Do We Need a Body to Review Dodgy Convictions?

You know you’re innocent – but can’t afford to pay for an appeal, or you’ve lost your appeal after spending everything you have on lawyers.

What next?

Sadly, your options are limited in Australia – and you will probably have to serve out your sentence.

However, there has been a push in recent years to form a Criminal Cases Review Commission (CCRC), which could provide hope to those who have experienced a miscarriage of justice.

Modelled off the United Kingdom’s CCRC, the Commission would have the power to independently review cases and, where a miscarriage of justice is identified, refer the matter back to court with a recommendation for the conviction to be quashed or the sentence to be reduced.

The CCRC has had great success in the UK, where referrals to the Court of Appeal have resulted in 328 convictions being overturned between 1997 and 2013.

In 2010, there was an inquiry into whether a CCRC should be established in South Australia.

That proposal was eventually scrapped – but new legislation was introduced instead, allowing for a second or further appeal in circumstances where new evidence came to light.

While the SA reforms were a positive step forward, many have argued that there is a need for a national CCRC in order to promote access to justice.

Why Do We Need a CCRC?

According to several bodies including the Australian Human Rights Commission, the Australian Lawyers Alliance and the Law Council of Australia, recent cases involving miscarriages of justice demonstrate a strong need for a specialist body to review potentially wrongful convictions.

Those organisations put forth a number of reasons why the general appeals process in Australia is inadequate.

They highlight the fact that the bar is set high for appellants, who bear the onus of proving that ‘the conviction is unreasonable, unsafe or cannot be supported by the evidence, or that there has been a miscarriage of justice’. This, they point out, can be difficult given financial constraints and evidentiary hurdles.

Sadly, many are simply unable to obtain legal representation at all, especially those who fall into the ever-growing “justice gap”- being ineligible for Legal Aid because they do not meet stringent “merits” and “means” tests, but at the same time cannot afford private legal representation.

That problem can be compounded by strict deadlines for the filing of appeals and supporting materials.

Appeals from the Local to the District Court must be filed within 28 days, or up to 3 months with the permission of the court.

A Notice of Intention to Appeal must be filed within 28 days for appeals from the District to the Supreme Court, and the formal Notice of Appeal must be filed within 6 months. Deadlines for the filing of supporting materials follow these dates.

Many defendants are simply not able to afford to pay lawyers in time to meet these deadlines, and may be left without legal representation.

The people most at risk of wrongful convictions in the first place are the same ones that are least likely to be able to afford appeals – the vulnerable and disadvantaged.

It has been suggested that these barriers are contrary to our obligations under international human rights treaties, including Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which states that:

‘everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’

The United Nations Human Rights Committee has expressed the view that Australia’s appeal system, which in many situations only allows for appeals on questions of law, not fact, is in breach of Article 14.

The case of Susan Neill-Fraser

Those who call for an Australian CCRC draw attention to a number of controversial cases, including the case of Susan Neill-Fraser, who has fought fruitlessly over the years to have her conviction overturned.

In 2010, Neill-Fraser was convicted and sentenced to 23 years in prison for the murder of her partner, Bob Chappell, whilst cruising on their yacht on Australia Day 2009.

The conviction was based largely on circumstantial evidence – Chappell’s body was never actually found, and Neil-Fraser has always vehemently maintained her innocence.

The case has been described by legal experts as ‘the worst miscarriage of justice in 40 years,’ after it was revealed that forensic examiners failed to properly consider DNA evidence located at the scene; which may have proved her innocence.

Neill-Fraser sought an appeal but was denied in both the Court of Criminal Appeal and the High Court. She now faces 23 years in prison for a crime she may not have committed.

Her supporters argue that if a CCRC existed, she would have a further avenue of review.

Whether or not Neill-Fraser will ever have her appeal heard remains to be seen – but talks of a national CCRC provide some hope to those who have been wrongly convicted.