In a submission to the Members of the Tasmanian Parliament this week, legal academic DR BOB MOLES of Flinders University, articulates the non-contentious legal principles in the Sue Neill-Fraser case; “if any one of the substantive points is sustained, it will satisfy the test for the overturning of the verdict at trial.” And he explains “Why we should reach a consensus.” This is an extract of his submission.
The legal principles referred to (in this submission) are clear and non-contentious – as are the references set out from the trial transcript. The incompatibility between them cannot sensibly be denied. It is also clear that if any one of the substantive points is sustained, it will satisfy the test for the overturning of the verdict at trial. As mentioned in our reports, the preferred position is to conduct ‘post-appeal’ reviews on a collaborative rather than an adversarial basis. Prosecutors, police, forensic services and academics (as well as politicians) should all have a mutual and shared interest in identifying and rectifying any potential wrongful convictions at the earliest opportunity.
At the same time, we must acknowledge the evident embarrassment and ‘cognitive dissonance’ which arises when facing the possibility of the serious consequences of a wrongful conviction. The former Chief Justice of the UK said once when visiting Sydney that it would amount to a ‘catastrophic failure’ of the legal system. It is only sensible to acknowledge, that in the most serious cases of such failures, those who have participated in the system giving rise to such catastrophes, may not be the first to identify them or to bring them to public attention. In such cases, the final and most important opportunity to provide the required scrutiny, is through the parliament; the body which has ultimate responsibility in all cases for not just making the law, but also ensuring that it is effectively and fairly applied to all citizens.
As a law student, I always had in mind the words of a well-known English judge of the day (Lord Denning) who would say ‘be you ever so high the law (the parliament) is always above you’. As an example of recent reticence, I can point out that we first expressed concerns about the wrongful conviction of Mr Keogh in South Australia in 2001. It took another thirteen years, numerous submissions, petitions, complex legal procedures, books, articles, television programs and an historic change in the law on criminal appeals to get his conviction overturned. Most of that was entirely unnecessary as the basis of his wrongful conviction had been clearly explained at the outset all those years earlier. Similarly, in the UK, in each of the wrongful convictions in which people were hanged, it took an average over 40 years to accept that they were in fact wrongfully convicted. Yet the evidence which clearly demonstrated the nature of the wrongful convictions had been available since the trials all those years earlier.
In recent years, we have written and published leading textbooks on the subject of wrongful convictions. Forensic Investigations and Miscarriages of Justice (2010) is an international review of the law and cases on wrongful convictions. It was favourably referred to by a Canadian Supreme Court judge in a lecture he gave in Edinburgh when he mentioned the importance of our critique of forensic errors. It just happened to include the same error which was taking place in the Neill-Fraser case at that time. It was this book which led to our submitting a Bill to establish a Criminal Cases Review Commission in South Australia and which in turn led to the establishment of the new right of appeal.
Miscarriages of Justice: Criminal Appeals and the Rule of Law (2015) set out the development of the arguments for the new right of appeal.
It also has chapters on the role and rules governing expert witnesses, prosecutors and the identification of wrongful convictions in the new appeal framework. It is clear that our work has had the support of eminent jurists and forensic experts in Australia and overseas. The Hon Michael Kirby AC CMG, our well-respected former justice of the High Court, was kind enough to write the Foreword to each of the above two books. The Hon Justice Stephen Goudge, a Court of Appeal judge for Ontario, and Commissioner in a leading inquiry into baby deaths had retained myself and Bibi Sangha to provide an expert report to his inquiry. In launching the above book, he said we were ‘eminently qualified experts’ who were able to elucidate thoughtful recommendations to policy-makers in all three jurisdictions of Canada, the UK and Australia.
It is clear that the errors identified in the wrongful conviction of Ms Neill-Fraser would be instantly recognised as such by many of the leading forensic experts, prosecutors and specialists in wrongful convictions across each of those jurisdictions. Indeed, it is the common practice in Canada for their judicial inquiries to reach out to experts in other jurisdictions to assist them. It would be quite simple and inexpensive to subject our reports to such scrutiny.
In the event that we were able to reach a consensus that appealable error had occurred in this case, the procedure for its correction is simple and readily available. There have been over 20 cases in the UK where the Crown has conceded that appealable error has occurred – sometimes in cases where they had every intention to proceed with a retrial. Once the Crown concedes that the appeal should be allowed, then with the agreement of Neill-Fraser’s legal team, they could make a joint application to the intermediate appeal court for a further appeal. The new legislation allows for a ‘second or further appeal’. In the Australian case of Farah Jama, the prosecutor, having realised that an appealable error had occurred, applied to the appeal court for an urgent hearing of the appeal. The court sat the next working day. The judgment consisted of a single sentence: The Court, having read the materials filed by the parties and having considered the submissions and concessions of the Crown, is satisfied that it is appropriate to order that the conviction relating to the applicant be set aside and a verdict of acquittal be entered. We see no reason why the same approach cannot be adopted for Ms Neill-Fraser. We would be most grateful if you would give careful consideration to these reports and the issues which they raise.
Bob Moles adds this note:
I understand that this matter is currently under consideration by the Court of Criminal Appeal. However, that should not prevent all further consideration of this matter in the interim. In my view the correct procedure would be to request the DPP and the FSC to consider the issues which have been raised in our main research paper. It would be a simple matter to check our references to the trial transcript with the online version which is available here:
The relevant scientific and legal principles would be well known to any reviewer being fundamental and non-contentious.
If after completing their review which could be accomplished within a single day, they were to agree that any one of the substantive issues had been made out, then they would have to accept that this case amounted to a ‘substantial miscarriage of justice’ warranting the overturning of the conviction.
In that event the further procedure would be straightforward.
The Crown has a duty of disclosure.
Justice Blue of the South Australian Supreme Court explained “[t]he duty of disclosure is owed to the court and not to the defendant” – adding “[a]lthough the defendant is the beneficiary of the duty”. (Emphasis added) R v Keogh (No 2)  SASC 180 at 
It is well accepted that the duty extends beyond the trial into both the appeal and the post-appeal periods.
In order to fulfil that duty the prosecutor (with the consent of the appellant’s counsel, of course) should apply to the CCA to re-convene to hear further submissions.
The prosecutor and defence counsel should then make a similar submission to that of Mr Sonnet in the Farah Jama case and the court should of course respond in the same manner by setting aside the conviction.
I do appreciate of course that this procedure would be ‘unusual’ – but so is the case in question.
When we first suggested that the rules governing the appeal courts in all states and territories in Australia, along with those of the High Court and the statutory petition procedure infringed basic human rights principles, the claim was met with incredulity. Those rules had been in force for over 100 years and in all that time nobody had ever complained about their legal and moral force.
However, the Australian Human Rights Commission agreed with our claim and informed the parliament in South Australia of their view. That then led to the unanimous alteration of the law by the SA parliament by establishing the new right of appeal. Your parliament in Tasmania, and the parliament in Victoria also unanimously adopted similar provisions.
At the end of the day the guiding principle must be the pursuit of justice and whenever there has been a manifest miscarriage of justice it is incumbent upon every one of us to do all we can to correct it. I have always taken the view that when procedural provisions and justice collide, the procedure must be altered to attain a just outcome.
In this case, whilst the procedure is unusual, the guiding principles are not – the duty to ensure that the appeal court is correctly and fully informed of the true position is both a legal and moral necessity, and of course the public would expect that to be so.
I do hope that the parliament of Tasmania can request such a review by the DPP and the FSC to ensure that justice is done.