On International Wrongful Conviction Day, Australia still leaves prisoners to overcome an almost impossible barrier when challenging unsafe convictions.
On International Wrongful Conviction Day, it is timely to remind our attorneys-general how far Australia lags behind in recognising and responding to miscarriages of justice.
For 30 years, the United Kingdom has had an independent mechanism for evaluating claims of wrongful conviction for serious crimes: a Criminal Cases Review Commission (CCRC), in one form for England, Wales and Northern Ireland and another form for Scotland. Each has the power to independently review and investigate claims of wrongful conviction and, if it believes there are valid grounds, to refer the case back to the relevant court for a new appeal.
The bar to be cleared differs: in Scotland the standard that the CCRC must meet is that there ‘may have been a miscarriage of justice and that it is in the interests of justice that a referral be made’; in England it is that ‘there is a real possibility that the Court of Appeal will quash the conviction’.
The value of both CCRCs has been well demonstrated. Prior to the establishment of the English one, the home secretary (for our purposes, the equivalent to an attorney-general) referred on average four to five cases per year back to the Court of Appeal. Since the CCRC began operations in 1997, on average, it has referred 25 to 30 cases annually, with 70 per cent of appeals being successful.
While the CCRC model has now been embraced by Canada, Norway and New Zealand, Australia has not followed, despite repeated calls from retired senior judges and eminent legal academics. A proposal for a CCRC was considered by the South Australian Parliament in 2013 but was rejected in favour of a new right to a further appeal if the convicted person could produce ‘fresh and compelling’ evidence.
Variants of this have now been adopted by all Australian jurisdictions other than the Northern Territory and NSW. There is no mention of ‘fresh and compelling’ evidence in the grounds governing referral from the English and Scottish CCRCs to the appeal courts; their grounds are framed more broadly.
Sadly, by choosing what seemed an attractive option, six Australian jurisdictions have now cemented a ‘Catch 22’ entrapment of wrongly convicted people across the country. Yes, there are new grounds for appeal available but they are effectively impossible to meet and bad in principle. Below we seek to explain why.
In 2013, the South Australian Parliament seemed to base these new grounds for a further appeal on a simple but deceptive notion of legal symmetry. Its thinking appeared to be that if, on the basis of fresh and compelling evidence, the state can re-prosecute persons found to be not guilty, then wrongfully convicted people who can produce their own ‘fresh and compelling’ evidence should be entitled to a new appeal. This new state power undermined the long-held general principle of the finality of jury decisions, especially in not guilty verdicts.
For several reasons, this approach is flawed. First, it has been in place long enough to show that it is not fit for purpose. Since the ‘fresh and compelling’ evidence provisions were legislated for across Australia (from 2013 onwards), there have been only 18 applications to courts of appeal with five upheld. By comparison, extrapolating from the English CCRC data, we estimate that each year in Australia a minimum of eight to 10 people (whose appeal rights have been exhausted) would be granted a new appeal if Australia had the equivalent of a CCRC. Clearly few of this potentially large cohort have been able to access, let alone have been aided by, the ‘fresh and compelling’ provisions.
Second, it entrenches the impossible position of wrongfully convicted people. The wrongfully convicted person in jail now has grounds to challenge their conviction. However, because the person is in jail, accessing these grounds in practice is almost impossible. The ‘fresh and compelling’ provisions have mired wrongfully convicted prisoners in a ‘Catch 22’ trap. Unless the wrongfully convicted person is well supported by (pro bono) lawyers, experts, and ideally a committed journalist, his or her ability to access documents and other necessary resources from inside jail is more or less non-existent. This assumes that the wrongfully convicted person has the knowledge and personal attributes required to even contemplate challenging their wrongful conviction.
It is unfair for the state to arm itself with a new right based on ‘fresh and compelling evidence’ given all the policing and prosecution resources at its disposal, and to think that providing the same grounds to wrongfully convicted prisoners without any material support is a form of equitable treatment. A Criminal Cases (or Miscarriages of Justice) Review Commission is needed to redress this unconscionable imbalance.
Third, in our view and the view of many legal academics, while the concept of ‘fresh and compelling’ evidence makes sense as an appropriately high standard for a re-prosecution, it is not appropriate when a wrongfully convicted person simply asks ‘is my conviction safe?’
Furthermore, it is an inappropriate bar for some wrongfully convicted people to have to clear. The notion of ‘fresh’ evidence would not have assisted Lindy and Michael Chamberlain. Any fair reading of the findings of Justice Morling, who conducted the 1987 Royal Commission into their wrongful convictions, should lead to the conclusion that he was not dealing with ‘fresh’ evidence but with correction of the prosecution’s fallacious forensic evidence presented at the trial. It may not have assisted David Eastman and has not assisted Derek Bromley, among others. It is a similar barrier now facing Robert Farquharson in Victoria despite mounting indications that much of the circumstantial evidence – including forensic evidence – that resulted in his conviction was seriously flawed. The myriad circumstances of wrongful convictions means that ‘fresh and compelling’ does not capture the variety of ways in which a conviction may be concluded to be unsafe.
Finally, by restricting the grounds for appeal in this manner, other traditional grounds for appeal may no longer be open. In the past, these included claims that the jury verdict was unreliable or that legal errors had pervaded the trial but did not become apparent until after failure of the first appeal.
On paper, it might be said that wrongfully convicted individuals now have a path to justice. However, it is path which is mistaken in principle and one virtually impossible for wrongfully convicted people to find or follow. It is a path that demands urgent replacement with a national Miscarriages of Justice Review Commission (to use the name Canadians chose for their Criminal Cases Review Commission).
Stephen Cordner AM is emeritus professor of forensic medicine at Monash University and was the founding director of the Victorian Institute of Forensic Medicine. He is co-author with Kerry Breen of Wrongful Convictions in Australia: Addressing issues in the criminal justice system (2023).
Kerry Breen AO is a retired physician whose career spanned roles in clinical medicine, medical ethics, regulation of the medical profession and the health of doctors. His long-term interest in medical ethics is reflected in his 2018 publication, Memoir of an Accidental Ethicist.