Calls for an Australian Criminal Cases Review Commission: An Interview With Former High Court Justice Michael Kirby

From Februrary 2022: 

Michael Kirby has recently completed a chapter for a Canadian legal publication, in which the esteemed former High Court Justice outlines the need for more thorough safeguards against unjust convictions in this country.

Within the chapter Miscarriages of Justice in Australia: Unfinished Business, Kirby explains that the criminal appeal process didn’t exist in the British justice system until the passing of the Criminal Appeal Act 1907 (UK).

This legislation was then mirrored in various Australian jurisdictions, including this state’s Criminal Appeal Act 1912 (NSW).

The former judge then goes on to question the interpretation of these laws as providing only “a single right to appeal”, as there is nothing expressly in the statute that stipulates that this limitation should apply.

So, while Australia legislated to establish a criminal appeal process, our nation has failed to take up the subsequent British practice of providing further guarantees against wrongful convictions. And Kirby asserts it’s about time this country considers doing so.

A body of experts

Established in March 1997, the UK Criminal Cases Appeal Commission (CCRC) is a statutory body responsible for re-examining criminal cases where people maintain they’ve been wrongly convicted or sentenced after they’ve already lost on appeal.

The CCRC is comprised of twelve independent experts who, unconstrained from court time limits, review disputed criminal cases, which are usually at the most serious end of the criminal spectrum, and subsequently send them back to the appeals court if they find reason to do so.

Over its time in operation, the UK CCRC has reviewed over 27,500 cases, with more than 700 being sent back to the courts. As of December 2021, 765 subsequent appeals had been heard, and of these CCRC recommended hearings, 535 appeals had been allowed.

New Zealand established its own Criminal Cases Appeal Commission in February 2020, while the Canadian government has recently completed an inquiry into creating its own commission, with its final report having be tabled. 

From the highest bench

Not only did Michael Kirby serve thirteen years as a High Court Justice, but he was also the President of the NSW Court of Appeal for the twelve years prior to being appointed to the top court in 1996.

And in his recent chapter on the issue of wrongful convictions, Kirby points to the initial application of Perth man Andrew Mallard for special leave to the High Court to show that even the most conscientious of judges can fail to pick up inconsistencies.

Sydney Criminal Lawyers spoke to former High Court Justice Michael Kirby about the issues that continue to prevail around wrongful convictions, the reluctance of NSW to follow other jurisdictions on permitting second and further appeals and the benefits an Australian CCRC would provide.

Mr Kirby, you’ve just written Miscarriages of Justice in Australia: Unfinished Business, which will appear as a chapter in a Canadian publication.

In the chapter, you outline that underlying the appeals process is the fear that innocent people could be incarcerated for long periods. But criminal law and forensic science have come a long way since criminal appeals were established. 

In your opinion, are wrongful convictions still the issue that they were a century ago?

In some ways, things haven’t changed. In some particular ways, they have changed for the better. For example, a century ago, it was common for serious crimes to be punished with the death sentence following conviction.

In those circumstances, if the death sentence were carried out, the legal process of appeal, which sometimes was invoked, was simply theoretical and useful as a precedent; but didn’t really save the life of the prisoner.

As you’ve also said, the introduction of detailed scientific research has led to forensic evidence that is available to test and examine the safety of a conviction.

There have been important cases where this was done, including that the case of Mr Button in Queensland, where they went back to the police station and found the exhibits.

They found the mattress on which a rape was alleged to have occurred and they found evidence of sperm, which was not that of the prisoner Mr Button.

It was the sperm of another person who was imprisoned, and that led to the discharge of Mr Button’s prison sentence and proceedings against the other prisoner.

So, mistakes happen. If it is a human system of justice, there will be mistakes. And against that risk you have to ensure that your institutions and procedures are the best reasonably possible.

In your recent chapter, you identify a number of continuing issues relating to the criminal appeals process in Australian jurisdictions such as NSW.

One of these is that the right to appeal, having been established via the statute, has been interpreted as bestowing only one right of appeal.

Why is this problematic?

