Legal limitations that restrict the right to fair trial put South Australia – and Australia – at odds with its international rights and obligations, and potentially leave unfairly convicted people unable to contest miscarriages of justice, according to a Flinders law academic.
Ms Bibi Sangha (pictured) is appearing today before the South Australian Legislative Review Committee in support of a 76-page submission that outlines the failure of judicial processes to allow for post-conviction reviews of alleged miscarriages of justice.
Ms Sangha’s initial work on the area prompted the introduction into State Parliament of The Criminal Cases Review Commission Bill 2010 by MLC Ann Bressington, which has been referred to the Committee.
Ms Sangha says that the self-imposed limitations have fundamental implications for justice.
“For instance, the Court of Appeal says that even in the face of compelling new evidence, it cannot hear a further appeal once an initial appeal has been rejected,” Ms Sangha said.
Similarly, the High Court says that constitutionally it is unable to receive fresh evidence indicating a possible miscarriage of justice.
And in South Australia, the remaining option of a statutory petition falls to the discretion of the Attorney-General, meaning that the petition may never achieve a judicial review.
This is even when there is new evidence, or clear evidence of errors by the prosecution’s expert witnesses, Ms Sangha said.
“In effect, unfair convictions are being excluded from the judicial review process, which is clearly inconsistent with the United Nations International Covenant on Civil and Political Rights,” she said.
Ms Sangha said that the deficiencies fly in the face of international legal principles and also of the rule of law.
“I see it as a very serious and fundamental failure of the legal system, and it has been going on for some 30 years,” she said.
Ms Sangha’s position is being supported the Australian Human Rights Commission, which has also made a submission to the Legislative Review Committee.
“Essentially they agree with what we have been saying – that the criminal appeals system across Australia does not protect the right to fair trial, and does not provide a proper opportunity for appeal for someone who is the subject of a miscarriage of justice.”