforms and see the abundant content on miscarriage of justice films (based on true story) you wonder, do people understand that this is real or is it because it’s too far from home (no personal attachment) and therefore not moved to do anything.

    The lack of action/care to change should go down as a blight on our history books. All those who could have done something amazing should hang their heads in shame. Not you Andrew, I thank you for your untiring service.

  5. Brian Johnston says:

    There is no envelope. The elected politicians have no power. They seek their advice from the ministries, there lays the power. The appointed officials are just that. There is a power behind and above the politicians and officials, a powerful secretive clique, it is they who do not want the CCRC, their fingerprints are everywhere.
    They closed down the Australian auto industry. It wasn’t helped that Australians were not patriotic enough to buy Ford & Holdens in large enough numbers.

  6. Peter says:

    When Marion finishes her performance as an Actress (“Acting”), she could become the Director of Translucency in the Criminally Lax Branch. :)

  7. owen allen says:

    It seems to me that Government that does not want to introduce worlds best practice of justice, lagging behind other countries like New Zealand, Canada and the United Kingdom, must have something to protect.

  8. Rodger Warren says:

    Hi Andrew
    There are many people on both sides of politics who will have to live with the knowledge that they failed to act on expert advise to form a CCRC or similar body.
    We know who they are and we will not forget them.
    Take care
    Rodger Warren

  9. Rosemary says:

    You would have to wonder why it is always dismissed out of hand and it seems you are right on the mark with the baffling indifference!

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