Inquiry into the Criminal Cases Review Commission Bill 2010
Australian Human Rights Commission Submission to the Legislative Review Committee of South Australia
25 November 2011
The Australian Human Rights Commission (the Commission) welcomes the
opportunity to make a submission to the Legislative Review Committee of South
Australia in its Inquiry into the Criminal Cases Review Commission Bill 2010.
The Commission is Australia’s national human rights institution and is
established by the Australian Human Rights Commission Act 1986 (Cth)
Under the AHRC Act, the Commission has functions in relation to the
promotion and protection of human rights, including those set out in the International Covenant on Civil and Political Rights (ICCPR). 
This submission considers the broad issues raised by the Bill. It does not
make a detailed analysis of each proposed provision. Nor does it make any
comment on the suitability of the proposed model of Criminal Cases Review
Commission as distinct from any other model.
The Commission supports, in principle, the formation of a body to review
potential miscarriages of justice and wrongful conviction in South Australia.
The Commission is concerned that the current systems of criminal appeals in
Australia, including in South Australia, may not adequately meet
Australia’s obligations under the ICCPR in relation to the procedural
aspects of the right to a fair
trial. More particularly, the
Commission has concerns that the current system of criminal appeals does not
provide an adequate process for a person who has been wrongfully convicted or
who has been the subject of a gross miscarriage of justice to challenge their
- The Australian Human Rights Commission supports the intention of the Bill to
establish an independent body with powers to investigate claims of wrongful
conviction and refer substantiated cases to the Full Court for
4 Article 14 of theInternational Covenant on Civil and Political Rights
The Commission believes that establishing a body to review alleged
miscarriages of justice and wrongful convictions would better protect the rights
of individuals in South Australia to a fair trial.
Australia ratified the ICCPR in 1980. Under the ICCPR, all of the States and
Territories of Australia have an obligation to protect individuals’ right
to a fair trial.
Article 14 of the ICCPR establishes certain procedural guarantees in civil
and criminal trials. Article 14 operates to ensure that no individual is
deprived, in procedural terms, of his or her right to claim justice.
- Relevantly, Art 14(5) of the ICCPR requires Australia to ensure
Everyone convicted of a crime shall have the right to his
conviction and sentence being reviewed by a higher tribunal according to
- The relevant procedural protections in article 14(5) of the ICCPR
- the right to a review of conviction and sentence on law and facts
- the right to introduce fresh evidence
- the right to a statement of reasons.
- Article 14(5) does not impose on States an obligation to provide more than
one level of appeal. However, where
the law does so, a convicted person is entitled to have effective access to each
level of appeal with the procedural
protections of article 14 applying equally at each level of
5 The application of
article 14(5) of the ICCPR in Australia
The United Nations Human Rights Committee (UNHCR) acknowledges that the
exact modality of review of criminal convictions will vary across jurisdictions
and legal systems. However, State parties to the ICCPR are under an obligation
to provide for the substantial review, by a higher tribunal according to law, of
both conviction and sentence.
This submission refers to the criminal law as it stands generally across all
State and Territory jurisdictions in Australia. Observations about the
procedures and processes of criminal appeal apply to South
5.1 Review of law and
(a) The law in
In Australia only appeals based on questions of law are heard as of
right. There is no general right to
appeal on questions of fact and leave is required for such an appeal to be
It is clear that where an appeal has been heard on its merits and a final
decision made, the matter cannot be
re-opened. There may be an
exception where there has been a denial of natural justice or procedural
The standard applied by courts in Australia for overturning convictions on
the basis of factual evidence is generally that the conviction is unreasonable,
unsafe or cannot be supported by the evidence or that there has been a
miscarriage of justice. In
making that determination, the Court must consider whether ‘it was open to
the jury to be satisfied beyond reasonable doubt that the accused was
guilty’ based on the
factual evidence available at the time of trial.
(b) International human
- The United Nations Human Rights Committee has found that review proceedings
that are limited to questions of law are in violation of article 14(5);
individuals have the right to review of law and facts by a higher
tribunal. This does not
entitle a convicted person to a factual retrial, but requires that the higher
tribunal evaluate the evidence presented at the trial and the conduct of the
(c) The law in
- In some jurisdictions in Australia, the appellate Court has a limited
ability to admit and consider ‘fresh’ evidence that has become
available between the conviction or the passing of sentence and the
appeal. Fresh evidence does not
include evidence that could have been available with the exercise of reasonable
diligence nor evidence that was reasonably available but not presented at
- Further, with the leave of the Court, a person may appeal their conviction
to the High Court. However, there are strict jurisdictional limits on the
evidence the High Court may consider. Pursuant to its designation as an
appellate court under ss 73-76 of the Constitution, the High Court has
held that it cannot receive fresh evidence. 
