Justice may depend on where you live

Andrew L. Urban.

If you’ve been wrongfully convicted, just hope you’re living in a jurisdiction with well developed correcting functions in the legal system. Differing legal mechanisms in different places produce uneven outcomes. And while Australia has yet to even officially discuss a Criminal Cases Review Commission (CCRC), Canada has asked two Australian legal academics for advice on how to set up theirs. And the advice includes a notable innovation. 

Last week’s submission to the Canada Commission by Flinders University legal academics Bibi Sangha and Dr Bob Moles includes the outline for an innovative and practical process to address a challenge Canada – and Australia if we ever get round to doing it – will face, if/when it establishes a Criminal Cases Review Commission. The objective of such a body, like its model of origin in the UK*, is to improve the delivery of justice for those who are wrongfully convicted, after their first appeal has been (in their view unjustly) dismissed.

“The experience of the UK CCRC and the emerging information about the NZ CCRC is that there exists a significant gap between the noble aspirations to investigate claims of wrongful convictions, and the capacity of the system to meet those demands. (The) NZ CCRC had received around 220 applications in the first year, to be dealt with by 7 investigators and legal staff. We are told that more than 40 of them involved convictions for murder and manslaughter,” say the authors.

partnering projects

“The challenge here will be to set up a CCRC in such a way that it is not doomed to failure because of the disconnect between the enormity of the task and the availability of resources,” they note.

To address this ever-present challenge, the authors propose the development of university based partnering projects. The concept is fairly simple: the proposal is to identify and utilise undergraduate and postgraduate students’ capabilities. “…they could be engaged in active learning and they could ‘value-add’ to the work of legal practitioners through their engagement with them.

“By placing students in teams, they could begin to learn from each other, especially if the less-advanced students were working with those more advanced. By placing student teams with legal practitioners, student teams could ‘add-value’ to the results which the practitioners could otherwise have achieved. “The students of course would have much to gain by working with skilled legal practitioners. The practitioners, in turn, would more readily provide their services, if the student team could do an initial review of the case to determine if there is a genuine issue to be dealt with.

In earlier trials, the authors found that “organisations such as the police and forensic services were willing to undertake constructive engagements with our teams, and to benefit from those interactions with them.

“By integrating law students with those from other disciplines such as sciences, information technology, psychology and the social sciences, we could rapidly expand the student’s awareness of each other’s insights beyond what would have been achievable through traditional lectures and seminars.

“In short, university students represent a valuable resource, which could be mobilised as part of a problem-solving program, without incurring significant additional costs. In addition, our experience demonstrated that professional people such as lawyers, computer scientists, accountants and a wide range of forensic experts would more willingly give of their time on a pro-bono basis, if they were supported by a student team to help them get to grips with the issues.”

And, the authors say, “there are compelling reasons to introduce a statutory right to a second or further appeal as has occurred in (some states in) Australia. If that were to occur, then it would substantially alter the potential role and function of a CCRC. It would no longer be seen to be the ‘gatekeeper’ to the appeal court, but a partner in identifying and resolving potential wrongful convictions.”

In Australia, notable by their failure to introduce such legislation, NSW, Queensland and the Northern territory make the correction of wrongful convictions even harder than it already is.

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 did Neill-Fraser.

* The UK CCRC, which has been operating now for some 24 years, has in recent times attracted criticism from innocence projects which claimed it was too restrictive in the criteria which it applied for referrals to the appeal court; “that it should not be involved in sentencing and court martial appeals; that it should be able to prioritise the more important cases, spend less time on car parking and dangerous dog cases; and even that it did not investigate claims of ‘actual innocence’ and focussed instead on legal criteria which were thought to be more amenable to a prediction of a successful appeal.

“It is clear that the funding for the CCRC in recent years has declined significantly. This has led to staff reductions and the appointment of part-time as opposed to full-time commissioners. there is a statutory requirement for the CCRC to have 11 commissioners who were on full-time salaries with benefits. However, more recently the commissioners had been put on ‘minimum one-day-a-week’ contracts.”

This is one of the reasons the authors advise the Canadians to consider the partnering projects, which would enhance the CCRC’s ability to handle a larger volume of cases without oversized costs.

Associate Professor Bibi Sangha and Dr Robert Moles of Flinders University

# The authors, Bibi Sangha, Adjunct Associate Professor, Flinders University of South Australia and Dr Robert N Moles, Adjunct Associate Professor, Flinders University of South Australia have 20 years of experience specialising in the study of wrongful convictions and have authored several books on related subjects.

PS: In the US, Minnesota Attorney General has just established a Conviction Review Unit to “identify, remedy and prevent wrongful convictions”.