A key piece of criminal justice infrastructure is missing

Professor David Hamer and Dr Andrew Dyer from Sydney Law School explain why Kathleen Folbigg’s pardon points to the need for a Criminal Cases Review Commission (CCRC) in Australia. 

It’s a primary goal of the criminal justice system to avoid the searing injustice of a wrongful conviction. This goal is pursued through principles such as the presumption of innocence and the requirement of proof beyond reasonable doubt.

But absolute certainty in guilt isn’t feasible and isn’t required. A risk of error is run and occasional errors should be expected. They will not necessarily be corrected on appeal, where the defendant is no longer presumed innocent and weight is given to the “finality principle”. This means the jury verdict is ordinarily considered final, for the sake of efficiency and to provide the parties and society with closure.

Following an unsuccessful appeal, the finality principle bites still harder and it becomes significantly more difficult for the wrongly convicted defendant to achieve justice. The imprisoned defendant will face an almost insurmountable challenge in persuading the government (or, in some jurisdictions, court) to order an inquiry or an exceptional subsequent appeal. In order to achieve justice, defendants like Folbigg, Roberts, Keogh and Eastman require remarkable resilience, as well as supporters on the outside.

The criminal justice system needs to do more to address the statistical certainty of the occasional wrongful conviction. Overcoming this injustice shouldn’t demand superhuman reserves of fortitude, or the chance arrival of a champion.

The systemic risk of wrongful conviction demands a systemic solution.

Other developed nations have recognised that CCRCs are well-suited to this task, including England and Wales, Scotland, New Zealand, and Canada. Australia should follow in this path.

The extent of the change can be carefully calibrated through the design of the CCRC. The CCRC is a gatekeeper, and legislation can determine how widely the gate is opened.

The call for this key piece of criminal justice infrastructure isn’t new. The Australian Law Council expressed support for a federal CCRC in 2012. Commentators have called for an Australian CCRC on many occasions.

Last year former High Court Justice, Michael Kirby, reiterated his view that “such a commission is needed”. And the Sydney Institute of Criminology is currently calling on governments to take steps to establish an Australian CCRC.

Cases like Folbigg’s demonstrate that this reform is urgently required.

  • This is an excerpt from the article “Australia needs a dedicated body for wrongful convictions’ published on the University of Sydney, June 6, 2023

Professor David Hamer is an expert in evidence law, with a special interest in the way criminal courts deal with evidence in determining whether to convict or acquit defendants. Dr Andrew Dyer is a Senior Lecturer in the Sydney Institute of Criminology, where he researches the intersection between criminal law and human rights law.

This entry was posted in Case 17 Kathleen Folbigg, CCRC, General articles. Bookmark the permalink.

25 Responses to A key piece of criminal justice infrastructure is missing

  1. Owen allen says:

    What chance have we, if plebs cannot agree. They; know what is instore internationally, the New World Order, One World Government; Bilderburg Group,
    etc, I am so happy watching it all unfold. Jesus will return soon.

    • Father Ted Whalensky says:

      Sometimes I’m sure there is a Red under my bed – my wife assures me – the milkman is NOT a communist –

  2. Jerry Fitzsimmons says:

    From a read of all the replies to this article Andrew, who are we to believe if those in a position of power think only of themselves if that ‘power’ they have gained, in whatever way, is at risk of being taken away!
    ‘Ted’ makes some very good points and a reading of his reference to “The Westminster Commission Report” provides food for thought.
    It’s also why having access to “wrongfulconvictionsreport.org” is so beneficial for anyone who sincerely believes that such things occur, which they do all far too often.
    One of the greatest problems in life is that unless such ‘wrongdoings’ affect you personally then the knowledge of such a commissioned report and its recommendations will scarcely enter your daily life. Thanks Ted.
    I still believe though that although a CCRC is maybe ‘a necessary evil’ to some, it is better than not having one because those who may corrupt it may one day want to be the benefactors of it.
    We do not live in a perfect world however a CCRC could as well as recommending for further reviews of wrongful convictions could also be a recognised body for review of those responsible for the ‘wrongful conviction’ being prosecuted in the first place. This would certainly make anyone ‘corrupting evidence’ think twice about their ‘presumptions of guilt’ and possibly move towards cleaning up the justice system once and for all

  3. Father Ted Whalensky says:

    The All Party Parliamentary Group On Miscarriages of Justice – Commissioned
    An Inquiry into the CCRC- Known as The Westminster Commission – concerns that the CCRC had been nobbled by —Horror of Horrors — Unlawful Government Interference ! Personally I’m not even slightly surprised – So- stick that one in ya pipe and smoke it – Looks as though youse might have to do some research (reading) If a CCRC starts to interfere with the Judicial Ricebowl – stand back !

  4. Owen allen says:

    Keep it up folks. I actually felt a spark of anger, instead of a walking dead man.
    Make me angry again, anger is good, controlled anger is a great passion; I need anger and adrenaline, but not meth. Thank you John and Whalensky, and Poppa I feel for you, I know how it all works. Just look around us now with all this woke crap.

