Andrew L. Urban
In just the three cases that were cited in our recent series (Oct 20 – 26 2025) allocating seven of our Red Herring Certificates to a total of 8 judges and 3 prosecutors who we believe have contributed to or helped maintain wrongful convictions, the rules that govern prosecutions in Australia were ignored multiple times. What could be done to justify calling it a ‘justice’ system?
Prosecutors speculated beyond the evidence and judges allowed it. Judges directly contradicted evidence. Appeal courts turned away appeals against blatant miscarriages of justice. We listed eight judges no less, and three prosecutors whose errors are easily identified, and whose actions resulted in what we have argued are wrongful convictions. One of the accused is in prison (Robert Xie), one is dead (Frank Valentine) and one is on parole after serving 13 years (Sue Neill-Fraser).
The separation of powers keeps the legal profession safe from political interference – but also from outside-driven reform. With a properly constituted national Criminal Cases Review Commission (CCRC), these miscarriages of justice could have been mended at the first step after initial appeal. Not only would that have served the interests of justice, but arguably saved enough money to help justify its costs by shortening the legal processes.
With the cooperation and encouragement of Flinders University academic Dr Bob Moles, this blog has written to four Federal Attorneys General proposing how such a national body (as distinct from Federal) might be established. Moles himself has argued for such a body.
He has written that “A national CCRC can be established by setting up a single CCRC and then each state and territory can legislate to nominate that CCRC as the appropriate agency to review cases on its behalf and exercise powers given to the CCRC by that state to refer matters to the appeal court of that state. This would not involve any constitutional change of any sort.
“In essence, instead of duplicating the overheads of a CCRC eight times by having one in each state and territory, resources are saved by having a single body exercising the appropriate powers for each state and territory.
“According to basic jurisprudential principles of sovereignty – as explained by Robert French, former Chief Justice of the High Court – Australia has a single unified legal jurisdiction which is why we have a common Supreme Court (the High Court). To have a single administrative body which can exercise powers on behalf of each state and territory, being cognisant of the minor variations in the law which may occur between them, would be administratively simple and have strategic and economic benefits.”
In such a scenario, after her first appeal was dismissed, Sue Neill-Fraser could have taken her case to the CCRC. It is entirely feasible that the CCRC would have recognised the core deficiencies at trial and referred the case back to Tasmania’s appeal court, with its reasons. The speculation put forward by the prosecutor and allowed by the trial judge would agitate the CCRC.
In the ignominious history of the case of Robert Xie, there are many flaws in the Crown case, but none so egregious as the attempt to negate his alibi: in bed by his wife’s side, as she confirmed to police and under oath.
Her Honour Elizabeth Fullerton, the trial judge, in her sentencing remarks at first states that ‘Consistent with the verdicts of the jury,’ the Crown has disproved alibi, but then states – in apparent contradiction – that she is not satisfied Beyond Reasonable Doubt that Robert did sedate his wife. If Her Honour doubted the Crown’s sedation scenario, wasn’t she obligated to raise that matter with the jury?
This case, too, would be referred back to the NSW appeal court for a sensible and legally acceptable appraisal of the evidence. And the conviction quashed…
In the case of the late Frank Valentine, a CCRC would certainly be miffed by the appeal court’s total disregard for the rules as it dismissed the appeal without reason. I’m not sure how critical a CCRC panel might be when sending cases back for review, but it should be encouraged in the rules establishing such a body, so as to provide lessons for future courts. Judges in appeal context are said to be reluctant to be critical of their peers. Pity that.
Perhaps the biggest obstacles to a national CCRC system is the lack of will exhibited so far by Federal Attorneys General to take the lead, followed by the resistance to such a scheme by State AGs. They have not shown reformist zeal.
Much sorrow and piles of cash could be saved and pretend justice avoided had Australia caught up with the Anglosphere and introduced a national CCRC platform before now.