Andrew L. Urban
Excuse my headline, but it’s a translation from legal language. Even among legal academics and former High Court justices, there is great unease about how our already imperfect legal system turns positively negative at the thought of being questioned. Why else make appeals nigh-impossible? The system prefers the legal certainty of finality to substantive justice by correcting wrongful convictions.
If you are wrongfully convicted of a serious crime and sentenced to prison for years, you (and your loved ones) would want the legal system to provide a rapid pathway (you wish!) to an appeal. And if that fails, as it too often does, to a further appeal. Such an appeal currently requires ‘fresh and compelling’ evidence to even get into the courtroom.
This is always a frustrating issue, but it is given timely relevance ahead of the debate in the Tasmanian Legislative Council over a motion to establish an independent inquiry into the long-running justice wound that is the Sue Neill-Fraser case. (The debate was scheduled for March 24 but has now been deferred. The motion remained on the notice paper to be debated at a future sitting date of the Council, which had not yet been publicly fixed.) Her two previous appeals were unsuccessful and the High Court refused to grant her leave to appeal. (‘Shut up and stop bothering us.’)
Meanwhile, some observers argue that an inquiry would be a better path … although the Tasmanian Parliament, through the Attorney-General, has consistently rebuffed calls for an inquiry. (EXAMPLE) Meanwhile, the Tasmanian legal establishment has consistently rebuffed her appeals.
Most Australian jurisdictions now allow a second or subsequent appeal against conviction but only where there is “fresh and compelling evidence” and a substantial miscarriage of justice. (Do we know of a miscarriage of justice that is not substantial?) This threshold was introduced progressively (starting with South Australia in 2013 and later adopted elsewhere) as a tightly limited “gateway” to further appeals.
Supporters argue that the high bar (‘fresh and compelling’) protects the finality and integrity of criminal verdicts. (If only they could all be guaranteed to have integrity.) But as Graham Zellick, CBE, QC, Chair of the Criminal Cases Review Commission in the UK has said: “There is no principle of finality. If it is thought that a mistake may have been made, the public interest demands that it be put right … the principle of finality has no place in the criminal law, not in our system.”
Critics argue the threshold is too restrictive and risks preserving wrongful convictions. Because of this, requiring evidence to be legally “fresh” can exclude material that clearly undermines the conviction.
Former High Court judge Michael Kirby has been one of the strongest judicial critics of restrictive appeal rules. He repeatedly warned that the justice system prioritises finality of verdicts over correcting error. Kirby has argued Australia is “limping behind” countries such as the UK, Canada and New Zealand in providing mechanisms to correct miscarriages of justice. For that reason he strongly supports both second-appeal provisions, and an independent review body similar to the UK’s Criminal Cases Review Commission.
Australian legal scholars Bibi Sangha, Robert Moles and others have criticised the test as overly restrictive. They argue that the “freshness” requirement is unrealistic. The evidence must not only be persuasive but also not reasonably discoverable at trial.This creates problems because many wrongful convictions arise from evidence that existed but was misunderstood or suppressed (undisclosed).
The rule may exclude compelling evidence because it was theoretically discoverable earlier.
And most importantly, structural errors rarely produce “fresh evidence”. We know that wrongful convictions often arise from unreliable forensic science, non-disclosure by police or prosecutors or ineffective defence representation.
These problems may not produce any new evidence, even though the conviction is unsafe.
Not surprisingly, it is those ‘at the coalface’ of justice who know the practical problems best. Innocence projects and the like, and some media interested in wrongful convictions, note that most wrongful-conviction claims involve investigative errors, disclosure failures or poor defence representation (all of these in the Sue Neill-Fraser case, for example), and that these problems often do not generate “fresh evidence”, meaning the gateway test blocks the review. ‘Case closed.’