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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-06-22 Daily Xml
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CRIMINAL CASES REVIEW COMMISSION

Adjourned debate on motion of Hon. A. Bressington

That this council—

1. Calls on the Attorney-General to move at the next meeting of the Standing Committee of Attorneys-General that the Standing Committee commission an assessment of the value of a national Criminal Cases Review Commission empowered by legislation of participating jurisdictions.

2. Requests that Resolution 1 be forwarded to the Attorney-General.

3. Requests the Legislative Review Committee, in its inquiry on the Criminal Cases Review Commission Bill 2010, to also consider and report on—

(a) alternative approaches to rectifying any identified issues with the reprieve offered by section 369 of the Criminal Law Consolidation Act 1935 and the prerogative of mercy;

(b) the possibility of the establishment of a national Criminal Cases Review Commission as an alternative to a state based Criminal Cases Review Commission; and

(c) any other related matter.

(Continued from 8 June 2011.)

The Hon. S.G. WADE (16:46): I intend to speak ever so briefly on this motion because I anticipated my party's attitude to this motion in the consideration of the bill. The Liberal opposition certainly will be supporting the motion. We certainly think there is value in taking a number of approaches to consider the issue of criminal appeal reform. Obviously, we support the reference to the Legislation Review Committee to look at a criminal cases review commission and alternative approaches, as indicated in the second reading stage.

I think the proposal by the Hon. Ann Bressington that the matter be considered at the Standing Committee of Attorneys-General is a worthwhile proposal. It evokes the Canadian process whereby the federation (or the confederation, as it is in that context) is used as a structure within which appeals can take place. As I understand it, the federal Attorney-General has a particular responsibility in taking appeals from the state jurisdictions and therefore providing some appropriate distance from the state attorneys-general who might have been involved in the progress of the matters within their provinces.

We supported the bill, we supported the reference to the Legislative Review Committee, and we also welcome the next suggestion of the Hon. Ann Bressington that it be pursued at a national level. It may well be that there could be creative ideas coming from SCAG as well.

The Hon. R.P. WORTLEY (16:48): The motion proposed by the Hon. Ms Bressington at its heart seeks to have the Attorney-General raise at the next meeting of the Standing Committee of Attorneys-General an assessment of the merit of a national criminal cases review commission. As this motion seeks to have the matter of a criminal cases review commission discussed at the national level, it is appropriate to consider other states' experiences with similar bodies.

In 2003 the News South Wales government established an administrative innocence panel. It came to a sticky end. The cause was the Janine Balding case, which some honourable members may recall. Janine Balding was on her way home from work in Sydney's south when she was kidnapped, repeatedly gang raped and tortured before her killers left her to drown. The crime was so disturbing that the New South Wales government announced special legislation to ensure her killers will never be released.

Three men—Steven Jamison, Matthew Elliot and Bronson Blessington—were all given life sentences for the rape and murder. However, one of those men, Steven Jamison, continued to insist that he was not involved. When New South Wales established the Innocence Panel, he approached them to hear his case. However, the prospect of reopening the Balding case so appalled the New South Wales government that it suspended the operation of the panel. The responsible minister said:

I'm suspending the operations of the Panel, because I don't believe that there are sufficient checks and balances to protect anyone other than the applicant. That means the victim, their family, and the wider community. The Balding family has simply suffered long enough. I can't stand by and let other families suffer this too.

I wholeheartedly echo these sentiments: I cannot stand by and let other families suffer this, too. I feel this alone is compelling; however, it is also important to consider the experience in the UK. The proposed criminal cases review commission is, of course, based on the UK model. It is pertinent to consider the experience of the UK should this chamber want the state to be suggesting Australia consider a similar national body.

Firstly, the UK Criminal Cases Review Commission was only established after a formal royal commission exposed a significant and notorious number of wrongful convictions. There has been none such here. For the financial year 2009-10, the commission had a net expenditure of £6.66 million. It has a net equity of £-5.573 million. It has a support staff of over 110 people.

What are the results? With such a significant investment, one would expect the results to be quite stunning. According to its own website, as of 31 January 2011, it had dealt with 13,303 applications, of which 130 were ultimately upheld by the Court of Appeal, by which is meant that some convictions were put aside; in some cases, sentences were only varied. The numbers for each are not given. The raw figures are 130 out of 13,303—slightly less than 1 per cent. At what cost? At what human cost, considering the thousands of families no doubt affected by old wounds being reopened?

