Parliamentary Committees

LEGISLATIVE REVIEW COMMITTEE: CRIMINAL CASES REVIEW COMMISSION BILL

The Hon. G.A. KANDELAARS (16:00): I move:

That the report of the committee, on its inquiry into the Criminal Cases Review Commission Bill 2010, be noted.

On 10 November 2010 the Hon. Ann Bressington introduced the Criminal Cases Review Commission Bill into the Legislative Council. The bill was modelled on legislation that established the Criminal Cases Review Commission in the United Kingdom. In June 2011 the bill was withdrawn by the Hon. Ann Bressington and referred to the Legislative Review Committee for inquiry and report along with a number of other matters, including alternative approaches to rectifying issues with the prerogative of mercy and the possibility of establishing a national criminal case review commission.

The committee received 29 written submissions and heard oral evidence from eight witnesses. The submissions to the inquiry covered three main areas: first, an examination of the current mechanism for appeal against the conviction; secondly, the need for reform in this area; and thirdly, an exploration of different criminal case review models proposed in the bill and in interstate and overseas jurisdictions.

Submissions raised concerns about the limited opportunity and statutory rights available to a person who believes they should not have been convicted of an offence, or where new evidence comes to light which may cast doubt over the conviction. Currently, the person has a right of appeal against their conviction on limited grounds provided by statute. The court has determined that it will not reconsider evidence already adduced at trial and will not allow an appeal simply because it disagrees with the decision of a jury.

A convicted person has no right to a further appeal on any grounds after this one right of appeal has been exhausted. This is known as the principle of finality. The only other option for a person wanting to challenge their conviction is a petition to the Governor for a pardon in the exercise of the prerogative of mercy. This is an entirely discretionary exercise of power by the Governor and does not result in a conviction being quashed. Petitions to the Governor from a convicted person are usually referred to the Attorney-General for consideration under section 369 of the Criminal Law Consolidation Act 1935.

Submissions were critical of the current appeal mechanism, the operation of the royal prerogative of mercy and section 369 investigations undertaken by the Attorney-General as being too difficult to establish, expensive and lacking independence. They submitted that royal commissions were a rare and expensive way of reviewing criminal cases. The submission from the Australian Human Rights Commission cast doubt on whether South Australia's current appeal system complies with international legal obligations under the International Covenant on Civil and Political Rights.

There are a variety of factors which may cast doubt over a person's conviction. The committee heard evidence about the nature of the adversarial trial and the propensity of wrongful convictions to occur as a result of the presentation of forensic evidence. Witnesses and submissions expressed concern about the changing nature of forensic science and the development of new technologies that may allow evidence to be retested, the results of which may show that a convicted person is innocent or cast reasonable doubt on the safety of the conviction.

Concerns were also expressed about the method by which scientific expert evidence is adduced at trial. Submissions outline that forensic evidence may be misunderstood or misused due to the question and answer format in which it is adduced in an adversarial trial. Forensic evidence is very complex, and some submitted it may be too complex for a jury to understand. Some witnesses describe the so-called 'CSI effect', where juries may put more weight on forensic evidence than they ought as a result of the presentation of forensic evidence in TV shows. The committee was also concerned that there was no formal opportunity for a jury to ask questions and seek clarification if they did not understand certain matters.

I now turn to the Hon. Ann Bressington's Criminal Cases Review Commission Bill, which the committee examined in some detail. The purpose of the bill was to establish an independent body in South Australia which would provide convicted persons with an opportunity to have any claims about the safety of their conviction investigated and referred to the court, if the commission concluded there was a reasonable possibility that the conviction could be overturned. The bill provided for a five-member commission, with the membership including legal practitioners and those with particular knowledge of the criminal justice system.

Under the bill, the commission would have had the power to investigate applications on behalf of persons convicted of both summary and indictable offences and sentences. The commission's terms of reference under the bill are threefold. First, they must consider that there is a real possibility of a conviction or sentence not being upheld; secondly, this must be as a result of an argument, evidence or information not raised in the original proceedings; and, thirdly, an appeal against a conviction or sentence must already have been refused by the court.

The bill provided the commission with a number of powers of investigation and the ability to assist both the courts and the Attorney-General in their conviction, appeal and review functions. Concerns were expressed in submissions and evidence about the operation of such a commission, including the scope to hear new evidence, its consideration of the outcome of the trial rather than the person's innocence, and the lack of provision for informing and engaging victims of crime.

The committee also heard evidence about the effectiveness of the UK CCRC, which has been in operation since 1997. The committee investigated and heard evidence about the way in which the CCRCs in other jurisdictions operated and also other methods of post-conviction review. The United Kingdom, including Scotland, and Norway all have criminal case review commissions. North Carolina has an Innocence Inquiry Commission which forms part of the courts. Canada has statutory provisions for further right of appeal against a conviction to the federal Attorney-General which undertakes a review and then refers the matter back to the court for hearing.

