Andrew L. Urban.
If you could do one thing as an Attorney-General that would profoundly improve the criminal appeal system and reinforce the separation of powers … why not do it? Why haven’t they done it? Will they do it?
An elderly man sits with a notepad on his knees in a maximum security prison cell in central NSW, writing his challenge to his convictions of historic sexual abuse. He’ll be over 90 before he’s eligible for parole. His appeal was dismissed and the High Court refused him leave to appeal. As one door closed, another slammed in his face. His writings will only be read by family and friends. (And me.)
A grandmother in Hobart has been released on parole after over 10 years in prison. She wears the tell-tale ankle bracelet that shames her as it monitors her movements. Although still officially a convicted murderer, many lawyers and barristers (as well as everyday folk, journalists and authors) who have considered the evidence (rather, the lack of it) against her, are convinced she has been wrongfully convicted. Her two appeals were dismissed and the High Court twice refused her leave to appeal. Tasmania’s current and previous Attorneys-General have been urged several times over the years to establish a Commission of Inquiry into the case. They have refused.
Neither of these have any criminal record. Indeed, both enjoy impeccable character references and were otherwise regarded as esteemed members of their families and society.
Likewise the man convicted of murdering five of his wife’s family, who endured four trials before he was convicted by a jury 11-1, after the third trial ended in a hung jury. Perhaps that’s because the evidence against him was so weak, as even a magistrate pointed out before he was tried. He spent almost five years on remand. Police didn’t charge him until two years after the deaths. There is no direct evidence, no DNA linking him to the brutal crimes and his wife confirms his alibi: he was asleep next to her in their bed the night the murders occurred. His appeal was dismissed and he is struggling to seek leave to appeal to the High Court.
Then there is a former successful Sydney businessman and philanthropist whose life has been destroyed by an accusation of sexual abuse of a teenager within his family, also historic (22 years previously).
At the appeal, the judge said “… the evidence of the Complainant … was not so persuasive as to dispel the significant doubts raised by a number of seeming implausibilities and inconsistencies…” yet he went on to refuse the appeal.
Outraged by the injustice and weakness of the case, a friendly lawyer prepared a 76 page petition detailing why the conviction is wrongful. There is evidence in the police brief that clears him, he claims, and examples of accusations about abuse taking place in a room that didn’t exist at the relevant time, among other exculpatory issues.
The Attorney-General sat on the petition for three years and refused to recommend it to the Governor General for the granting of a pardon. That was his last resort.
After almost 40 years in prison, a convicted murderer in South Australia who has always maintained his innocence (hence not being released on parole), took his failed appeal to the High Court – only to see his appeal dismissed. Why this is especially troubling is that both the appeal and the High Court’s dismissal of his appeal are arguably flawed, according to his legal team.
Two legal academics have said “It is our view that the appeal court … has fundamentally failed to pay due regard to the rule of law and to the well-established principles governing criminal appeals. The appellate function is to review the conduct of the trial to determine if appealable error has occurred. If it has, the proper procedure is to set aside the conviction, and in appropriate cases, allow for a retrial. Not to conduct that retrial before the appeal court.”
As for the High Court, its 3-2 judgement to dismiss is in many respects a very extraordinary judgement, as the judges said at the beginning of their judgement. The two dissenting judges said that leave should have been granted; that the appeal should have been allowed; that it was in fact a substantial miscarriage of justice – and they further said that the verdict of an acquittal should have been entered.
These are just five examples of the many cases around Australia where serious crimes have elicited significant penalties yet the convictions remain demonstrably wrongful and unjust … at the very least unsafe. In each case, a Criminal Cases Review Commission would be able to investigate on the applicant’s request.
WHY?
A wrongful conviction is a catastrophic failure of the justice system. The causes of wrongful convictions are spread around the entire system.
- Flawed police investigation
- Conviction-centric prosecution
- Forensic evidence use, presentation & understanding
- Judicial error
- Poor legal representation
REDUCING FAILURES
Cases like the ones cited above suffer from appeal failure (as well as trial failure). The original appeal is often either inadequately argued or poorly judged. By now short of funds, the applicant is then faced with the high cost of approaching the High Court and its narrow legal track to a hearing. It is death valley in appeal terms.
In cases where the applicant, in the wake of a failed appeal, chooses to seek a pardon from the General via the Attorney-General of the state, the matter is thrust into the political arms of a system which until then has kept the separation of powers in force. A politician is asked to pronounce on a pardon for a criminal offence, by way of recommendation to the Governor. In the case of sexual crimes, especially child sexual abuse, no politician will touch it, regardless of merit. The risk of being painted a protector of pedophiles by their political opponents (and the public) is too real – and too daunting.
