Clearing path to appeal wrongful convictions

prisoner-behind-barsSouth Australia is set to overhaul its criminal appeals process for the first time in almost a century, thanks in part to research and advocacy by Flinders law lecturer Ms Bibi Sangha.

A Legislative Review Committee has made a recommendation to set up a new statutory right of appeal that will enable prisoners with evidence of a wrongful conviction to directly approach the courts.

It was a 2010 book written by Ms Sangha, Dr Bob Moles and Professor Kent Roach on unjust convictions stemming from flawed forensic evidence that first prompted Ann Bressington MLC to propose the establishment of a Criminal Cases Review Commission (CCRC), along UK lines.

Currently, South Australia has no legal mechanism to guarantee a right to further appeal even where fresh evidence emerges to show a person is innocent.

Ms Sangha and Dr Moles made a 76-page submission to the committee, pointing out the need to redress the legal blind-spot, particularly where forensic evidence has resulted in wrongful convictions. It is estimated that more than a dozen existing South Australian convictions for serious crimes have grounds for a judicial appeal.

While the committee has not backed the setting up of a broadly based CCRC, it has recommended the formation of a Forensic Review Panel that will have the capacity to recommend appeals in the light of doubt over forensic issues.

The committee has also recommended a review of expert evidence and the way it is received in courts in criminal matters.

“We highlighted in our book and in our submission to the inquiry that a common cause of wrongful convictions is the admission of unreliable forensic evidence,” Ms Sangha said.

“It can have a seriously prejudicial effect on the minds of jurors – and is frequently not sufficiently scrutinised by judges or probed or tested by defence lawyers.”

Ms Sangha said the Bill now being drafted for legislative consideration that incorporates the right to appeal is short and to the point, but is likely to have profound ramifications in South Australia and possibly beyond: if the Bill becomes law, other States will probably modify their own legislation to retain a common national approach.

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9 thoughts on “Clearing path to appeal wrongful convictions

  1. Well done Ms Sangha – finally South Australia will have a mechanism to protect some forms of injustice in the legal system.

  2. To the best of my knowledge, no Australian State has a legal mechanism guaranteed to return cases to the appeal courts when exculpatory fresh evidence emerges after the appeal process is exhausted. It is exciting that South Australia yet again leads the way in legislative reform to address this basic human right. Bravo…

  3. This work is critical to ensure our legal system is robust in its ability to achieve the best possible level of justice for all.
    It gives much hope. Thank you to all involved especially Dr Moles and Ms B.Sangha.

  4. I am waiting the day when justice for the many who are innocent will be acheived. (I still believe in miracles)
    Great article, keep believing justice will be accomplished sooner than later,love your passion and endurance, I support conformity to reason, truth,or fact.
    Yours Sincerely.

  5. Such important legislation in the name of justice. If successful this will be the first significant, “leading the way”, legislation to come from South Australia since the Dunstan era. It will put the state back into being a socially progressive one. Hopefully it meets with success and other states follow.

    E. Pringle, Melbourne, VIC

  6. This is a great outcome and an important development in ensuring that potential miscarriage of justice cases have a further mechanism for review by the courts. Well done to Bibi and Bob. I do hope that other jurisdictions take note and implement such reforms.

  7. A Criminal Cases Review Commission (CCRC) is obviously essential in an adversary system; there are figures to show that at least 1% of people in prison are innocent.

    In the year to 30 June 2011, taxpayers gave the Australian Law Reform Commission $3.152 million to recommend how to fix injustice in the system. Those wrongly in prison and taxpayers are entitled to ask why it apparently did not occur to the commissioners to recommend a CCRC.

    A CCRC, while necessary, is a post-trial solution. Twenty years ago, Professor Leonard Leigh and Lucia Zedner pointed to a pre-trial solution in which “the innocent are rarely charged, let alone convicted”.

    Leigh and Zedner note in A Report on the Administration of Criminal Justice in the Pre-Trial phase in France and Germany (Her Majesty’s Stationery Office, 1992):

    … the apparent paucity of cases of unjust convictions are the product of the care taken in the initial stages of the criminal process. A series of pre-trial filters also ensures that the innocent are rarely charged, let alone convicted … At the end of the instruction [investigation] the accused’s lawyer will be given an opportunity to examine the dossier and to make representations before the prosecutor decides whether or not the matter should proceed further. If the prosecutor, on receipt of the dossier from the examining magistrate, believes that the case should proceed, he will transfer the file to the chambre d’accusation. This court then assesses the correctness of the decision and thus serves as a further filter in the system. It may order that the case proceed, that it be dropped, that the charges be re-assessed … This court also sits in appeal on refusals of pre-trial liberty and on refusals by the examining magistrate to order investigations into matters suggested by the defence.

    England rejected that solution basically on the ground that Wogs begin at Calais. It is to be hoped that Australia, and the ALRC, has risen above that sort of racism.

  8. While I strongly support this advancement in our Legal System, I am concerned that it appears that only cases that have relied on Forensic evidence will be allowed appeals. What about cases where other information appears after the trial.

  9. A panel in your State that review scientific evidence etc is wonderful stuff, but what if a wrongful conviction arises out of disputed oral testimony? What if, after conviction and appeals, new evidence is reasonably suspected to exist that shows perjury – and even that a crucial witness was mentally incompetent and could have fantasized the accusation? What would the situation be if this new material lay buried in files that a convicted person could not legally access and freedom of information laws were of no help?

    The link below goes to a letter provided by me to the Attorney General of New South Wales in precisely this sort of a case.

    The need for a broad Criminal Cases Review Commission in every State is absolute. And perhaps, it might be time to look at the adversary system itself.

    Dr. Jim Saleam

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