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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-10-17 Daily Xml
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LEGISLATIVE REVIEW COMMITTEE: CRIMINAL CASES REVIEW COMMISSION BILL

Mr SIBBONS (Mitchell) (11:36): I move:

That the report of the committee, on 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 the legislation which established the Criminal Cases Review Commission in the United Kingdom. In June 2011 the bill was 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 cases review commission.

The committee reviewed 29 written submissions and heard oral evidence from eight witnesses. Submissions to the inquiry covered three main areas: firstly, an examination of the current mechanisms for an appeal against a conviction; secondly, the need for reform in this area; and thirdly, an exploration of different criminal cases review models proposed in the bill and in interstate and overseas jurisdictions. Submissions raised concern about the limited opportunity and statutory rights available to a person who believes that they should not have been convicted of an offence or where new offences come to light which may cast doubt over their conviction.

Currently, a 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 the 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 to petition the Governor for a pardon in the exercise of the prerogative of mercy. This is an entirely discretional exercise of power by the Governor and does not result in a conviction being quashed. Petitions to the Governor from convicted persons are usually referred to the Attorney-General for consideration under section 369 of the Criminal Law Consolidation Act 1935.

Submissions were critical of current appeal mechanisms, the operation of the royal prerogative of mercy and section 369 investigations undertaken by the Attorney-General as being too difficult to establish, extensive 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, in evidence, about the nature of the adversarial trial and the propensity for wrongful convictions to occur as a result of the presentation of forensic evidence. Witnesses and submissions expressed concerns that the changing nature of forensic science and the development of new technologies 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, and submissions outlined 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 described 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 Criminal Cases Review Commission Bill, which the committee examined in some detail. The purpose of the bill is to establish an independent body in South Australia which would provide convicted persons with the opportunity to have any claims about the safety of their conviction investigated and referred to the court if the commission concluded it was a reasonable possibility that the conviction would be overturned. The bill provides for a five-member commission, with membership including legal practitioners and those with particular knowledge of the criminal justice system.

Under the bill, the commission would have the power to investigate applications on behalf of a person 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 reasonable possibility of the 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, that an appeal against the conviction or sentence must already have been refused by the court. The bill provides 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 a 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 CCRCs in other jurisdictions operated and also other methods of post-conviction review. The United Kingdom, Scotland and Norway all have criminal cases review commissions. North Carolina has an Innocence Inquiry Commission, which forms part of the courts. Canada has statutory provisions for the further right of appeal against a conviction to the federal Attorney-General, who undertakes a review and then refers the matter back to the court for hearing.

The committee also considered a national approach to post-conviction reviews in Australia. New South Wales has been the only Australian jurisdiction to address post-conviction review in any way other than through the courts. They have an extended statutory appeal section whereby a person can apply to the court, the Attorney-General or the Governor for a review of their conviction. They have also established a DNA review panel which can organise the testing of DNA evidence 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 its jurisdiction and the number of matters it would review.

The committee has also considered the national criminal cases review model as required by the inquiry terms of reference. It is also 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 participate in such a scheme, and that there would be difficulties for a national commission applying laws, caused by a lack of uniformity of the criminal law throughout Australia. It therefore recommends that the Attorney-General not pursue the establishment of a CCRC at the national level. However, the committee considers that the current mechanisms for the consideration of potential wrongful convictions are in need of reform. It is also of the view that such reform should be addressed through amendments to existing legislation, rather than through establishing a CCRC.

Time expired.

Ms THOMPSON (Reynell) (11:46): 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 someone 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 retrial or review of a person convicted of an offence on these 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 the 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 or retesting 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 their trial. The panel would then have the power to refer such new 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 quashed. The committee recommends that 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 a review, there should also be consideration of the rights of the victims of crime. Many submissions to the inquiry expressed the view that 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 victims' needs for finality and their efforts to recover from the effects of the crime.

The committee is keen to ensure that victims' rights are protected and that victims are not only notified of but are able to participate in any 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, be able to make submissions to any such review proceedings, either through written submissions or through representation by the Commissioner for Victims' Rights, and be entitled to information about the progress of such a review.

On behalf of the committee, I would like to thank all those who made submissions and gave evidence to the inquiry. I would like to thank the members of the committee, the Presiding Member, the Hon. Gerry Kandelaars; the Hon. John Darley; the Hon. Stephen Wade; the member for Mitchell; and the member for Morialta, Mr John Gardner. I would also like to thank the committee staff secretary, Mr Adam Crichton, and our research officer, Ms Carren Walker, for their work in relation to the report.

Unfortunately for the committee, our research officer, Ms Carren Walker, has left our committee to enhance her career and meet greater challenges with employment with parliamentary counsel. Carren has been a wonderful and highly respected researcher and will be missed by all on the Legislative Review Committee. Speaking on behalf of the committee, I wish Carren well for the future.

I do commend the report to the house, but in five minutes I would like to make some of my own remarks. I think members can see that it was a very comprehensive review by the fact that we were not able to get through the official report of the noting of the committee in the usual time. It was a very interesting review. There was a wide range of submissions and witnesses, with people not always having the same view.

