CRIMINAL CASES REVIEW COMMISSION BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 November 2010.)

The Hon. S.G. WADE (21:22): I rise to speak on the Criminal Cases Review Commission Bill, on behalf the Liberal opposition. On 10 November 2010 the Hon. Ann Bressington tabled this bill; a bill to establish a Criminal Cases Review Commission. CCRCs, as they are colloquially called, are independent bodies with powers to actively investigate claims of wrongful convictions and to refer substantiated cases to courts of appeal.

There are two such commissions in the United Kingdom: one serving Scotland and one serving the remainder of the country. They were established after a series of significant miscarriages of justice (the Birmingham six and the Guildford four) and have reportedly served to help restore public confidence in the justice system in the United Kingdom. There are also CCRC type bodies in Norway and the state of North Carolina in the United States.

The Hon. Ann Bressington worked with the legal academic, Dr Bob Moles, in developing the bill and it is indeed a substantial piece of work. Whilst it is not possible to know the number of miscarriages of justice in the South Australian criminal justice system, Dr Bob Moles has highlighted a range of possible cases of injustice on his website, State of Injustice, which I would categorise in broad terms as follows:

two miscarriages in favour of the defendant;

six miscarriages against the defendant;

and five cases raising serious concerns about pathology services.

The Hon. Ann Bressington rightly highlights a number of current structural impediments to the correction of potential miscarriages of justice. First ,that a criminal appeal following trial must be initiated within 30 days, which often does not allow defence teams enough time to discover new evidence.

Secondly, an appellant seeking to have a conviction set aside will need to show that the conviction is unreasonable or cannot be supported by the evidence, that there has been a wrong decision on a question of law or on any ground that there has been a miscarriage of justice. The inability of the Supreme Court to reopen an appeal once an appellant's initial appeal has been finalised is also a structural impediment, as is the fact that any new evidence that has come to light since the appeal, regardless of its weight or relevance, is inadmissible in the High Court.

Once a person has exercised their appeal rights, they can submit a petition to the Governor. Their petition is referred to the Attorney-General who, under section 369 of the Criminal Law Consolidation Act 1935, may at the Attorney's absolute discretion refer the whole case to the Supreme Court, and the case is then heard and determined by that court, as in the case of an appeal by a person convicted.

The Hon. Ann Bressington highlights legitimate concerns with our criminal justice system. These concerns are shared by a number of people in the legal profession. In fact, in a letter to the Hon. Ann Bressington last week the Law Society expressed its concerns in the following terms:

Justice, however, lies at the heart of our criminal justice system. Nothing undermines our system of justice more than a substantial miscarriage of justice resulting in the conviction of an innocent person. It is essential, therefore, that our mechanisms for review be equipped to uncover and highlight substantial miscarriages of justice.

We believe the system of post conviction review in this State (Royal Prerogative of Mercy), after all avenues of appeal have been exhausted, is not ideal and will not necessarily uncover and highlight all substantial miscarriages of justice. It is for this reason that we support the establishment of a CCRC.

With the Law Society standing with the Hon. Ann Bressington in highlighting the concerns about the capacity for our criminal justice system to deliver justice we, as a council, are faced with the challenge of: how do we respond?

The Liberal Party has a longstanding interest in the criminal cases review commission option as a means of responding to this challenge of injustice. In 2004 the Liberal Party moved motions in both houses of parliament proposing a reference to the Legislative Review Committee on a possible criminal cases review commission. In our 2006 election policy the Liberal Party promised to examine the establishment of a criminal cases review commission to provide advice in relation to cases where there is demonstrable risk of miscarriage of justice.

The Law Society has crossed the Rubicon. It not only recognises the need to improve our criminal cases review process but it has decided that a CCRC is the correct response, not necessarily a commission in terms of this bill but a commission. To again quote the society's letter to the Hon. Ann Bressington, it states:

The Society supports, in principle, the establishment of a Criminal Cases Review Commission...and we are, generally, supportive of the Criminal Cases Review Commission Bill 2010...There are, however, several specific matters which we wish to raise. The principal concern is the scope of the power for the CCRC to refer cases. We believe it is too wide and will, if passed in its current form, undermine confidence in the criminal justice system.

Later, the letter goes on to state:

It is our view that an appropriate mechanism for post-conviction review be established with a view to minimising the occurrence of substantial miscarriages of justice. We believe that a CCRC, properly instituted and empowered, should be that mechanism. In so stating, we caution that a CCRC should not be, in effect, another court of appeal. It is fundamental for the integrity of the criminal justice system that a CCRC does not give rise to the view that a verdict or sentence of a court may be subject to ongoing review and revision after the matter has been finally disposed of.

It is essential, for the reasons set out below, that the role and function of the CCRC is limited in its scope to dealing with potential substantial miscarriages of justice that occurred because the relevant court at the time could not reasonably have been in a position to consider all the evidence. Errors made during the course of criminal proceedings by a court or a party, including the accused, are properly the sole domain of our current appellate system of criminal review and should remain so.

The Law Society goes through a number of suggested improvements, but it is clear on its face that the Law Society supports the concept of the Hon. Ann Bressington's bill and is keen to work with both the Hon. Ann Bressington and this parliament to develop the optimal model. As I said, the Liberal Party is of the view that the process for review of criminal cases needs to be reviewed. We remain interested in a CCRC but do not feel that we are in a position to commit to any particular process or model at this stage.

We commend the Hon. Ann Bressington for introducing the bill and for highlighting the issue and, as an opposition, we want to foster the dialogue that the Hon. Bressington has reignited. To that end, we propose that the bill be referred to the Legislative Review Committee. We consider that the Legislative Review Committee can provide a forum for the exchange of perspectives, for the collation of information relevant to South Australia and for consideration of options. I move this amendment on the understanding that it would be agreeable to the honourable member who proposes the bill. Having made those comments, I move to amend the motion as follows:

Leave out all words after 'That' and insert 'the bill be withdrawn and referred to the Legislative Review Committee for inquiry and report.'