Most of the elements cited above as causes or contributing factors to wrongful convictions also apply to appeals.
Many concerned citizens have joined legal practitioners and legal academics in calling for such a mechanism: a well designed national (not Federal) Criminal Cases Review Commission network, as we have respectfully argued previously to four Federal A-Gs. One example
The benefits of any CCRC are most pronounced in its role as part of the appeal process. A well designed CCRC (State or national) would enable applicants – whose appeal failed – to apply for a review of the case, without the criteria otherwise required eg fresh and compelling new evidence. Other criteria often cause miscarriages of justice. The CCRC’s investigation would disqualify cases where the CCRC finds the appeal is without merit, so trivial or misconstrued appeals would not waste the CCRC’s time and money. With its extensive powers, the CCRC would examine each case in its entirety. If it found an appeal was indeed warranted, the CCRC (under the provisions proposed by Dr Bob Moles in the June 2021 article linked above) would then send the case back to the appeal court of the relevant jurisdiction.
A couple of the legal professional bodies have shown interest, but the Attorneys-General, State or Federal, have shown no interest in exploring the establishment of a CCRC – or an equivalent – to help improve Australia’s system of justice to protect against wrongful convictions. What are A-Gs good for, if not for improving the system?
If valid argument and evidence is not enough, what will it take?
More interesting news items most recently in relation to our nations judiciary and policing practices.
The two NSW senior police practicioners found guilty in a court of assaulting an NRL player after clear video was presented as evidence confirming their lies, does raise more than just concern about the statements originally manufactured and presented as evidence. Downright criminal, dishonest, deceitful behaviour by the two officers, and most likely other officers involved also. The very fact that evidence presented without the defence video coverage, would have convicted the then accused, highlights yet again that the criminal cultures active within policing forces are still conformingly rampant, and all governments, while doing only enough to be seen to be doing a job, are obviously complicit in maintaining the cultivated crime ridden status quo.
The other news item that focused my attention was the article about a Tasmanian Supreme Court judge who is confronting two courts, one in Tasmania, and the other in NSW next month. Initially information, or the transparent flow of it I have read, was stifled through legal processes, but now the Australian community will be able to obtain a clearer view of the values and morality of a Tasmanian judge, and the type of hypocritical standards that still prevail, sadly from colonial times. (In mentioning that, I am referring to Sir Redmond Barry, the disgraced, hypocritical, Victorian judge who presided over many cases, some involving the Kelly family, who I have learned was the father of four children out of wedlock, and never married his long term concubine, kept woman, while continuing with the claimed moral values of a righteous community leader, with exemplary standards, in an era when stratification and sense of entitlement among the hierarchial predominants reigned supreme.
Nearly every day now the media is reporting upon the criminality and practices of our nations cowardly, compliant, police force members, but to read of the behaviour and charges against a Tasmanian Supreme Court judge, not only confirms my deeply held doubts about the morality of many of our legal authorities, but further cements the fact that fundamental change is definitely necessary.
If the media is not again smothered, the court cases involving the judge in Tasmania and NSW, will be more than interesting to follow. What price convictions and justice?
Although the following relates to a specific matter, I’m attempting to understand the role, function, obligations of Attorneys General.
I glean it is as quoted, “The role of the Attorney-General as chief law officer of the Crown is to execute the duty of the Crown to ensure the due administration of Parliament’s laws”
The role of the Attorney-General
Attorney-General v Barnes [2023] TASSC 2
Wood J decision 2 March 2023
EXCERPT
…
5. It can be seen that, in essence, there are two issues at stake. The first is whether the conduct of the coroner’s associate fell outside her statutory power. This is a matter of statutory interpretation. If it does, relief will turn on whether the error amounts to a jurisdictional error. The second issue is whether the exercise of her power amounts to an abuse of process.
The role of the Attorney-General
6. The role of the Attorney-General as chief law officer of the Crown is
to execute the duty of the Crown to ensure the due administration of Parliament’s laws: Solicitor-General v Wylde [1945] NSWStRp 28; (1946) 46 SR (NSW) 83, 93.
One of the most important duties attaching to the office of Attorney-General, as first law officer of the Crown, is the enforcement of public rights: R v Matterson Ex Parte Moles (No 1) (1993) TASSC 74, Underwood J (as he then was) at p 4. His Honour went on at p 5 to quote from Lord Wilberforce in Gouriet v Union of Post Office Workers [1977] UKHL 5; (1977) 3 All ER 70 at [9]: “… In terms of constitutional law, the rights of the public are vested in the Crown, and the Attorney-General enforces them as an officer of the Crown…”.