The interpretation of the statute, which copied a British statute, was given this narrow construction by courts of criminal appeal, not only in Britain, but also in Australia.

It wasn’t a necessary interpretation, given the language that was used in the statute and given the purpose of the Criminal Appeal Act, which was enacted to protect against unfair or unjust convictions.

So, where evidence, especially forensic evidence, that may not have been around at the time of the original trial, becomes available, it ought to be possible, with leave of the court, to come forward and seek a second opportunity or even a further opportunity down the track.

But this idea upsets some people, who think there will always be doubts about every case and, therefore, you are only opening the door to endless appeals and it’s too expensive and too costly, so we shouldn’t allow it.

That’s just a different philosophy about wrongful convictions and how vigilant our society should be against the risk.

You also cite 2013 considerations of the South Australian Legislative Review Committee that made a number of recommendations regarding the criminal appeals process. One of these was to further inquire into the use of forensic evidence in criminal trials.

These days, the public tends to have a very optimistic opinion about the scientific evidence being presented in courts. Is there reason to doubt how reliable this sort of evidence can be?

It is true that generally the community will say that, if the scientists give an opinion that this or that evidence is not reliable, then that will be the end of it.

But, unfortunately, the knowledge about forensics and the development of scientific knowledge generally can sometimes cast doubts upon assumptions or beliefs, even orthodoxies that existed in earlier times.  That has been so especially in particular areas.

For example, hair analysis was thought for a time to be very reliable. If a hair was found at a crime scene, that was enough and you would finish the case because, if that could be tied to the accused, then that would be objective evidence and would mean that the charge was properly made out.

However, recent explorations of so-called hair analysis has cast doubt on whether that is, in fact, reliable. And that’s only one area. Even fingerprinting, which has been around for a century, is criticised in some quarters because of the doubts that can exist in reading the fingerprint.

Ultimately, you’ve got to get back to the fundamental principle of criminal law, and that is, that you don’t convict a person unless they’re proved guilty beyond reasonable doubt.

They don’t have to prove their innocence.  They merely have to establish a reasonable doubt in the testimony of the prosecution or the Crown. And, if they do that, they’re entitled to the benefit of that doubt and to be acquitted.

You further point to the mid-1990s case of Perth man Andrew Mallard who was wrongly sentenced to life imprisonment for the murder of a jeweller.

You sat on the initial High Court panel that rejected Mallard’s application for special appeal. A subsequent panel upheld his second application, and he was then acquitted.

Why do you raise this case as a warning for others?

I was a judge in the Mallard case, and, in the first application that came to the High Court, Mr Mallard got a perfect bench. He had Justice Toohey, Justice McHugh and myself. We would have been regarded as generally very careful and sceptical about some prosecutions.

But the argument that was advanced on that occasion by his counsel was essentially that Mr Mallard had been denied the opportunity to put lie detector evidence before the court. He claimed that such evidence, if it had been allowed, would have established that he was innocent.

Lie detector evidence has not been generally accepted in Australia, unlike the United States, and, therefore, that wasn’t a very persuasive argument.

But when he came up the second time, Mr Mallard had a completely different argument that was based on the analysis of the detailed facts by the very fine lawyers he briefed on the second occasion.

By analysing when Mr Mallard was discharged from the lockup in Perth City, when the murder of the jeweller took place, and when he was seen on a taxi camera doing a runner, those three integers could not be reconciled.

In other words, the objective evidence of when he left the lockup, and the objective evidence of when he did the runner, were not consistent with his being able to be in the part of Perth where the murder took place.

So, when that different argument was advanced the whole High Court, including myself, upheld the claim for special leave and upheld the appeal and set aside Mr Mallard’s conviction.

South Australia went on to establish a right to a second appeal, and Victoria and Tasmania have since followed suit. But in NSW, no such reforms have been forthcoming. What do you put the reluctance for change in this regard down to?

I don’t really know. You only have to say that the forces that favour finality in the criminal process have prevailed in NSW.

No system is perfect. And any system that allows review is going to turn up second opinions and doubts in many cases.