The Hon. D.G.E. HOOD (21:31): I rise to indicate Family First's support for this sensible bill, as introduced by the Hon. Ms Bressington. Assuming the Hon. Ms Bressington is supporting the amendment—of which I was not aware—

The Hon. A. Bressington: Yes.

The Hon. D.G.E. HOOD: —then we would be inclined to support that, too. I think it is sensible to have this properly examined. I had quite a speech but, in light of the amendment that has been moved, it may be inappropriate to give the speech now, given that the final form of the bill may change. That being the case, I have just a few brief thoughts.

I think this is a good move on the whole. I think it is also wise to refer it to a committee, because it is very important to get it right. It is the sort of thing where wiser heads will prevail, and referring it to the committee will probably enable it to be scrutinised in a way that it may not be in this particular forum.

I am acquainted with Dr Bob Moles, who I think has done a tireless and excellent job in raising these issues both publicly and privately with members, and in the public arena as well. The truth is that there are injustices from time to time—we all know that—and it is absolutely regrettable. I do not think anyone would accuse me of being soft on crime; I am quite sure they would not. However, none of us—including me—want to see anybody punished unfairly or incorrectly. I genuinely commend the Hon. Ms Bressington for moving this bill. I think it is a good issue to be considered properly.

I indicate that Family First was happy to support the model as presented; however, we look forward to the bill being fully examined. We approach this bill with a spirit of likely support for the final model. As I said, we expected to support the model as it stood.

The Hon. R.P. WORTLEY (21:33): The government opposes this bill. I have a speech to make but, at the end of the day, the numbers in this council will have this deferred to the Legislative Review Committee. As chairman of the committee, I will look at it there. I do think that committees are overworked; a lot more work is put on those—

The Hon. A. Bressington: Wah, wah, wah.

The Hon. R.P. WORTLEY: You would not understand that, of course. While we think the idea is probably not a good one, we will not stand in its way and will see it referred to the Legislative Review Committee.

The Hon. M. PARNELL (21:34): The Greens support this bill. Evidence from the UK and elsewhere shows that a mechanism is needed to address serious miscarriages of justice. I was pleased to meet two of the defendants known as the Birmingham Six not that long ago, and to hear their story can only reinforce the importance of a bill such as this. We do hope that miscarriages of justice are rare in South Australia, but I have no doubt that they exist and, under current legal arrangements, it can be very difficult or even impossible to address the miscarriage through the current court system. That is why we need a criminal cases review commission.

I thank the Hon. Ann Bressington for arranging the briefing by Dr Bob Moles, former law lecturer at the University of Adelaide and founder of Networked Knowledge and the co-author of the recent text Forensic Investigations and Miscarriages of Justice. Bob, as always, was very informative. He has done thorough research and he supports a bill such as this. If the bill does go off to the Legislative Review Committee, that is not a bad thing. It might come back in better shape, and I look forward to it coming back to this council for more considered deliberation.

The Hon. A. BRESSINGTON (21:35): I would like to thank all members for their contributions on this bill. It actually heartens me to hear that the majority of members in this place have recognised the need for reform of the current petition procedure and to hear the in-principle support expressed for a criminal case review commission. However, I understand why some members are reluctant to commit to the bill I have placed before them. This is the first bill to establish a criminal case review commission introduced into this parliament and, indeed, any Australian parliament.

I am more than willing to accept that this bill can be improved on and, in saying that, I note that detailed submission by the Law Society, for which I thank it. While supportive of the establishment of a CCRC, it has identified concerns with the present wording of the bill, as well as its scope to hear summary offences, amongst other concerns. While I am committed to the establishment of the CCRC here in South Australia in the absence of a national commission, I have always recognised that every state jurisdiction is also burdened by the same failings of the petition process and, as such, I viewed the establishment of a national commission as preferable to each state establishing its own

I also would like to thank Dr Bob Moles for the time and effort that he has put in to educate me and my staff on this issue and to help us formulate this UK model in the bill that was presented to this council. Dr Bob Moles is a pioneer, I believe, and he is a man who does not do any of this for fame or fortune. He does it because he sees a need and he sees that there is certainly room for improvement, and that is actually backed up by Mr Malcolm McCusker AO QC who, from 1 July, will become Western Australia's Governor. He wrote to me in support of a CCRC as well and also stated that the Attorneys-General in Perth and Victoria have also mentioned that they do believe there is a need but not a state-by-state one.

It seems to be pretty much across the board that there is a recognition that miscarriages of justice occur all over Australia, but that it would probably be better for a national CCRC to be established. I have to say that it was the intention, when I introduced this bill, to suggest probably at some stage that this would be referred to the Standing Committee of Attorneys-General for consideration on that level.

I flag that, while it is not that I am not supportive of the Legislative Review Committee reviewing this bill—I am—as a parallel approach to this, I will also be moving a motion in the next sitting week to have this referred to that Standing Committee of Attorneys-General. This particular issue cannot be allowed to fade away. We have come this far and we have seen that there is majority support in the council for this but we also have to, I think, consider that there is a bigger picture here rather than just South Australia.

I note that the Australian Lawyers Alliance has also written a letter of support for the establishment of a CCRC and has asked for time to provide a thorough response to the clauses of the bill, which would be useful for the process we have put forward to this council to go before the Legislative Review Committee. I keep my comments very brief because it is getting late and we have other issues to deal with, so I seek leave to conclude my comments.

Leave granted; debate adjourned.