7. It was submitted that where an independent repository of public power abuses or exceeds their authority in respect of a public body, it is solely the Attorney-General’s interest and duty to seek correction by the only appropriate means available: adjudication of the matter in the Courts. It is implicit in these propositions that in such cases the Attorney-General may institute proceedings and have the role of prosecutor. The coroner’s associate is a repository of public power with respect to a public body, the coroner’s court. The question is whether in exercising that power she [referring to then A/G Archer] has abused or exceeded her authority.
I agree with Jack our legal system is open to abuse and prejudice. Under it Truth is irrelevant and all sorts of outrageous ( and often illegal ) actions are used by judges to dismiss a jury or to bamboozle them into making a wrong decision .I speak from bitter experience, but, in my case Justice was done not long after the aborted trial by Rio Tinto which punished the criminal ( a high executive ) by dismissal which was reported in the newspaper to my great glee and of my supporters. Nothing was done about the corrupt judge. I wonder how many more lives he ruined ? Yes, scrap our Criminal Legal System and replace it with the French Inquisitorial System which is used to establish the Truth, something which police, lawyers and judges do not want as it would reduce all that lovely promotion and money for them (leeches , in my opinion ).
The UK has been just as corrupt:– the disgraceful Lord Aldington v. Count Tolstoy Defamation case in which Lord Aldington used his powers to remove from the Public Record the evidence which Count Tolstoy needed to use to prove Lord Aldington a War Criminal. I read a book about it which showed item by item virtually all the evidence redacted (blanked out ! ). By removing the evidence with the support of the eminent judge, Lord Aldington was able to bankrupt Count Tolstoy . The book which Count Tolstoy wrote : “The Minister and the Massacres “is Still forbidden for sale or to be held in any library only in the UK ! I obtained my copy from the CIA Library in Washington which no longer wanted it. I gifted it to the White Russian Community.
AndBritish Justice continues with its fiction of being impartial and something to be proud of —more like Putin’s Russia in my opinion!Let’s not forget the many years Australian journalist Assange (who is not a UK citizen) has spent and continues to spend in Belmarsh, a maximum security prison , without his matter involving extradition to gaol for the rest of his life in the USA being finalised.Based on that precedent, no Australian is safe from arrest if they travel to the UK. The American journalists who reported the same facts in the newspapers as Assange have never been charged . WHY ? Answer : because they are US citizens and American Law protects Free Speech while the Albanese government is moving to gag us with its proposed ” Law of Misinformation and Disinformation “. When that happens goodbye democracy and welcome totalitarianism !
When Prosecution views the truth as an irrelevancy to be disregarded in the goal to achieve a conviction for their mates, the police, we have reached a dangerous situation which reduces the court to a superficial debate.
If the defence, is the weaker debater, pity help the person alleged to have committed a crime. Evidence is tossed aside and judges become complicit in applauding the performance theatrics of the Prosecutor.
The Law allows for reasoned judicial oversight. However, it is too frequently lacking resulting in the abuse of human rights. A national Criminal Cases Review Commission is an absolute necessity recognising that human error occurs.
Andrew there are three substantial cases which deserve your attention.
Why do you ignore them.
Schapelle Corby.
Ivan Milat.
Martin Bryant.
The Hard Evidence magazine did a lot of investigation into Corby matter.
There is evidence available on Milat matter.
Tony Pitt covered Port Arthur and Martin Bryant in his news papers.
There are many cases I have not had the time and/or information to cover. Many more than you mention. I do not have a team of researchers. There is nothing to stop interested citizens doing their own research, ferreting out the flaws and presenting evidence of wrongful convictions. The tragedy of innocent people being wrongfully convicted is not easy for mainstream media; it’s too complicated and requires slog. There are many obstacles for them, not least the same restrictions I face: lack of resources. It takes public pressure to move politicians to act where they are able, and likewise the legal fraternity.
I alway thought that if Police take a statement from a complainant , which forensically can be proven to be untrue , they are obliged to question the statement , and if there is no explanation other than perjury or collusion , they would charge t those people with signing a false sworn statement.A jailable offense.
That evidence if ignored , establishes police corruption , by ignoring exculpatory evidence. A police and DPP which allows this , has perverted the course of justice. What happens to a complainant if his or her allegations fail. Nothing it appears. ! Of for a true instrument seeking truth and acting properly to determine if a prosecution should take place or not. A review of evidence improperly given and treated is an absolute must. If a judge and or jury , can get things so wrong , perhaps a computer could be fed with all the statements all the transcript of evidence , and it could statistically determine whether the
Threshold of beyond reasonable doubt has been reached .
Pv
I think that is a good idea.
Maybe the evidence could be fed into a computer, as you say. That would be better than a Jury listening to lies of the complainants, and being influenced by the tears.
