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Everyone has the right to an appeal should compelling evidence come to light .
Legal appeal
Academics hope Canada ’ s effort to review wrongful convictions will encourage Australia ‘ to take note ’.
By Wade Zaglas
Two legal academics from Flinders University say Canada ’ s ongoing push to create an independent body to review wrongful convictions highlights significant shortcomings in Australia ’ s legal system .
Both lawyers and Adjunct Associate Professors from the university ’ s college of business , government and law , Dr Robert Moles and Bibi Sanga , were recently invited to provide a submission to consultations in Canada on the establishment of an independent Criminal Case Review Commission ( CCRC ) in the country .
“ This provided us the opportunity to reflect on Australia ’ s own progress with wrongful convictions and realise in certain jurisdictions we ’ re still very behind ,” Moles said .
“ In some states there are people languishing in jail for crimes they didn ’ t do and with no possible recourse to get themselves out .”
The United Kingdom and New Zealand already have CCRCs , which operate independently from both the police and the judicial system . Such commissions have the “ power to request and review evidence and advise a court as to whether a potentially wrongfully convicted person should be given a retrial ”.
At the moment no commission exists in Australia , but both Moles and Sangha were “ instrumental ” in at least bringing in statutory right of appeal laws in South Australia , Tasmania and Victoria .
“ Before these laws existed , new evidence could come to light suggesting a conviction was wrong , but not much could be done about it if a person had exhausted all their avenues of appeal ,” Moles stated .
“ It was up to the state ’ s Attorney-General , a politician , to send the case back to court and as there were no guidelines ; applications could be rejected for any reason or for no reasons at all .
“ Now , if there is fresh and compelling evidence , a person has the right to go before a court and have that evidence heard .”
The impact of the statutory right of appeal laws has been significant in some cases . Once the law was introduced in South Australia in 2013 , it was utilised by Henry Keough . Keough was convicted of murdering his fiancee Anna-Jane Cheney in 1994 and spent 21 years in prison . However , a review of the case found his conviction was “ predominantly based on forensic evidence that was eventually determined to be false and misleading ”.
While the ACT and WA “ are likely ” to soon follow the aforementioned states in introducing right of appeal laws , NSW , the Northern Territory and Queensland are yet to introduce any legislation to establish such commissions .
“ We call upon these states to establish a clear avenue for those potentially wrongfully convicted ,” Moles said .
“ Everyone has the right to an appeal should compelling evidence come to light and one ’ s location , be it in New South
Wales or South Australia , should not have a bearing on if that right is available to them ,” added Sangha .
A highly publicised case that would benefit from the introduction of statutory right of appeal laws in NSW is that of Kathleen Folbigg , convicted in 2003 of murdering three of her children . Despite 90 “ eminent scientists ” signing a petition for her release in March this year , fresh evidence – including genetic and medical explanations for all of the children ’ s deaths – will not be considered as “ Folbigg has exhausted all her current avenues for appeal ”.
The two Flinders University academics said in their submission that Canada could create an “ almost perfect system ”, taking the best parts of criminal case review from Australia , New Zealand and the UK .
“ The UK and New Zealand have the review commission but not the right of appeal laws , while Australia has the law ( in some places ) but not the commission .
“ We ’ ve seen from the UK and New Zealand that the CCRCs can become overworked and bogged down , leading to slow review times as individuals have to rely on the commission to go to court without the ability to appeal to the court themselves .
“ On the other hand , the review commission means anyone possibly wrongly convicted has the potential to have the case reviewed , regardless of their access to lawyers and researchers .”
The “ ideal system ”, according to Moles , would comprise a Criminal Case Review Commission , operating alongside right of appeal laws and existing innocence projects .
“ Innocence projects , largely run out of universities , shouldn ’ t be forgotten as they can play a pivotal role in reviewing cases and evidence , reducing the burden on the review commission themselves , while also providing invaluable legal education ,” Moles argued .
“ No system is infallible , but Canada has the opportunity to learn from other jurisdictions and make a very informed decision . I just hope Australia takes note ,” he concluded . ■
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