However, the committee had extensive discussions in which we explored our knowledge and understanding. Most of us are not lawyers, and we were therefore helped greatly by Carren Walker, who made a number of the legal documents quite understandable to those of us who were not lawyers, and thus we were able to benefit from the expertise of those who did have some law qualifications.

I think one of the important points that was made towards the end of the report was the issue of the victims of crime. Unfortunately, some of the submissions (which are on the website, and everybody can have a look at them) did seem to indicate that the person who was the victim of the crime was the person who was convicted of the crime despite a series of appeals and very comprehensive review processes. It was necessary to remind some of the witnesses that there was another victim of the crime—the person whose loved one had been killed, injured or whatever— and that it was necessary to consider their feelings.

In fact, I think at one stage I was admonished by a witness for referring to the victim of the crime has being the person who had suffered injury. This indicates that not all the legal profession is on the same page. I have to say that those who did not seem to understand the role we now place on victims of crime were those who had been practising for not so much time, since the victims of crime have had articulated rights given by this parliament to victims of crime.

In terms of the suggestions that have been made, we found it very useful to have some assistance from Dr Bill Tilstone, who was head of the forensic science division in South Australia for quite some years and who then went on to the US, where he developed a number of review processes to look at the integrity of forensic processes in that area. I think we need to give particular thanks to Dr Tilstone, who, from the look of his entry on Wikipedia, could have commanded a considerable sum for the advice he gave us completely free of charge and in a way that we could understand well. For those who want to do some more research, he pointed to Malta as a jurisdiction which combines the inquisitorial method of justice together with our adversarial system. He believes that this has been of great assistance to juries and other parties involved in very serious cases involving complex scientific facts.

Something else that came through was that, whilst some parties talked about the jurors not necessarily understanding scientific evidence, there was a fair bit of indication that the lawyers did not always understand the scientific evidence, either. After all, that is not what their degree is about; they are bush scientists, just the same as jurors are bush scientists. We were very keen that there should not be ambushing in court; that there should be an emphasis on agreed facts relating to scientific matters as much as possible; and that there should be notice of any witnesses who are coming forward with an expert opinion, so that the other party had time to consider how to handle that matter.

The point I would like to make in the remaining time is that we will seriously miss Carren Walker. She has been a model of how a research officer can really enhance the work of the committee and enable the committee members to bring the various views of the life they have and the perspectives from their electorate in a way that combines legal issues and our undoubted common sense. I commend the report.

The Hon. R.B. SUCH (Fisher) (11:56): I commend the Legislative Review Committee on what they did, and I think they came to the right conclusion. Overall, we have a very good justice system; things can go wrong but, in the main, I think it gets things pretty right.

What the committee, in effect, has recommended is that it is not necessary to set up a permanent criminal cases review commission, and that is partly because of the population size in South Australia and the amount of work they would have to consider. The United Kingdom has one, but obviously it has a much larger population. What the committee recommended, in effect, is that the laws relating to consideration of matters arising out of the courts should be modified, and I think it makes a lot of sense to do that.

I want to highlight something, based on my own experience. People say, 'That was a traffic matter.' Yes, that is true, but it did give me an insight into how the courts can malfunction, if you like. The first lawyer I had was well meaning and prepared to help me, but he became ill. Unfortunately, a lot of the key material he had, which would have helped my case, was never presented to court because he became ill.

I understood that it had been given to the second lawyer. In actual fact, it had not and was not, so it was never presented to court. So, that was one problem. The second lawyer made a very big error in not objecting to the certificate of accuracy relating to the laser; the certificate of accuracy had been altered with white-out and biro. He should have objected in court—he admits that—but he did not. The problem is that, when you have legal representation, you are basically voiceless in court; the lawyer acts on your behalf.

Likewise, in the appeal to the Supreme Court, the lawyer said, 'I don't normally do these, but I'll do it at a reduced fee.' It was a mistake on my part to accept that because I know now that, when you appeal to the Supreme Court, you appeal on every possible ground, but that did not happen. The judge in the Supreme Court, the Hon. Justice Timothy Anderson, for whom I have great respect, said during the hearing, 'It's possible to have another trial.'

The lawyer sat silent; he did not say a thing. If he had said at the time, 'My client has been disadvantaged because key evidence was not provided in the initial Magistrates Court hearing,' I am sure the judge would have granted a second trial. Then on appeal to the Full Court, the Full Court said, 'It's been looked at; we're not going to look at it.' End of story.

We do need mechanisms. I know my case is minor compared to more serious cases, but we do need a mechanism where issues can be reviewed. The introduction of new material has always been contentious. We know some of the more dramatic cases, like that of Timothy Evans in England, who was wrongfully hung and later pardoned. Well, that did not do much for him because he was wrongfully hung on the basis of an accusation of murder.

Mistakes can be made. I know from my experience, which was at a minor level compared with something like that, that things can go wrong with the system, so you do need a mechanism whereby things can be revisited, particularly if new material comes to light and there is new evidence. I commend the Legislative Review Committee on what they have done. I think all members should be now urging the government to modify our existing law to allow for a review of serious criminal cases.

Motion carried.

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