As things stand, politicians burdened with the responsibilities of Attorney-General often face the impossible choice of advising the relevant Governor on petitions from innocents convicted of sexual abuse. It should not be their choice; legal matters should stay within the realm of the administration of the law, not politics, argues ANDREW L. URBAN.
A middle aged man, without a single other legal blemish, convicted of historical sexual abuse of a young girl in his family, 22 years before, believes he could prove his innocence if the NSW Attorney General advised the Governor to act on his petition and referred his case for a judicial review – as it was the case of Kathleen Folbigg, convicted of murdering her children. But he has been refused and given no reason. He has served his prison sentence, his wife continues to support him and his 76 page petition was prepared pro bono by a lawyer outraged at the many flaws that led to the conviction and failed appeal.
When Paul followed up on his petition with his local member three years after it was lodged, the Attorney General replied to the local member: “I confirm that the Governor, on the advice of the Executive Council, has declined to take action in relation to the petition.” No reason was forthcoming.
In 2019, the man (let’s call him Paul) wrote to NSW Attorney General then the Hon Mark Speakman as follows:
“You will understand that I feel strongly that I, too, deserve justice. I note that although Ms Folbigg’s petition was submitted three years ago, it wasn’t until just nine days after an investigation into Ms Folbigg’s case was broadcast by the ABC’s Australian Story, (10 August, 2018), that you announced as follows:
“I have formed the view that an inquiry into Ms Folbigg’s convictions is necessary to ensure public confidence in the administration of justice. Today’s decision is not based on any assessment of Ms Folbigg’s guilt.
“The petition appears to raise a doubt or question …
Paul wrote: “I ask for equal access to a review. My petition also raises very serious doubts – on several issues. The very same sentiments would apply in my case…
“I do not ask you to form a view as to my innocence, only to permit a proper review of my conviction…
“My life has been decimated, my family has been hurt and my confidence in our justice system has been badly damaged …”
This one duty (advising the Governor on petitions) is exempted from the concept of separation of powers, intended to safeguard politicians interfering in legal matters. But refusing to process a petition for mercy (a last resort) is effectively interfering in a legal matter.
If judges are obliged to detail their reasons for decisions, Attorneys-General should also be so obliged. A conviction of sexual abuse of a minor is “a life destroying crime,” as one of his friends puts it, and “the State must be vigilant to the opportunity for Paul to clear his name.”
Paul says “I want real victims protected, real offenders prosecuted and no more political outcomes to satisfy a public which are conditioned to believe all claims of this nature.” In prison, Paul met other men in similar situations. So has Noel Greenaway, 85, convicted of 18 instances of sexual abuse against five youngsters, now middle aged women. They all stated that they had never spoken of their abuse to anyone – until the Royal Commission into Institutional Responses to Child Sexual Abuse started in 2013. Greenaway is serving a 20 year prison sentence.
As this blog has often argued, a national network of Criminal Cases Review Commission would not only absolve Attorneys-General of tough choices about politically sensitive petitions concerning sexual abuse convictions, it would also serve the interests of justice. Claimants whose appeal has failed, such as Paul (and Noel) would access the CCRC in their respective states, which would assess these claims for a review and if found to have merit, refer their cases to the Appeals Court (in the relevant state jurisdiction).
Readers may ask, why are State Attorneys-General not urging for this reform?