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.’
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The author investigates the circumstances that led to the trial and conviction of child welfare officer Frank Valentine on charges of historical sexual and physical abuse at the Parramatta Training School for Girls decades earlier. It is his fifth book exposing what he considers to be unsafe convictions.
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When “Fresh and Compelling” Ignores the Obvious: The Problem Isn’t Always New Evidence
Andrew Urban’s blunt translation of the legal system’s response to appeals “case closed, stop bothering us” may sound provocative, but it captures a growing unease within legal circles. The real problem, however, is not just that appeals are difficult. It is that the system often fails to recognise what is already in front of it.
The requirement for “fresh and compelling” evidence assumes that miscarriages of justice are corrected by the discovery of something new. In practice, many are exposed not by new evidence, but by the proper examination of existing material that was mishandled, misunderstood, or simply ignored.
This distinction matters.
Consider a scenario where a key prosecution witness provides multiple inconsistent accounts: timelines that are objectively impossible, descriptions of physical evidence that change over time, and statements that contradict both documentary records and other witnesses. Bugger me if that don’t be sounding like my case!
Add to that undisclosed or undocumented investigative activity such as a covertly recorded interaction that never finds its way into the formal investigation record and the issue is no longer about whether new evidence exists. The issue is whether the original evidence was ever properly tested at all.
Yet under current appeal frameworks, such problems often struggle to meet the “freshness” threshold.
If the contradictions were technically available at trial, even if not properly explored, they may be dismissed as not “fresh”. If investigative irregularities are later identified through careful reconstruction of the record, they may still fail the test because they do not constitute newly created evidence. And if oversight bodies review a matter without access to all relevant material, their conclusions may reinforce the illusion that the system has already worked as intended.
The result is a procedural paradox: the more a miscarriage of justice is rooted in systemic or investigative failure, the less likely it is to qualify for appeal.
This is precisely the concern raised by critics such as Michael Kirby, who has long argued that the system places undue weight on finality over correctness. It also reflects the observations of scholars who note that wrongful convictions frequently arise from non-disclosure, flawed forensic interpretation, or unreliable witnesses issues that rarely produce “fresh” evidence, but often leave a clear trail of inconsistency and error.
Internationally, jurisdictions such as the United Kingdom have moved toward models that recognise this reality. The Criminal Cases Review Commission does not confine itself to the narrow question of whether evidence is technically “fresh”, but whether there is a real possibility that the conviction is unsafe. That is a fundamentally different inquiry.
In Australia, by contrast, the legal test can operate as a filter that excludes precisely the cases most in need of review.
The emphasis on finality is often justified as necessary to preserve confidence in the justice system. But confidence is not maintained by closing the door on legitimate questions. It is maintained by demonstrating a willingness to confront error particularly where that error arises not from a single mistake, but from a pattern of inconsistencies, omissions, and unexamined assumptions.
The uncomfortable truth is that wrongful convictions are rarely neat. They do not arrive packaged with a single decisive piece of new evidence. More often, they emerge from a gradual accumulation of doubt, built from contradictions that were overlooked, evidence that was never properly scrutinised, and investigative steps that were not transparently recorded.
A system that demands something “fresh” before it is willing to look again risks missing the point entirely. Because sometimes, the problem is not the absence of new evidence.
It is the failure to properly confront the evidence that was there all along.
We desperately need a ccrc
My partner has been wrongfully convicted and lost his appeal on cicumstantial evidence in a coldcase where another suspect wasnt even asked where he was on the night and also his Dna on her body, where they didnt charge him back in 2007 as not enough evidence and yet in 2021 no new evidence and a jury found him guilty.
I also believe juries should be recorded to make sure they are doing there job correctly.
It is absolutely devasting when there are no more paths to turn to ,my partner will die in prison or if he makes it out will then be deported for something he didnt do.
Keep up the great work Andrew. I’m glad someone doesn’t mind getting down amongst the swill that is the Oz “legal system” because all I can think of when the topic comes up is the Shakespearean line from King Henry VI: “The first thing we do is, let’s kill all the lawyers.”
The observation made by Charles Dickens in Bleak House also sticks in the craw.
““The one great principle of the English law is to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense and surely they will cease to grumble.”
And if there’s any collateral damage, ie wrongful convictions, tough titties.