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The Hon Malcolm Mccusker AC CVO QC

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The Hon Malcolm Mccusker AC CVO QC The Second Flinders’ Symposium on Miscarriages of Justice ‘The Obstacles to Correcting Wrongful Convictions and the Need for Reform’ by Malcolm McCusker QC 24 November 2017 I am honoured to address you on this very important subject. As Dr Michael Naughton, founder of the UK Innocence Project, has pointed out, miscarriages of justice are not as rare or exceptional as some people may think. They are, he said, “systemic”. And, as Justice Cory of Canada has rightly observed: “A wrongful conviction is as much a wrong to the administration of justice and to our society, as it is to the individual prisoner. Wrongful imprisonment is the nightmare of all free people. It cannot be accepted or tolerated.” I have heard it said by some – including politicians – that the cases in which wrongful convictions have been reversed go to show that our justice system, for all its faults, is working. An astonishing, and as alarmingly complacent a comment, as that reportedly made by a Western Australian prosecutor, that “There are no innocent people in WA jails”. Those who think that don’t understand the enormous difficulties faced by those attempting to exonerate the wrongfully convicted, and the reality that, because of those difficulties, it is inevitable that some inmates of our jails have been put there (and remain there) through miscarriages of justice. True it is that the number of exonerations has increased in some countries, in the past few decades. In the UK, the Criminal Cases Review Commission (“CCRC”) (established in 1997 after the exposure of a series of wrongful convictions in cases such as the Guildford Four and the Birmingham Six) has had over 400 wrongful convictions quashed (including those of 4 hanged for murder)1. And in the USA the Innocence Project, through DNA testing, has achieved over 300 reversals of convictions, mainly for rape or murder. That says nothing, of course, of people wrongfully convicted of crimes where DNA samples have not been taken, or lost. In Australia we do not have a CCRC. Exonerations are dependent on Innocence Projects, run by volunteers and underfunded, or the assistance of determined supporters and pro bono lawyers. The odds are stacked against the unjustly convicted. How many victims of miscarriage of justice are in prison? 1 Bentley, Mattan, Kelly and Evans. 1 It is impossible to determine with accuracy what proportion of prisoners have been wrongfully convicted. Basing an estimate on the number of exonerations is obviously not reliable. In the UK it has been estimated that about 1% of all criminal convictions are the result of miscarriages of justice. As high as 5% has been suggested in the USA. In the 2006 report of a New Zealand Commission of Enquiry headed by Sir Thomas Thorp (who had been a crown prosecutor for 31 years and 17 as a judge) estimated that, based on UK experience, there probably were at least 20 innocent people in NZ prisons. If we apply that figure pro rata to Australia, that would mean that there were, over 10 years ago, between 80-100 victims of miscarriage of justice in Australian prisons. It is probable that the number is higher now. How do miscarriages of justice occur? The Innocence Project in the USA states that in its experience the main causes of the wrongful convictions were: Eye witness misidentification 235 cases – 72% Improper forensic evidence 154 cases – 47% False confessions 88 cases – 27% Informants and jailhouse confessions 48 cases – 15% Those percentages are based on revelations of wrongful convictions (mainly for rape and murder) through the use of DNA. At the “Symposium on Wrongful Convictions” held at Flinders University in November 2014, Dr Rachel Dioso-Villa set out a “repository of wrongful convictions in Australia”, listing 71 known wrongful convictions between 1922 and 2015, and the causes, or contributing factors. They included not only the above, but “police misconduct”, jury prejudice, inadequate investigation and incompetence of counsel. To that I would add “tunnel vision” of investigators. I shall begin by stating what I believe to be some of the reforms needed if our criminal justice system is to improve the chances of preventing or correcting wrongful convictions. I shall then refer to some cases in which I have acted, and which exemplify ways that miscarriages of justice can happen, and the enormous difficulties faced in correcting them. Reforms Needed in Australia • A CCRC (or similar) should be established, along the lines of the UK model. David Hamer, in his thoughtful article “Wrongful Convictions, appeals and the Finality Principle: The Need for a CCRC” (2014 37 NSW Law Journal 270) makes a strong case for an Australian CCRC, with the power and resources to carry out necessary investigative work, full access