Independent body needed to investigate miscarriages of justice

by Tom Mann

Channel 7 Today Tonight (Adelaide, 6 December 2011) highlighted the urgent need for a review of cases in which juries have reached a verdict based on suspect evidence. David Szach appeared on the program professing his innocence to the murder of lawyer Derrance Stevenson in 1979. After a 14-year prison sentence, and having passed a polygraph test, he has persisted in seeking a review of his case so that his name might be cleared. Attorney-General John Rau of South Australia, however, rejected Szach’s most recent plea to have his case reopened, despite the flawed nature of the evidence clearly raised by Szach in his petition, and supported by eminent scientists.

In the United Kingdom, the formation in 1997 of the Criminal Cases Review Commission (CCRC) to assess whether convictions or sentences should be referred to a court of appeal has led to 320 of 458 referrals (70 per cent) being quashed, including the overturning of 72 murder convictions.

In Australia, however, we have no independent body to investigate possible miscarriages of justice. In cases where new evidence has emerged or where evidence presented in the trial has been inaccurate, not fully disclosed or misinterpreted, our legal system is set up in such a way to disallow review of cases following an unsuccessful appeal.

What the CCRC has shown in the U.K. is statistically likely to occur here, given the origins and similarities of our legal systems. The least we can offer those who are wrongfully convicted for crimes they did not commit, is to provide an independent means of addressing a miscarriage of justice. At present, that cannot happen through the arbitrary decision of one person, usually, the Attorney General, who is more likely to be influenced by other factors, such as public sentiment, political pressure, cost, vested interest, and maintaining the status quo.

A re-examination of a number of high profile cases in Australia, nevertheless, has ultimately led to the exoneration of persons convicted for crimes they haven’t committed. In each case, the process, however, has been time-consuming, tortuous, legally demanding, and very costly, such as with the establishment of a Royal Commission. In addition it causes undue mental distress to all concerned.

The process often involves third parties to an extraordinary level, such as the galvanising of public opinion, petitions and media backing, to circumvent the constraints and rigidity of our legal system.  An opportunity for this process to occur openly, with facility and without bias, is through an independent statutory body, such as a South Australian Criminal Cases Review Commission (SAC CRC). South Australia could lead the way in forming a CCRC. It has about 12 serious criminal cases in urgent need of review.

The well-publicised South Australian Splatt case in Flawed Forensics: the Splatt Case and Stewart Cockburn demonstrates the need for a South Australian CCRC.

Edward Splatt was wrongfully convicted of the murder of Mrs Rosa Simper in her Adelaide home in 1977. A Royal Commission, lasting 14 months—the longest and most expensive in South Australia’s history—exonerated Splatt in 1984 after he had served six and a half years of his life sentence. With the closing of legal avenues, a Royal Commission would not have been established but for the exhaustive efforts of Advertiser investigative journalist Stewart Cockburn calling attention to the flawed nature of the case. The establishing of a Royal Commission, however, also depended on the winning of the State election by Labor, otherwise, Splatt would have languished in prison. If a fair and independent process of review had been in place as part of our legal system, Splatt and others would not have had to depend on support from the media and fortuitous circumstances.

The Splatt case exposed the flawed nature of the forensic system, which included the mishandling of forensic material collected by police at the crime scene, inappropriate methods and techniques used to examine that material by scientists and pathologists, and the improper presentation of that evidence in court. Although changes were made to the forensic system following the findings and recommendations of the Royal Commission there is a continuing need to be vigilant to avoid errors of presentation of forensic evidence, especially in circumstantial cases.

The cases involving David Szach, who was convicted for the killing of lawyer Derrance Stevenson, and Henry Keogh for killing his fiancée, are both in urgent need of review because of faulty forensic evidence presented by pathologist Colin Manock. The testimony by Manock in each case played a central part in the prosecution of Szach and Keogh. All attempts to address these potentially serious miscarriages of justice have failed with the Attorney General advising the Governor of South Australia not to grant a review.

The cases of Splatt, Szach, Keogh and others show that a Criminal Cases Review Commission is urgently needed to review all cases in which there has been a likelihood of miscarriage of justice and to refer these cases, if applicable, to a criminal court of appeal. The test of a just legal system is to recognise that mistakes do occur and that we have an independent and unbiased way to rectify those mistakes.

Tom Mann was a lecturer at the Roseworthy Campus (formerly Roseworthy Agricultural College) of the University of Adelaide for 20 years. He then spent eight months teaching English and Australian life skills to asylum seekers detained in the Woomera Detention Centre. His experiences have prompted him to write Desert Sorrow: asylum seekers at Woomera.

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