- The fairness of the rule prohibiting the High Court from receiving fresh
evidence has been questioned.  Speaking extra-curially, the Hon Michael Kirby has stated that the ability of a
convicted person to seek justice may be compromised by the rule prohibiting the
High Court from receiving fresh evidence.
[The prohibition] means
that where new evidence turns up after a trial and hearing before the Court of
Criminal Appeal are concluded, whatever the reason and however justifiable the
delay, the High Court, even in a regular appeal to it still underway, can do
nothing. Justice in such cases is truly blind. The only relief available is from
the Executive Government or the media – not from the Australian
(d) International human
Individual members of the Human Rights Committee have considered the extent
to which article 14(5) affords a right to review in circumstances where fresh
material evidence becomes available after the conclusion of the
- One member, when considering a legal system under which no retrial is
permissible and pardon remains the only recourse available for a convicted
person, even if fresh evidence conclusively shows that the conviction was
pronounced erroneously stated:
I feel obliged to express my concern
about legal systems under which no retrial is permissible and pardon remains the
only available recourse in such cases. For one thing, a retrial provides an
opportunity for the judiciary to re-examine its own conviction and sentence in
the light of fresh evidence and correct its errors. In my opinion, pardon being
the prerogative of the executive, the institution of retrial is essential for
the principle of independence of the judiciary. Furthermore, retrial ensures
that the erroneously convicted person is given an opportunity to have his or her
case re-examined in the light of fresh evidence, and to be declared innocent. If
he or she is innocent, it would be difficult to justify why he or she should
need to be pardoned pursuant to the prerogative of the
- A range of bodies in Australia have for a number of years supported the
establishment of a body to review convictions where new evidence, including DNA
evidence, becomes available and may establish a person’s
innocence. For example, in his
review of the operation of the NSW Innocence Panel, Professor Mark Findlay
It would be preferable for the Attorney General to extend
the role of the Panel in the direction of a wider Criminal Cases Review
Commission, as in the United Kingdom, or Miscarriages of Justice model as in
Scotland, to examine all cases of wrongful conviction of innocent people,
irrespective of whether DNA evidence formed part of the case... What Government
can do here, we advise, is to create a wider institutional framework that can
adjudicate on the innocence of claims brought before it and provide resources
for the appropriate testing of any such worthy
5.3 A right to
(e) The law in
- The final and last avenue of review available in Australia is via the
petition procedure. In each jurisdiction in Australia, a convicted person has
the right to petition for a review of or inquiry into their conviction. In most
jurisdictions, the petition is made to the Attorney-General to refer the
conviction to the Court of Appeal for review. This is the position in South
- In South Australia, the Court in Von Einem v Griffin and Anor found
that the decision to exercise the Governor’s discretion to refer a
petition to the Court is not subject to judicial review. The Court found that
the petition procedure:
does not create legal rights. A
petition for mercy directed to the Governor does not give rise to any legal
rights in favour of the petitioner. The petition assumes all legal rights have
- The decision in Von Einem has been distinguished in cases where the
petition was against a conviction under the Crimes Act 1914 (Cth). In Martens v Cth, the decision whether to exercise the discretion in
relation to a prisoner convicted with an offence under the Crimes Act was
found to be made pursuant to s 68 of the Judiciary Act 1903 (Cth) and as
such was amenable to judicial review under the Administrative Decisions
(Judicial Review) Act 1977 (Cth).
(f) International human
- The UNHCR has found that there is a right to reasons and to a written
judgment in an appeal and in a decision to refuse leave to
appeal. A decision to dismiss an
appeal without providing written reasons is a violation of the right guaranteed
by article 14(5).
6 Why South Australia
needs a body to review wrongful convictions and miscarriages of justice
The right to a fair trial is a key element of human rights protection and
serves as a procedural means to safeguard the rule of law. The right to a
fair trial includes a number of guarantees that apply whenever the law entrusts
a judicial body with a judicial task.
The current system of criminal appeals in Australia for a person who has
been wrongfully convicted or who has been subject to a gross miscarriage of
justice to challenge their conviction may not be fully compatible with the right
to a fair trial as set out in ICCPR article 14(5).
In the absence of a national body, the establishment of a South Australian
Criminal Cases Review Commission is one mechanism by which South Australia could
ensure compliance with international human rights standards.