That is something that some people, including some judges and politicians who make our laws, think is not enough to set up a second right of appeal or a Criminal Cases Review Commission.

But in a number of jurisdictions now, as you’ve said, in South Australia, Tasmania and in Victoria, they have permitted a second appeal. On a couple of occasions, a second look at a case and new evidence on the second appeal, has cast doubt.

The proponents of the second appeal do not say that every case should have a second or a third or a fourth bite of the cherry.

But they do say that if the prisoner can bring along enough evidence to cast a serious doubt on the matter, they should at least have a right to argue a second appeal.

In some cases in South Australia, since that law was introduced, that has led to the prisoner succeeding on second appeal and being discharged from prison, sometimes after being there for fifteen or twenty years.

So that is a serious thing. I think it depends on your philosophy and your values as to whether you think that the risk of an occasional wrong conviction should be sufficient to allow a second appeal by leave or special leave of the courts.

And lastly, Mr Kirby, you just mentioned a Criminal Cases Review Commission. Consideration of a CCRC was why the 2013 South Australian Legislative Review Committee inquiry was originally established.

Criminal Cases Review Commissions operate in the UK and NZ, and Canada is also moving towards one.

Establishing CCRCs in this country is ultimately what you recommend as the way forward. How would such bodies operate?

The Criminal Appeal Act of 1907, which was introduced in Britain, was followed in Canada, New Zealand, Australia and other countries of the old British Empire. It was, in fact, a step forward to what the law then provided.

The earlier law didn’t then provide for the accused a true appeal. It provided to ask a judge to reserve a legal question. However, appeals on factual questions were not allowed in those days. The view of the jury was regarded as final, and that was often so in cases involving the death sentence.

A Criminal Cases Review Commission was first set up in the United Kingdom because they had a series of so-called Irish cases.

These cases involved people accused of being members of the Irish Republican Army being convicted, sometimes by special courts or tribunals, and, ultimately, many of these cases were disproved by testimony on the first appeal and many of the convictions were set aside.

That led to a concern that maybe the judges were overworked, that maybe they didn’t give enough attention to the details of the case, or perhaps they had a sceptical view about people who were accused of being members of the IRA, and therefore, something better was required.

That better system was introduced in the United Kingdom, and it involved a commission that would contain experts in forensics, and in other material, who would have more time to analyse the cases than the judges did.

I remember from my own time in the Court of Criminal Appeal. You would often be sitting there with seven or eight cases in the space of a day.

That made it difficult for the judges, however conscientious, to pick up the points, as I failed to pick up the inconsistencies in the Mallard case. And I was a very conscientious judge.

So, that is the system that has been introduced in Britain. It has now been copied in New Zealand, where making laws is much easier because they’ve got no federal system, and they’ve got a parliament which has only one house, and that means they can do things very quickly.

In Britain, they can also do things more quickly. But in Australia, we tend to be very slow in matters of law reform, and the idea of the Criminal Cases Review Commission hasn’t taken off in this country.

The Canadians were promised a Criminal Cases Review Commission by Justin Trudeau, the prime minister, in the last election.

The commission of inquiry that investigated the matter was headed by Justice Harry LaForme. Last week, they came out with a report that said Canada should also have such a commission to be named the Miscarriage of Justice Review Commission.

There was a provision in their report that I think would probably be controversial in Australia.  This was that it would allow the Criminal Cases Review Commission to set aside convictions.

The British system requires that the commission reports to a court.  Then the court sets aside the conviction because a court implemented the conviction.

I think that would be the kind of Criminal Cases Review Commission that we would have in Australia.  Not one that allows officials to set aside the decisions of judges and juries; but one requiring judges do the final step. That would be what I would favour.

Such a commission is needed due to the number of cases that are occurring and the belief that we are sometimes making too heavy demands on the judges to get to the bottom of the detail of the facts and the evidence.

That is something for which you need people with experience, talent and with more time. That is what the Criminal Cases Review Commission system is intended to introduce.

Photo credit: Sasha Hadden