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.
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
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?