The committee also considered a national approach to the post-conviction review in Australia. New South Wales has been the only Australian jurisdiction to address post-conviction review in a way other than through the courts. They have an extended statutory appeals section whereby a person can apply to the court, the Attorney-General or the Governor for a review of their conviction. They also have established a DNA review panel, which can organise the testing of DNA where an applicant is of the view that such evidence may prove their innocence.

In light of the evidence and the committee's consideration of the terms of reference, it made seven recommendations. The first was that there should not be a permanent CCRC in South Australia as established by the bill introduced by the Hon. Ann Bressington. The committee is concerned that a permanent CCRC would not be an adequate use of resources, given the size of this jurisdiction and the number of matters it would review.

The committee also considered the national criminal case review model, as required by the inquiry's terms of reference. It is of the view that there may be jurisdictional issues with a national body directing a state court. The committee is also mindful of the need for all states to consent to participating in such a scheme and that there would be difficulties for a national commission applying different laws, caused by the lack of uniformity of the criminal law throughout Australia. It is therefore recommended that the Attorney-General not pursue the establishment of a CCRC at a national level.

However, the committee considers that current mechanisms for the consideration of potential wrongful convictions are in need of reform. It is of the view that such reforms should be addressed through amendments to existing legislation rather than through the establishment of a CCRC.

Part 10 of the Criminal Law Consolidation Act provides several exceptions to the double jeopardy rule. A person acquitted of an offence may be tried again where the acquittal was tainted; that is, where somebody has committed perjury or another administration of justice offence, or where fresh and compelling evidence comes to light. However, there is no opportunity for a re-trial or review of a person convicted of an offence on the same grounds. To that end, the committee recommends that a person convicted of a serious offence should be allowed a further appeal against where the court finds that the conviction is tainted or where there is fresh and compelling evidence in relation to the offence which may cast reasonable doubt on the guilt of the convicted person.

The committee was particularly interested to hear that the majority of concerns about the safety of convictions centred around the nature and presentation of scientific evidence. The committee is of the view that if the process by which scientific and forensic evidence were more rigorously controlled, the propensity for wrongful convictions would be greatly reduced. The committee therefore recommends that the Attorney-General liaise with the courts in undertaking a review of all current rules and procedures for the admission of expert evidence in criminal trials.

The committee would like to see the presentation of prosecution and defence expert evidence simplified and agreed between both parties, if possible, instead of presented in an adversarial way as is currently the case. This would allow those parts of scientific evidence, in particular, which are not in contention to be agreed and presented to a jury as such. It is hoped that this agreed evidence will streamline arguments about expert evidence and limit argument in court to the differences in expert testimony. The committee also recommends that there be an opportunity for jurors or the judge to ask questions and seek clarification from expert witnesses during trial.

In addition, the committee recommends that the Attorney-General considers establishing a forensic science review panel to enable the testing and re-testing of forensic evidence which may cast reasonable doubt on the guilt of a convicted person and for those results to be referred to the Court of Criminal Appeal. This panel would be similar in constitution and operation to the New South Wales DNA Review Panel and would allow a convicted person to raise questions and ask for the re-examination of existing evidence, or consideration of new evidence not available at the time of trial. The panel would then have the power to refer such evidence to the court of appeal for consideration.

Many witnesses to the inquiry were critical of the operation of the exercise of the royal prerogative of mercy, submitting that it was entirely at the discretion of the executive and, if granted, did not actually result in a conviction being squashed. The committee recommends there be a mechanism in South Australian legislation to allow for a conviction to be quashed or to be considered quashed if a convicted person is granted a pardon.

The committee notes that in the process of considering the rights of the convicted person to review, there should also be consideration of the rights of the victims of crime. Many of the submissions to the inquiry expressed the view that the victims often feel disempowered and that the legal system is skewed in favour of the defendant and that any further conviction review may have a detrimental effect on the victim's need for finality and their efforts to recover from the effect of the crime.

The committee is keen to ensure that the victim's rights are protected and that victims are not only notified but able to participate in the post-conviction review if they so choose. It therefore recommends that the Commissioner for Victims' Rights and victims of crime be notified of any post-conviction review to be undertaken under any act and be able to make submissions to any such review proceedings either through witness submissions or through representation by the Commissioner for Victims' Rights and to be entitled to information about the progress of such a review.

On behalf of the committee, I thank all those who made submissions and gave evidence to the inquiry. I thank the members of the committee: the Hon. John Darley and the Hon. Stephen Wade, Ms Gay Thompson (member for Reynell), Mr Alan Sibbons (member for Mitchell) and Mr John Gardner (member for Morialta). I also thank committee staff: Adam Crichton and our former research officer, Ms Carren Walker, for their work in relation to this report. I commend the report to the council.

Debate adjourned on motion of Hon. J.M. Gazzola.