  5. Father Ted Whalensky says:

    PLEB – a common vulgar person – Wholly Tasmanian Salmonella !! I’m a pleb too – as well ! A foul mouthed Hooligan – with a hatred for the imprisonment of innocent children – would you like the names of some nice vermin who worked in Guvment childcare ? Way below pleb level – the types that imprisoned SNF SUE – then kept her imprisoned – when every decent pleb became fully aware of the Police and DPP Misconduct – and the Judge – say no mire . Do you really think the Tasmaniac Policeymens would hand over the blue cloth to a CCRC sleuth ? Pigs would fly !

    • Owen allen says:

      Do your research properly Brother, I ain’t vulgar, but I could be.

    • Owen allen says:

      Sorry to say, you sound like a naysayer. CCRC investigates with out prejudice with justice as the aim. Corrupt cops, fuck off, corrupt police force, have a royal commission. The cowards admit the police force is too corrupt to do anything about. So they don’t. They are scared of murder and family skeletons. In Tasmania the police are like the old KGB and Gestapo, they keep tabs on eveyone. Not hard in Tasmania. The Premier that could do something and should have, handed documentsvvto the police and ran off to Singapore. This ain’t over, till its over. When you least expect it, expect it. Like a catastrosphic deep sea mini submarine pressure implosion.

  6. John S says:

    It’s not just the ‘educated’ we need to appeal to, most of these cases are over-seen by the (over) educated. It’s dedicated individuals like ourselves who need to break through the apathy and indifference of these bent bureaucrats who make these appalling errors of judgment.

    The world is full of educated fools who do nothing for the good of the world other than pontificate and procrastinate. It’s the persistent that prevail and win the day.

    Winners never quit, quitters never win.

    Also, we need persons learned in basic psychology and human behavior, not simply law, involved in all cases, particularly circumstantial cases – which are all about: “if it looks bad it is bad”. As we know, not all is ever as it seems, there is fools’ gold (iron pyrites) for those unwise enough to fall for it.

    When even a simple magic trick can fool experts like Penn & Teller, we need to get the message through to the ‘educated’ that they’re plain wrong at times ’cause seeing isn’t always believing!

    • Father Ted Whalensky says:

      Occasional Errors should be expected – the jury verdict is ordinary considered final for the sake of efficiency and to provide the parties and society with closure – Sounds like the Minutes from the Wansee Conference. The Final Solution – There ya go – youse can all get rooted ! There were many an ambitions Judge at That Shindig – Those with Cockeyed Optimism – “kumbaya”- about an Australian CCRC should read the Pommy buke – recently published- with essays from some of Britain’s leading Lawyers and Academics – claims that the CCRC is not the solution to the Wrongful Conviction of the Innocent . 12,000 + applicants – 470 sent back – Derek Bromley done over again – If the Appeals Court consisted of 12 decent citizens – Derek would be out in the Judges Car park choosing a Mercedes – few million in his carpet bag !

      • John S says:

        Exactly, many benefit from the status quo, why would they want to change it? So we need to keep making it harder for them to keep it good for them. Take away their benefits & impose greater scrutiny (name & shame) & insist upon actions that punish wrong doers in high office (I like stiff financial penalties – nothing like hitting their pockets to make them wince. A bit like taking away proceeds of crime). Further: they should be made to personally pay their victims for loses, perhaps from their superannuation!

    • Owen allen says:

      Where are they John, without being sceptical. Eve Ash petition after at least 2 prime time docos about Sue Neill-Fraser didnt make 30,000 sigs, where is the media out cry against Tasmanian Corruption and Injustice.
      I tell you why; the media were silenced over the Port Arthur Massacre, they know the truth has been silenced, they know how corrupt and protected Tasmania is, they are afraid to speak out, where are people in Australia with guts, like the French Resistance in World War 2.
      Some contribute to WC and are involved, but very few, very very few.
      What do I have to do, to bring on change?

      • John S says:

        There are many of us around, but as you know we’re distracted by other things less important like: sport, Fake Book, reality TV, etc.

        Though I don’t think there’s a deliberate dumbing down of us, the govt clearly has an interest in NOT informing us of all the facts.

        It’s a case of don’t look here, look at the [sport, etc]. Bread & circuses!

        But we won’t be distracted! The truth is right here as plain as the nose on our faces: we’re being lied to! Maintain the vigilance & keep reminding our shirkative leaders & public officials of their obligations to all of us!

  7. Tabitha says:

    If Folbigg is circumstantial then accused serial killer UK neonatal nurse Letby’s case is circumstantial is circumstantial. If Folbigg’s diaries are the rantings of a grieving woman then Letby’s diaries are the ranting of a grieving woman. Both cases circumstantial. You’re about to see Letby be convicted by a jury in the UK though. No hard autopsy proof she killed any of the babies.


    • John S says:

      Exactly: a very imperfect (unscientific) system run by educated fooligans! It’s all about “if it looks bad, it is bad”, like a witch hunt!