To conclude, I return to Ms Balding. This time her mother is quoted in a newspaper report from 2009. In 2009, some 21 years after the crime which ended her daughter's life, Mrs Balding and her family still faced the immeasurable pain of the almost annual threat of appeal by her killers. In Mrs Balding's words:

No more taxpayers' money should be spent on this, it was proven beyond doubt that they are guilty.

The government agrees with sentiments like these; hence it opposes the motion and urges the chamber to do likewise.

The Hon. M. PARNELL (16:53): The Greens support this motion. We supported the Hon. Ann Bressington's earlier moves to introduce a criminal cases review commission into the state, but we also appreciate that an important move like this does need to be based on the best evidence. We believe that we can learn from the experience in other jurisdictions.

We support both parts of the motion—the first part calling on the Attorney-General to take the matter to his colleagues at the Standing Committee of Attorneys-General. We also support that part of the motion that seeks to expand the current reference being considered by the Legislative Review Committee. We hope that both those things come to pass as a result of this motion and we hope that, as a consequence of either or both of those events, the legislation that we will eventually consider in this place is the best that it can be.

The Hon. A. BRESSINGTON (16:54): First of all, I thank the honourable members for their contributions and their support. As I expressed when summing up for the second reading stage of the Criminal Cases Review Commission Bill 2010, it heartened me to hear that the majority of members in this place have recognised the need for reform of the current petition procedure and the in principle support expressed for a criminal cases review commission.

I am keen for the Legislative Review Committee to inquire into the merits of establishing a national criminal cases review commission as an alternative to a state commission. As I have previously indicated, while I am committed to the establishment of such a body 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 am open to the view that the establishment of a national commission is preferable to each state establishing its own.

The reason for that is that it would be more cost-effective. From the information that I have received, I do not imagine that there will be thousands of cases before the Criminal Cases Review Commission that would actually lead to a full investigation and the due process of that particular body. Estimates here for South Australia are that we have perhaps 12 cases of wrongful conviction.

It would be more cost-effective to have a national body established that deals with these claims or allegations of wrongful conviction on a state-by-state basis. I recognise that it would not be a cheap exercise to set it up. We would have one set up here in South Australia that would maybe only need to convene once every 12 months. That would be a waste of money. That is why I believe that a national CCRC is the best way to go. I believe that would be better bang for buck than for each state to set up their own, and for South Australia to have its own as well.

Any potential drawbacks in establishing a national CCRC as well as the form that such a national commission could and appropriately should take is something on which I look forward to receiving the Legislative Review Committee's considered opinion.

The motion also adds to the terms of reference any other relevant matter, and I consider this necessary to enable the Legislative Review Committee to do a thorough and comprehensive inquiry and explore relevant matters not directly arising from the bill. One such possible line of inquiry may be what our obligations are under international law, specifically the United Nations covenant on civil and political rights to which Australia is a signatory.

Dr Bob Moles, a former law professor and founder of Networked Knowledge, and Ms Bibi Sangha, a Senior Law Lecturer at Flinders University, have in numerous submissions, articles and papers made clear that the structural impediments in our criminal justice system to the correction of wrongful convictions—which I outlined when introducing the bill—stand us in breach of the covenant, specifically the right to a fair trial and the right to an effective review of alleged wrongful detention.

Finally, this motion also calls upon the Attorney-General to move at the July meeting of the Standing Committee of Attorneys-General that the committee commission an assessment of the value of a national criminal cases review commission. Empowered by the legislation of participating jurisdictions, our Attorney-General will not be without friends when moving this motion.

As I have said previously, the Attorney-General of Western Australia is on the record as indicating his support for a national criminal cases review commission and, given that each state has the same structural impediments to which I have referred, convincing the remainder to at least assess the value of a CCRC would not be difficult. To give the Attorney-General sufficient time to prepare, I will move this to a vote today.

I would also like to pick up a point that the Hon. Russell Wortley made in his speech, that in Great Britain there were some 13,000 cases put to the CCRC there and, of those 13,000 cases, only about 130 actually lead to an investigation and perhaps an acquittal. So, he was right; it was about 10 per cent. That just goes to show that there is strict criteria in place for consideration for the investigation to continue on alleged wrongful convictions. The way it is run in Great Britain is quite effective and efficient, and the criteria is very strict and adhered to so as not to waste time and resources.

So, on the information that I have received, I believe that Great Britain's model is as close as we are going to get to something that is efficient and functional and that will serve the purpose. However, as I said, the Legislative Review Committee will make that assessment from the submissions it receives. With all that said, I thank honourable members and commend the motion to the council.

Motion carried.

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