Andrew L. Urban.
Following two unsuccessful appeals against her conviction for the 2009 murder of her partner Bob Chappell and twice refused leave to appeal to the High Court, Sue Neill-Fraser’s controversial 12 year old conviction is an ideal matter for consideration by a body such as a Criminal Cases Review Commission. And it is not the only case that could seek correction around Australia.
Like other wrongful convictions that have withstood several attempts to be corrected (eg Lindy Chamberlain), the failure of appeals in the Neill-Fraser case has been due not to the robust case against her but the weakness or shortcomings of the appeals that were put to the courts. As Bob Moles and Bibi Sangha put it in their newest briefing paper supporting a national Criminal Cases Review Commission, “her appeals have been unsuccessful despite egregious and fundamental errors having occurred at her trial.” In short, the appeals failed not because the conviction is safe but because of shortcomings exhibited by a) the appeals and b) the appeal judges. (Excluding Justice Estcourt, whose dissenting decision in the 2021 appeal shows up the weaknesses of the decisions by his fellow judges on the appeal bench to dismiss the appeal.) The criminal appellate system is in need of reform, as many agree, including former High Court judge Michael Kirby.
As their latest briefing points out, “the new appeal right (in several states), although welcome, still fails to comply with the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the ‘rule of law’ provisions. The requirement for a ‘higher hurdle’ to access the appeal court for a second or further appeal is in breach of the requirements that people should be treated ‘equally’ before the law, and it also, as we explained, operates to perpetuate injustice.”
And as Michael Kirby has observed, “a new right of appeal without any capacity to investigate potentially delinquent cases is only a pyrrhic victory. Without access to transcripts, any ability to consult with expert forensic experts or to obtain legal advice, the chances of identifying wrongful convictions are almost eliminated.”
Sue Neill-Fraser was released on parole on October 4, 2022, after serving 13 years in jail (of her 23 year sentence). But she, and her family, remain determined to clear her name. The Tasmanian Attorney-General could launch an independent inquiry into her case, as thousands of people are urging. But the A-G has ignored a dozen previous calls for such a review over the years, many from legal professionals. Given that no reason has ever emerged for such refusal in the face of insistent calls, we can only speculate that the fear of a review is based on the knowledge that any such review will bring to light the many reasons why it is necessary – and seriously embarrass the entire politico-legal establishment. There is also the fear of a large compensation payout when the appeal court quashes the conviction.
“it would be quite simple”
If Australia had a CCRC structure in place as envisaged by Moles and Sangha for example, Neill-Fraser’s legal representatives could make their own application to it for a review, as they explain in their latest briefing:
“It would be quite simple to incorporate a single body in Australia called a Criminal Cases Review Commission. Each state and territory could then legislate to grant powers to that CCRC, to conduct reviews of alleged wrongful conviction cases on its behalf, in accordance with criteria agreed with all participating states and territories. Upon completion of reviews giving rise to possible wrongful convictions, the CCRC could refer the case to the relevant state or territory appeal court.
“Alternatively, the lawyers acting for the party or parties could themselves apply for leave to appeal under the legislation allowing for second or further appeals with the support of a report from the CCRC. The main role of the CCRC would be the ability to exercise powers to access documents and materials held by any public or private body (such as police or forensic science centres or prosecution departments) to ascertain if relevant materials have been withheld, or tests have not been properly conducted, for example.”
In other words, the CCRC would itself conduct the equivalent of a review of the case in question – and if found deserving of another appeal, refer the case to the relevant appeal court. (In the case of Sue Neill-Fraser, a CCRC investigation would discover a whole menu of appealable errors.)
Of course, the proposed national CCRC would require (preferably all) states to agree its functionality viz their jurisdiction. It would let politicians off the decision-making hook in some controversial instances ….while one or two states may baulk at that, nervous about the outcomes … but they would have to explain their refusal to cooperate with the scheme, which in ideal circumstances would be championed by the Federal A-G … one who stands for reform! (The criminal justice system doesn’t seem willing to reform itself …)
Moles & Sangha point out that “the main body of criminal law in Australia is legislated and administered by each state and territory. To have a separate review commission for each of them would unnecessarily duplicate administration costs, and inevitably lead to fragmentation with part-time commissioners and investigators. It would also lead to a lack of independence as the review officials would depend upon the state or territory government to continue their contracts.
“A single body providing experienced staff to support multiple states and territories, will develop the specialist and collective body of knowledge and experience to provide an efficient, independent and cost-effective service. If the money currently spent on ad-hoc commissions and inquiries were to be diverted to a proper full-time professional investigative and referral agency with appropriate powers, the time, cost and effectiveness of reviewing cases could be substantially enhanced.
“For example, the inquiry into David Eastman’s wrongful conviction in the ACT cost over $8m with another $6m spent on a retrial which led to a speedy acquittal. The first inquiry into the conviction of Kathleen Folbigg cost well over $2m, sat for 11 months and resulted in a 450 page report which failed to apply basic principles governing criminal appeals. The second inquiry appears to be heading in the same direction. Both inquiries have failed to consider that their role is merely to determine if leave to appeal should be granted. [See the discussion by Bob Moles of this issue in the Mothers Guilt podcast]”
* Dr Robert Moles and Ms Bibi Sangha, Networked Knowledge; Adjunct Associate Professors, College of Business Government and Law, Flinders University.