to prosecution and police files, and the right to refer a case directly to the Court of Appeal. It is not uncommon, he notes, for the prosecution in the UK to concede, or not contest, referrals by the CCRC to the Court of Appeal in the UK. A CCRC could be established (if necessary through referral of powers) as one 2 Australian Commission. Alternatively, each State could have its own CCRC. To the suggestion that the expense would not be justified, there are two replies. First, the experience in the UK has shown that, without a CCRC, fewer unjust convictions will be revealed; and surely, we cannot refuse to establish a surer means of exonerating the unjustly convicted because it is “too expensive”? Secondly, there is no reason why a State CCRC could not be headed by a part-time Commissioner, with perhaps one or two full time staff, and the power to co-opt additional assistance as required. The cost could be minimised. A full time, standing Commission would not necessarily be required. • A statutory right to apply to a Court of Appeal for leave to appeal, based on fresh and compelling evidence that there has been a miscarriage of justice. The system of petitioning the Governor is entirely unsatisfactory and inappropriate and the decision to refer a case to the Court of Appeal should be a judicial, not a political process, which does not meet the essentials of a proper system of justice. Indeed, in submissions put to the South Australian Parliament to support the legislation enacted there, it was asserted that “The current system may not adequately meet Australia’s obligations under The ICCPR (International Covenant on Civil and Political Rights), which Australia ratified in 1980”. South Australia enacted such legislation, under which 4 appeals – Keogh, Drummond, Bromley and Van Beelen have so far been instituted. Mr Keogh, who will speak at this Symposium, unsuccessfully petitioned five times during the 20 years he spent in prison. When the appeal legislation was enacted, he applied to the Court of Appeal and, at last, won his appeal, based on expert medical evidence which totally discredited the evidence of the prosecution’s trial witness, Dr Manock, and which had been provided (to no avail) with previous petitions. Associate Prof. Bibi Sangha spoke about this legislation at the 2014 Symposium and will address you on its interpretation and development today. Drummond, decided in 2015 by the SA Court of Criminal Appeal, has produced some important rulings on the meaning of “fresh evidence” in the statute. The observations of Peek J. are of particular interest and significance. Referring to the High Court decisions in Mallard and Grey, he said that where there has been a failure by the prosecution to perform its duty of disclosure, that may of itself establish a miscarriage of justice. Tasmania has followed South Australia’s lead. One highly publicised appeal (by Sue Neill-Fraser) is presently part heard. Experience in those two States so far shows that the “floodgates” fear raised by some is baseless. I have long urged the adoption of such legislation in WA, and am now reliably informed that it is proposed to introduce a bill for similar legislation next year. Thought is being given to the threshold requirement of “fresh” evidence, that is, evidence which by reasonable diligence could not have been obtained before the trial: would it be just to a person claiming to have been wrongfully convicted, to exclude evidence not given at trial, but which the accused’s counsel, had he or she exercised reasonable diligence, could have obtained? • A forensic supervisory body, to ensure that forensic laboratories meet appropriate best practice requirements, with rigorous criteria, and a process whereby proposed expert 3 evidence is, before being given in evidence, subjected to peer review. Dr. Manock’s discredited evidence in Keogh highlights the need for such a body. (Bob Moles, in his book “Losing Their Grip” published in 2006, exposed the flawed “expert evidence which resulted in the wrongful conviction of Mr Keogh). Coupled with that, all experts should not only be given the Code of Conduct, but obliged to attend a seminar in which it is explained and emphasised that, whether called by prosecution or defence, they are independent, not advocates. • Much more difficult, and controversial, abolish trial by jury. I realise that this suggestion is unlikely to get overwhelming support, either politically or from the Criminal bar. (Michael Kirby, I know, favours the retention of jury trials. Whilst I respect his opinion, I do not share it). I will elaborate on this need for reform in our justice system later. • In the meantime – which may mean a very long time (if ever) - a statutory right to an accused person to elect for trial by judge alone. In WA, I know that a Private Member’s Bill is to be introduced for this purpose next year.
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