7 The additional
procedure in NSW
The Commission notes that the Committee can also consider alternative
approaches to the issues identified concerning the criminal appeal procedures in
New South Wales has adopted an alternative approach. It is the only
jurisdiction in Australia with an additional review procedure.
Under the Crimes (Appeal and Review) Act 2001 (NSW), a person may
petition for a review of a conviction or sentence or the exercise of the
power. The Act sets out a
non-exhaustive list of factors to which the Governor or Minister may have regard
in considering a petition and requires that the Minister report to the Criminal
Division of the Supreme Court any action taken in relation to a
In addition, a person may apply to the Supreme Court for an inquiry into a
conviction or sentence. Again,
the Act sets out a non-exhaustive list of factors to which the court may have
regard in considering the
application. The court must
report to the Minister on any action taken in relation to a
Any inquiry into a conviction ordered pursuant to sections 77 or 79 of the
Act is conducted by a judicial officer appointed by either the Governor
or the Chief Justice. The
judicial officer must report on the results of the inquiry to either the
Governor or the Chief Justice and may also refer the matter to the Court of
Criminal Appeal for consideration of whether the conviction should be quashed or
for review of the sentence imposed on the convicted
 Including those set out in the International Covenant on Civil and Political Rights, (hereinafter ICCPR)
opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March
 Article 14,
 The Hon. A. Bressington, Criminal Cases Review Commission Bill, Second Reading Speech, 10 November
 ICCPR article 50, note
also that the United Nations Human Rights Committee examined the operation of a
law in force only in Tasmania in Toonen v Australia, Communication No
488/1992; UN No. CCPR/C/50/D/488/1992
 Leon R. Rouse v.
Philippines, Communication No. 1089/2002,
 Reid v. Jamaica,
Communication No. 355/1989, U.N. Doc. CCPR/C/51/D/355/1989 (1994); Henry v.
Jamaica, Communication No. 230/l987, U.N. Doc. CCPR/C/43/D/230/l987
 In Reid v.
Jamaica, Communication , the Court found that the complainant was entitled
to have access to a written judgment in all instances of appeal.
 Lynne Weathered, ‘Pardon
Me: Current Avenues for the Correction of Wrongful Conviction in
Australia’, Current Issues in Criminal Justice, vol.17 no.
2, 2005-2006, p207. See for example, Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53.
 Grierson v The King  HCA 45; R v Saxon (1998) 101 1 A Crim R 71; Re Matthews  VR 199.
 Pantorno; R v Saxon (1998) A Crim R
 See, Criminal Code
1899 (QLD) s 668E(1); Criminal Appeal Act 1912 (NSW) s 6; Crimes Act 1958 (VIC) s 568; Criminal Code 1924 (TAS)
s 402; Criminal Code of the Northern Territory of Australia s 411,
 M v The
Queen (1994) 181 CLR 487,
 Gelazauskas v
Lithuania, Communication No 836/1998, 17 March
 Perera v
Australia Communication No. 536/1993 28 March 1995
CCPR/C/53/D/536/1993. Although not expressly stated, it appears that this right
of appeal relates to factual evidence available at the time of
evidence’ is evidence that did not exist or was not available at the time
 See Ratten v
the Queen (1974) 131 CLR 510; R v Abou-Chabake (2004) 149 ACrimR 417; Lawless v R (1979) 142 CLR 659. See for example Criminal Code Act 1899 (QLD) s 678B; Criminal Law Consolidation Act 1935 (SA) s 337.
 Mickelberg v The
Queen  HCA 35,
Application (2001) 180 ALR 448, (Kirby J)
 Justice Michael Kirby,
‘Black and White Lessons for the Australian Judiciary’, (2002) Adelaide Law Review 195,
 L.G. v.
Mauritius Communication No. 354/1989, 31 October 1990.
 L.G. v.
Mauritius Communication No. 354/1989, 31 October 1990, Individual opinion of
Mr Nisuke Ando.
 See for
example, New South Wales Bar Association, Submission to Parliament concerning
the New South Wales Innocence Panel,13 July 2006; Australian Law Reform
Commission, Report 96, Essentially Yours: The Protection of Human Genetic
Information in Australia, Recommendation
 Finlay M, Review of
the NSW Innocence Panel, 2003,
 Criminal Law
Consolidation Act (SA) s 369.
 Reid v.
Jamaica, Communication No. 355/1989, U.N. Doc. CCPR/C/51/D/355/1989 (1994); Henry v. Jamaica, Communication No. 230/l987, U.N. Doc.
 Reid v. Jamaica, Communication No. 355/1989, U.N. Doc.
 Section 76.
 Section 82.