Canada’s case for wrongful convictions: a lesson for Australia

Canada’s ongoing efforts to establish an independent body to review wrongful convictions has highlighted shortfalls in Australia’s own legal system, say two leading legal academics from Flinders University.

Lawyers Dr Robert Moles and Bibi Sangha, both Adjunct Associate Professors from Flinders University’s College of Business, Government and Law, were recently invited to provide a submission to consultations in Canada on the creation of an independent Criminal Case Review Commission (CCRC).

“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,” says Dr Moles.

“In some states there are people languishing in jail for crimes they didn’t do and with no possible recourse to get themselves out.”

CCRCs already exist in the United Kingdom and New Zealand, running independently from the police and judicial system but with the power to request and review evidence and advise a court as to whether a potentially wrongfully convicted person should be given a retrial.

While there is currently no commission in operation in Australia, Dr Moles and Associate Professor Sangha were instrumental in the establishment of new 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,” says Dr Moles.

“It was up to the state’s Attorney-General, a politician, to send the case back to court and as they 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.”

Dr Bob Moles and Associate Professor Bibi Sangha at Flinders University.

One of the first cases to utilise the law, once it was introduced in South Australia in 2013, was that of Henry Keogh. Keogh spent 21 years in prison for the murder of his fiancée Anna-Jane Cheney in 1994, a conviction predominantly based on forensic evidence that was eventually determined to be false and misleading.

While right of appeal laws now exist in three states – with the Australian Capital Territory and Western Australia likely to follow shortly – New South Wales, Queensland and the Northern Territory have yet to introduce any such legislation.

“We call upon these states to establish a clear avenue for those potentially wrongfully convicted,” says Dr Moles.

“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,” says Associate Professor Sangha.

One case that could benefit from such laws is that of Kathleen Folbigg, convicted in NSW of murdering three of her infant children in 2003.

In March this year, 90 eminent scientists signed a petition calling for Folbigg’s release, highlighting genetic and medical explanations for each of the children’s deaths. Despite this evidence, Folbigg has exhausted all her current avenues for appeal.

In their submission, Dr Moles and Associate Professor Sangha say Canada has the opportunity to implement an almost perfect system, taking lessons from Australia, the United Kingdom and New Zealand.

“Across all three Commonwealth countries we see pieces of a system that if implemented together could potentially produce the most comprehensive review system, minimising injustices,” says Dr Moles.

“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.”

Dr Moles says an ideal system would consist of a Criminal Case Review Commission, operating in tandem with 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.

“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,” says Dr Moles.

Consultation on Canada’s potential Criminal Case Review Commission continues. You can read Dr Moles and Associate Professor Sangha’s full submission here.

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