Andrew L. Urban
Advocating for a review of what is arguably a wrongful murder conviction doesn’t make you soft on murder. Likewise, advocating for a review of what is arguably a wrongful sexual assault conviction doesn’t mean you support sexual abuse. These basic truths have to be reiterated in today’s supercharged & off balance atmosphere about sexual abuse crimes in particular. Reviewing both categories of crime are resisted by large sections of the legal profession. The latter is resisted by large sections of the public and all politicians. Why it matters goes to the centre of a conflict between the separation of powers and the pursuit of justice.
The separation of powers keeps politicians out of the processes of the legal system. But ironically, the one intersection between politics and the law is at the point of highest risk of injustice. Here is why.
As things stand, politicians burdened with the responsibilities of Attorney-General often face the impossible choice of advising the relevant Governor on petitions from innocents convicted of sexual abuse. It should not be their choice; legal matters should stay within the realm of the administration of the law, not politics. Fearing public backlash against the perception of being ”soft on sexual crimes”, the AGs do nothing.
A middle aged man with a history of charitable works and without a single other legal blemish, convicted of historical sexual abuse of a young girl in his family, 22 years before, believes he could prove his innocence if the NSW Attorney General advised the Governor to act on his 2015 petition and referred his case for a judicial review – as it was the case of Kathleen Folbigg, convicted of murdering her children. But he has been refused and given no reason. He has served his prison sentence, his wife continues to support him and his 76 page petition was prepared pro bono by a commercial lawyer friend outraged at the many flaws that led to the conviction and failed appeal.
When Paul (not his real name) followed up on his petition with his local member three years after it was lodged, the Attorney General replied to the local member: “I confirm that the Governor, on the advice of the Executive Council, has declined to take action in relation to the petition.” No reason was forthcoming.
In 2019, Paul wrote to NSW Attorney General then the Hon Mark Speakman:
“You will understand that I feel strongly that I, too, deserve justice. I note that although Ms Folbigg’s petition was submitted three years ago, it wasn’t until just nine days after an investigation into Ms Folbigg’s case was broadcast by the ABC’s Australian Story, (10 August, 2018), that you announced as follows:
“I have formed the view that an inquiry into Ms Folbigg’s convictions is necessary to ensure public confidence in the administration of justice. Today’s decision is not based on any assessment of Ms Folbigg’s guilt.
“The petition appears to raise a doubt or question …
Paul wrote: “I ask for equal access to a review. My petition also raises very serious doubts – on several issues. The very same sentiments would apply in my case… I do not ask you to form a view as to my innocence, only to permit a proper review of my conviction…
“My life has been decimated, my family has been hurt and my confidence in our justice system has been badly damaged …”
That letter was written six years ago. To this day, he is subject to unannounced visits by police, travel restrictions and the shame of being on the sexual offenders list. A conviction of sexual abuse of a minor is “a life destroying crime,” as one of his friends puts it, and “the State must be vigilant to the opportunity for Paul to clear his name.” The difference? Folbigg was convicted of murdering her children, Paul was convicted of sexual abuse of a minor.
The book Wrongful Allegations of Sexual and Child Abuse (Oxford University Press), edited by Ros Burnett, notes that “It is inherent in the, typically, unwitnessed and physically uncorroborated nature of these ‘hidden’ crimes that they are difficult to prosecute; but also to disprove if no crime has been committed.
“There is a special repugnance reserved for sexual and violent abuse of children, women and other vulnerable adults. These offences of physical violation and traumatising psychological degradation are so contemptible that many would refuse to be in the same room as a named child abuser or rapist; even those who support paradigms of rehabilitation and forgiveness would not trust former sex offenders to be alone with children or vulnerable adults. Such offences have become a crime so exceptional that the established rules of justice need not be applied to it, or the crimen exceptum (Larner, 1980) of modern times, arguably more so than even terrorism – on a par with witchcraft in historical Europe. They are regarded as sufficiently endemic and evil as to necessitate exceptional measures to root them out and penalise them. Other heinous crimes such as murder, do not necessarily call forth the same moral opprobrium or populist punitiveness as sexual offences.”
It should be noted that the claimant, now an adult whose accusations go back to her teen years, announced her intention to harm Paul and her own mother in a phone call, when she was finally refused more financial assistance. Among the many inconsistencies and contradictions in her evidence, she claims to have been abused in a room that didn’t exist at the time.
Another ground identified in the detailed petition refers to the judge claiming that Paul had “made admissions”. He had not.
Paul’s petition concludes with this plea:
Whilst we understand that the results of polygraph tests do not constitute admissible evidence, my wife and I are prepared to submit to official lie polygraph in support of this application.
There are so many inconsistencies and contradictions in the evidence led against me that my conviction is unsafe and I humbly petition Your Excellency to review my conviction.
My period of incarceration cannot be undone but my name can be cleared so that I can live the rest of my life without the unjust stigma of having being a convicted of child sex offences.
Paul’s story is just one example of the way justice is derailed in a system that leaves some atrocities of the law and hands the decision to review of such cases to politicians. I realise this is a big ask of our politicians and the legal profession, who would have to act jointly to bring such reforms about. Are they up to the challenge? Of course, the Attorneys General of Australia could meet this challenge by enabling the establishment of a national Criminal Cases Review Commission, which could handle requests for review of cases, much like similar bodies do around the Anglosphere.
As this blog has often argued, a nationally constituted Criminal Cases Review Commission would not only absolve Attorneys-General of tough choices about politically sensitive petitions concerning sexual abuse convictions, it would also serve the interests of justice.
For more information on how most efficiently to establish a CCRC nationwide in Australia, Attorneys General are urged to please write to the editor: Andrew.urban@wrongfulconvictionsreport.org