I believe it’s been well established that a significant number of cases have been fraught with inconsistencies which in themselves should have led to acquittal.
No doubt there are those locked away in Australian prisons who for one reason or another should not be there.
One can’t imagine what they must be going through on a daily basis knowing full well they are innocent, and at the same time knowing the hand of true justice has in one way or another been kept well and truly beyond their reach.
Of course we need a national Criminal Cases Review Commission as Andrew has been arguing for some time now, and although he quotes a number of high profile cases above which appear to be clear cases for such a review, we should never forget that there are potentially large numbers of such cases “out there” which do not get publicity for a number of reasons.
Perhaps the wrongfully convicted person has not completed the slow and painful process of pursuing all the appeals possible – and appeals are notoriously slow when the convicted person is reduced to using Legal Aid because it involves a lot more paperwork for the solicitor and all lawyers would prefer to be paid the going rates for their services rather than the reduced rates paid by Legal Aid.
Or perhaps, having gone through the painful appeal process without success, he/she or their family has just had enough of the fight. Or the convicted person has died [or has finally been released from prison] and the family just wants to forget the whole sorry saga.
Whatever the reason, it seems to me that wrongful convictions are increasing as a result of the many historic sexual abuse complaints by people who claim abuse from 40 or 50 years previously when they were minors. Often they were very difficult minors who ended up in juvenile delinquent facilities.
No one denies that there were many cases of child sexual abuse and even one such case is one too many, but as I have indicated in a previous comment, the wrongful allegation rate in these cases seems to be about 30% – 40% and as most of these [usually men] are convicted because of the prevailing ideology to ALWAYS believe the complainants, something that has been underscored by Apologies from Prime Ministers and Premiers, that represents a significant number of potential/probable wrongful convictions.
It has been said to me by a former prison chaplain, that amongst imprisoned men complainants [former delinquents], there is a phrase known as “prisoners’ superannuation”. Now that is certainly a concept to think about.
What is wrong with our Attorneys-General? Do they not have the skills, or is it that they lack the courage?
Cases like the ones cited above suffer from appeal failure (as well as trial failure). The original appeal is often either inadequately argued or poorly judged. By now short of funds, the applicant is then faced with the high cost of approaching the High Court and its narrow legal track to a hearing. It is death valley in appeal terms.
Now, the Federal (Family) Court will sanction, presumably, the “death valley” mentioned. But, but, the Police will deal with it.
It’s time to hang all the lawyers, judges and magistrates.
This is the end result of the adversarial legal rort we now endure. Truth is incidental, winning the case is all.
We need to adopt the French inquisitorial system, whereby the search for truth is all.
It is high time that the Attorney General overturnsa y of these wrong convictions and puts procedures in place in police and judicial system so that crimes are more fairly and thoroughly investigated. Take for instance the case of Sue Neil Fraser. The police investigation was biased and sloppy. The police were gunning for Sue Neil Fraser. They didn’t even consider other suspects. The terrible thing is it’s common knowledge who prime suspects are in this crime, one witness has admitted what happened. Yet the police and courts refused to do anything about ot. Disgusting.
Oh Christine! The police did do something about it! They picked up Meaghan Vass on the street, took her back to whats-his-name … put out a press release saying she had retracted her claim of having been on the boat … (later discredited by the prosecutor who handled Vass’s court appearance for the bit of dope that they found in her handbag when they picked her up).
There is quite a lot of argy-bargy (are ‘bullshit’ and ‘corruption’ more appropriate terms?) to do with SNF and Vass. And look at how Vass – after the failure of her lawyer to have her evidence kept from publication … look at how the ‘SAM DID IT’ headline destroyed her security …
[https://neill-fraser-support-group.org.au/wp-content/uploads/2021/07/Meaghan-Vass-and-the-2nd-Sue-Neill-Fraser-Appeal.pdf]
In that lengthy article of mine, you will see The Mercury ‘SAM DID IT” front page headline, you will see Vass’s horror on arriving at the court in a late taxi the next morning … in the criminal class ethic, you would think she is terrified that she will now be classed as a ‘dog’. (Look at that image, please, fellow readers … a glimpse of horror on a face.)
So in court she retreats from her evidence of the day before … agrees with whatever Coates (the DPP) puts to her … plainly wanting to reverse the entirety of her evidence of being on the Four Winds … and retreat from naming those 2/3 persons as being present with her on the yacht when Bob Chappell was murdered.
I was there in the court … the transcript doesn’t convey what was going on … Meaghan Vass was plainly trying to get out of the witness box and get out of that court … so she was saying yes to whatever Coates put to her … just to get away. She – with that ‘Sam did it’ headline had been ‘let down badly’. Coates must have known this yet took advantage of the situation – in my opinion.