“The lawyer who may knock over one of the worst miscarriages of justice in Australia may not even need to be a criminal lawyer… just a basic understanding of civil procedure may be all that is necessary.” Flinders University legal academic DR BOB MOLES examines a simpler way to overturn wrongful convictions in the Colin Manock scandal. “And when that is successful, it will lead to the overturning of another 400 similar and very important cases. In addition to a class action for another 10,000 cases.”
In December 2023 three of the five judges in the High Court refused Derek Bromley’s application for leave to appeal. The other two judges in their dissenting judgment stated: leave to appeal should be granted; it should be determined that there had been a substantial miscarriage of justice; the conviction should be overturned; a verdict of acquittal should be entered so there could be no further retrial.
A refusal of leave means that the jurisdiction of the court has not been engaged.
A conviction requires guilt to be established ‘beyond a reasonable doubt’. One might think that a determination by two judges of Australia’s highest court to state that there has been ‘a substantial miscarriage of justice’ would constitute a ‘reasonable doubt’.
Instead of initiating a fresh appeal under the new right of appeal, as Bromley is entitled to do, we suggest that it would be far simpler to bring a fresh action based upon the fact that his conviction was obtained by fraud. We have published chapters on this issue in each of our two previous textbooks and in the Australian Bar Review. The key points to that action are as follows:
The courts state that ‘fraud unravels everything’.
Certiorari: the quashing or setting aside of a judgment of a court is the appropriate remedy. It is not an appeal.
The action is commenced by an originating summons in the civil jurisdiction of the court – even when dealing with a criminal conviction. The standard of proof is on the balance of probabilities or a significant possibility. It can be filed without leave in the Supreme Court and be heard by a single judge.
The duty of disclosure can be a key issue in determining if fraud has occurred. Concealing or failing to disclose evidence as to the credibility or competence of a witness may amount to a fraudulent misrepresentation as to their honesty and skill. It may constitute perjury and involve conspiracy and subornation of perjury.
Suppression of the truth has the same effect as putting forward a falsity and may distort the process leading to a conviction.
The duty of disclosure is ‘to the court’ not to the defendant, although the defendant will clearly have the benefit of any such disclosure.
This is an extract from a briefing paper by Dr Moles.