Tasmanian Attorney General the Hon Vanessa Goodwin is making good on her promise to introduce legislation to amend and improve the Criminal Code to enable persons convicted of serious crimes further right to appeal their convictions. On the invitation of the Justice Department, Andrew L. Urban provided the following comments on the draft Bill (on April 8, 2015, prior to the April 30 deadline). It is published here for the record.
The following statements exemplify the general principles that propel these comments and are offered as the legal and philosophical context in which the comments are made.
“… the prospect of an innocent person being convicted of a serious crime represents a catastrophicfailure of the legal system.”
– Lord Igor Judge PC QC, Chief Justice of England and Wales (2008 – 2013)
“It is better than ten guilty persons escape than that one innocent suffer.”
– Sir William Blackstone KC SL, English jurist & judge (1723 – 1780)
“There is no principle of finality. If it is thought that a mistake may have been made, the public interest demands that it be put right … the principle of finality has no place in the criminal law, not in our system.”
– Professor Graham Zellick, CBE, QC, Past Chair, Criminal Cases Review Commission, UK.
UNSAFE CONVICTION – A COHERENT DEFINITION:
… OR … new evidence … OR ….
Professor Zellick (see above) gave a speech at the Medico-Legal Society in 2010, reported in the Society’s Journal (Vol. 78 Part 1) in which he said: “…my working definition of an unsafe conviction is not a ringing declaration of innocence but something much more prosaic: a conviction is unsafe where there has been some legal, procedural or evidential irregularity which brings the validity or legality of the conviction into question, or where the irregularity or new evidence or argument is such that the jury might otherwise have returned a different verdict.”
Professor Zellick, drawing on his years of experience as Chair of the UK’s CCRC, goes on to articulate the three most relevant elements that can cause a miscarriage of justice, an observation that is perfectly relevant to the Bill:
* “Sometimes the new evidence is so compelling that the conviction has no chance of surviving. In other cases it will be much more a matter of fine judgment.
* Secondly, there is procedural or other irregularity or mistake of law which leaves a doubt about whether the jury’s verdict would have been the same without the error. This covers such things as a misdirection by the judge, the admissibility of evidence that should have been excluded or non- disclosure of evidence. There are even instances where in law the facts don’t constitute the offence charged or there is some statutory bar on prosecution which has been disregarded.
Obviously these are all things that ideally ought to have been picked up much sooner and certainly by the time of the original appeal, but it doesn’t always happen.
* Thirdly, there is serious irregularity constituting what is called an abuse of process or resulting in a trial falling short of the basic standards of fairness”
COMMENT ON DRAFT LEGISLATION:
Question to consider:
Does the proposed Bill foresee all possible circumstances where an unsafe conviction is claimed by the appellant, and fresh and compelling new evidence is not available but such irregularities at trial can be demonstrated, which require the conviction to be quashed or a new trial ordered?
It is summed up in the question: did the accused have a fair trial? To be logically complete, the proposed Bill must address the broader question, beyond the matter of fresh and compelling evidence, as outlined by Professor Zellick.
The rules governing prosecutorial duties:
In a circumstantial case of murder where a person is missing but no body has been found, no murder weapon presented in court and no witnesses, the prosecution speculates how the accused committed a murder and further speculates how the accused disposed of the body. The prosecutor then adds that the injuries to the body would have been indicative of an attack by a friend not a stranger.
To make such claims without any proper evidential basis is clearly contrary to law as was stated by the Chief Justice of NSW in the 2012 Gordon Wood appeal. There is no rationale for the requirement of ‘fresh, compelling new evidence’ to consider the conviction unsafe.
The special rules applicable to circumstantial cases
In a circumstantial case, a person cannot be convicted unless the fact of their guilt is the only rational explanation of the circumstances. The law says that if there is a single rational explanation of the facts, other than the guilt of the accused, then the person cannot be convicted.
In a circumstantial case of murder where a person is missing but no body has been found, no murder weapon presented in court and no witnesses, the trial judge tells the jury that the missing person had not committed suicide, had not had an accident, had not disappeared – without evidentiary basis.
The wrongful exclusion of those possibilities would warrant the conviction be set aside, without need for any new evidence.
The law relating to expert opinion evidence:
In criminal trials the general position is that witnesses are not allowed to express “opinions”. An exception is made for the opinion of an expert. The requirement is that the opinion must be relevant to the resolution of some fact or issue in the case. It must also be necessary to assist the jury to understand the evidence. It must be based upon “specialised knowledge” which is the product of “training, study or experience”.
In a circumstantial case of murder where a person is missing but no body has been found, no murder weapon presented in court and no witnesses, a forensic pathologist is asked whether a person could be killed by a blow to the head with a metal tool.
The evidence of the forensic pathologist would be inadmissible because
a) an expert is not allowed to give an opinion where the jury would already know such things from their own experience;
b) an expert is only allowed to give an opinion where it assists the jury to interpret evidence which has been or will be put before them in the course of the trial.
In such a case, where expert evidence is shown to be inadmissible but was admitted, no fresh, compelling new evidence is required to conclude that the conviction is unsafe.
(Likewise in such a case if a forensic scientist presents evidence that is inadmissible (for whatever reason, such as testing that is not conclusive or correct but presented as such (viz Lindy Chamberlain case), and it was admitted.)
As seen from just the above few examples, circumstantial cases pose a special hazard for the justice system – where very specific rules apply for the very reason that convictions must be made as safe as possible.
It is for primarily – but not exclusively – these reasons that the Comment Author urges the addition of a provision in s.4 to the effect that:
“The single judge or Full Court must grant leave to appeal by a convicted person if satisfied that a conviction is unsafe where there has been some legal, procedural or evidential irregularity which brings the validity or legality of the conviction into question, or where the irregularity or new evidence or argument is such that the jury might otherwise have returned a different verdict.”
And in (6) the addition of
(c) after taking into account legal, procedural or evidentiary irregularity, there has been a substantial miscarriage of justice.
To restrict the ambit of the Bill to new evidence and exclude other appropriate grounds for appeal – ‘legal or procedural irregularities’ – would make it incomplete in its intention to reveal and correct miscarriages of justice.
I respectfully suggest the description be duly amended to reflect the inclusion of all possible grounds of appeal, to read:
CRIMINAL CODE AMENDMENT (SECOND OR SUBSEQUENT APPEAL FOR LEGAL, PROCEDURAL OR EVIDENTIARY IRREGULARITY) BILL 2015
Footnote: the Justice Department expects the final Bill to be introduced to Parliament before the end of September 2015.