Media release: Position on Establishing a Criminal Case Review Commission in Australia
Background
The recent unconditional pardon of Kathleen Folbigg has re-ignited discussions about an independent Criminal Case Review Commission (CCRC) in Australia. CCRCs are statutory bodies responsible for re-examining criminal cases where claims of wrongful conviction or sentence are made, and where applicants have exhausted all avenues for appeal.
CCRCs have been established in UK, Scotland, New Zealand, Norway, and North Carolina, and Canada is in the process of establishing a similar body. Calls are currently being made by legal practitioners and academics to implement an Australian CCRC to assist in the review of claims of wrongful convictions locally.
Our Position
The Bridge of Hope Innocence Initiative (BOHII) welcomes increased attention on wrongful convictions in Australia, however we believe calls to implement a national CCRC may be premature.
Law reform regarding post-conviction review options in Australia has tended to be driven by high profile cases and a general sentiment that ‘more should be done’ rather than solid evidence-based public policy. In fact, very little is known about the risk factors for wrongful conviction and other miscarriages of justice in Australia, including whether Australia has unique social and structural factors that increase the risk of an error occurring.
Amongst the 160+ applications for review currently before BOHII there are:
Few cases involving DNA evidence or relying heavily on forensic expertise.
Many cases with significant reliance on witness testimony, particularly from alternate suspects.
A majority of largely circumstantial cases, where there is evidence of motive but very little else.
Key issues of concern across our cases are:
Undetected/unchallenged non-disclosure or undetected/unchallenged partial or incomplete disclosure
Calling one witness to give evidence on behalf of several (e.g., police, emergency services workers)
Evidence that remained unexplored at trial
Lawfully induced confessions
Loss/destruction of materials and unavailability/death of key witnesses
Indistinct covert recordings transcribed by police without linguistic expertise
Cognitive impairments and/or linguistic diversity
Insufficient preparation time allowed for cases involving complex and voluminous materials.
Similarly, with the CCRC (UK), an Australian CCRC is likely to be tied to state first and second appeal criteria because of concerns that independent powers to overturn convictions could encroach on judicial independence and create an inequitable post-conviction review process with individuals pursuing the appeals route needing to satisfy a much higher threshold.
Post-conviction review mechanisms which rely on the production of ‘fresh’ evidence, however, would exclude most cases that we see as part of our day-to-day work. Fresh evidence requirements assume that defendants have the capacity to digest complex materials and appropriately instruct their lawyers and exclude defendants who cannot be present in their own proceedings because of illiteracy, cognitive impairment, or linguistic diversity. Appellate courts have also consistently found that there is no miscarriage of justice in holding an accused to tactical decisions made on their behalf by counsel.
Our experience is that convicted individuals can have great difficulties in clearly articulating the grounds and evidence that might establish their innocence. We would be very concerned about any threshold review process relying on a ‘desk assessment’ of the merits of an applications for assistance such as that adopted by the UK CCRC, which are likely to overlook genuine wrongful convictions. Desk assessments significantly disadvantage applicants from vulnerable backgrounds, including those with low literacy levels, cognitive or mental health impairments, cultural and linguistic diversity and/or other markers of vulnerability and disadvantage.
Investigating wrongful conviction claims is very resource intensive and the operations of the UK CCRC have been impacted by significant funding cuts over the last few years. It will be very difficult to estimate an appropriate budget for an Australian CCRC because of the unknown volume and complexity of cases likely to be reviewed but an Australian CCRC is unlikely to be adequately funded to provide the resources and hours needed to fully investigate a case.
Rather than implementing an Australian CCRC now, it is BOHII’s position that:
The definition of ‘fresh’ evidence should be expanded as in s 35D Criminal Appeals ACT 2004 (WA)
New criteria for ‘new’ evidence appeal similar to s 35H(4) Criminal Appeals ACT 2004 (WA) should be incorporated in second right appeals regimes in other jurisdictions
Inadequacies in police and prosecutorial disclosure across Australia should be addressed through random, independent auditing of disclosure certificates and a requirement for complete and itemised details of disclosed material.
There should be a mandatory, centralised digital storage of case files to assist in post-conviction review.
A national review should occur of the reliability of forensic evidence in Australia.
There should be government funding of innocence projects to undertake the investigative work required to identity wrongful convictions.
Additional funding should be provided to police to engage appropriate experts in the transcription of covert recordings.
Finally, research across Australia should be prioritised to identify the risk factors for miscarriages of justice. Before determining the appropriate mechanism through which wrongful convictions can be detected and addressed, far more needs to be known about the kinds of errors that can lead to miscarriages of justice in Australia, particularly those experienced by Aboriginal and Torres Strait Islander people and other vulnerable groups who are grossly over-represented in the criminal justice system.
For further information, please contact:
Dr Michele Ruyters
Director
The Bridge of Hope Innocence Initiative at RMIT University
School of Global, Urban and Social Studies
innocence.intiative@rmit.edu.au
+61 401 992 235
GPO Box 2476
Melbourne VIC 3001
Australia