      Trials should be conducted by scientists, not judges & lawyers alone, and in fact the alleged persons concerned should not have any of their particulars available to judges &/or juries (no images, voices, names even) to make it truly blind (like the way is implied with the woman holding scales with blindfold above many courts). As if! Perhaps even AI could do better in judging cases!

      • Robert Greenshields says:

        That’s an interesting concept John; I can’t imagine it working successfully within courts operational in the Oxley Area Command of NSW though.
        I believe that the visual leverage of large numbers of the uniformly attired to impress upon the community, along with easily influenced, and or manipulated judicial officers, is and has been a long term practice.
        How else does a statement by a well respected lawyer, “you won’t win here (Gunnedah), but you will win elsewhere “, have validity?
        Oz is in a pathetic predicament when it comes to our parliamentary governance, judicary, and policing. But having stated that, there seems to be a distinct alteration in reporting nationally more recently, that is transparently exposing the cultures of criminality among the many cowards who wrongfully hold, or have held, positions of responsibility within our disgraced policing services.

        • Karsten Spoth says:

          Well thought out answer. Can’t see it being done the way I suggest (bit like the way The Voice TV show listens to contests BEFRORE they see them) any time soon, but wouldn’t it be a game changer!

          Poor governance is one of my pet hates! Read The Lucky Country and you’ll see that things were much the same years ago too (sadly)! It’s up there with outright corruption as to why we can’t make a fist o fit here in Oz. We have more dollars than sense thanks to China buying up all our stuff, but dollars are no good in the wrong hands! So we can’t buy brains of course!

          But if we keep chipping away at it (I saw my local MP to complain about the cost of corruption here in Vic – no answer back yet), sooner or later we’ll break the ice! Never give up! Never depair! We can change at times, remember when we looked the other way at drink drivers? Not now. Same here.

  8. Poppa Maddo says:

    I daily carry in my thoughts the constant reminder “One wrongful conviction IS ONE TOO MANY and an anathema and affrontto to society’s expectation that moral and ethical standards of the kind to deliver up TRUTH in the final outcome will be the ONLY goal sought by our English Adversarial Justice System and its cohort members.

    This due to my sad bad experience with the case brought against my son,for which he was deemed GUILTY by a Jury plied with Prosecutorial sophistry, legalese,innuendo,allegation, ASS-umption and ZERO PROOF.
    My Son maintains it was a case of “False Allegations of historical sexual abuse.”
    My 6yrs of Forensic investigation against that of the 4 weeks the “Investigating Police” gave to it, turned up such a plethora of FACTUAL CONTRADICTORY EVIDENCE, I had no option but to adopt a self convition of mind that my grand-daughter Complainant was either collusively coerced into her Allegation or has severe mental issues of the Personality Disorder kind.
    IMHO Australia needs a CCRC in every State, each being able to share relevant Case dat with them all being operationally completely independant from The Judiciary.
    For means tested Govt.Funding to be available to all Applicants who are deemed to qualify for Case Review by the CCRC Panel, and for Forensic Investigator/s to be part of the each team.
    As deprecating demeaning Govt.Legal Aid have been heard by me to flippantly say.. .
    “Time is of the essence!”
    Well so is this!
    And as vocal Trade Unionists have long demanded….
    “When do we want it?….NOW!”

    • Father Ted Whalensky says:

      Means Tested Government Funding Available To All Applicants -Deemed by Whomsoever-The South Australian or Tasmanian Political Attorney Generals ? Maybe the DPPs ? That’s NOT how a CCRC works – When Derek Bromley / SNF Sue is done over with the main helper being a State Appointed Forensics Halfwitt – Then the CCRC swings into Action – Not so much for the individual – but for the sake of Society – To insure (in these cases) that Citizens are not done over by the Power Drunk SCOUNDRELS – The CCRC is funded in a completely independent manner – unless of course Our Dear Leaders find them an annoyance – In which case they are screwed down into irrelevancy – as some say has happened in Dear Old Blighty – Poppa- your daily thoughts and about the Importance of Justice – Moral and Ethical Standards expected by a Democratic Society – A CCRC – Untouchable like the FBI – Our Australian Federal CCRC director ( when not cross dressing) could keep Tabs on Our Dear Leaders Shenanigans – And they sure got a few ! At least our Dear Leaders would have to be extremely careful with ideas – funding and staff cuts – Nice Mercedes- house in the National Park- the usual perks !

  9. Brian Johnston says:

    What about a Tedeschi Review Commission for gaoling all those innocent people.

    • John S says:

      Can of worms, wonder if we’ll ever get a proper outcome from that! It should be extended to cover more than just Higgins/Lehrmann case (all cases Drumgold had a hand in), if not all DPPs!

      A proper ending for that should involve very stiff penalties! As if!

  10. Owen allen says:

    Great work by all. We need on going pressure from the educated, the upper echelon; we wait with bated breath for acknowledgement by those who can make it happen. In the meantime, we expect the worse; no acknowledgement, ignored; so we plan a strategy to utilise the plebs; no offence intended, I am a pleb, on a mission; We, Never Give Up, We can do this, Australia is lagging behind Worlds Best Practice.

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