SUSPECT CONVICTIONS AND A CRIMINAL CASES REVIEW COMMISSION – MICHAEL KIRBY

Justice Michael Kirby AC CMG is an international jurist, educator and former judge. It is his view that an Australian Criminal Cases Review Commission is needed due to the number of cases of suspect convictions occurring and that sometimes that demands are too heavy on judges to get to the bottom of the detail of the facts and the evidence. Such a body – the UK Criminal Cases Review Commission (CCRC) – was established in March 1997 in Britain. New Zealand established its own Criminal Cases Appeal Commission in February 2020, while the Canadian government has completed an inquiry into creating its own commission. To discuss the issue, The Hon Michael Kirby addressed The Sydney Institute on Wednesday 21 August 2024.

SUSPECT CONVICTIONS AND A CRIMINAL CASES REVIEW COMMISSION

MICHAEL KIRBY

I would like to start, as has become customary in our country, by acknowledging the Indigenous people and the wrongs that have been done to them, including by the law. And it is about wrongs in the law that we are gathered here together tonight. To talk about how we can deal with wrongs.  And whether we should put in place institutions and principles so that can prevent wrongs from occurring in the first place.

Fridays were a very busy day for me in the Court of Appeal when I was a Judge of the Supreme Court of New South Wales. Because Friday was the day on which I would depart the work of the court on civil cases and sit in the Banco Court.  This is one of the biggest courtrooms in the law courts in Sydney. It was where I would sit in criminal appeals. I was normally presiding because I was President of the Court of Appeal.  If the Chief Justice was not presiding it would usually fall to me.  I therefore had the responsibility to make sure that the case moved through its paces quickly; and that the judges in the Appeal Court were assigned to write the first drafts of the several decisions in the lists. That would be their duty after the completion of the oral argument. For most of the week, I was dressed in black robes.  However, on Fridays I dressed in bright crimson. These were the traditional judges robes for criminal cases. And even if I say so myself, we all looked pretty magnificent there sitting in our red robes; dealing with the cases. But the question that is lurking in the back of my mind is, were we magnificent? We looked magnificent.  But appearances and reality can sometimes be different in the law.

Now, in Australia, in recent years, we’ve become much more conscious of miscarriages of justice. This is a subject that I’ve written about on a number of cases and a number of occasions in law journals. It’s therefore one that I feel is within my competency.[1]  I hope you will find my views of value and interest.

The cases of miscarriages of justice are not all big and famous cases. They are sometimes cases which are not known generally.  A number of them tend to get known in the legal profession, because it is always troubling to come to a conclusion that the way a case was decided in our legal system was less than perfect.  The case of Mrs Lindy Chamberlain. The case of Mrs Folbigg.  The case of Andrew Mallard in Western Australia.  The Eastman case in Canberra, the Button case in Queensland. These cases are all illustrations of suspect cases.  They are cases in which observers called them “suspect”.  They were suspected (or even sometimes clearly demonstrating) that a serious miscarriage of justice had occurred.

An interesting case was that of Mr Frank Button.[2]  He was convicted of rape. He always protested his innocence.  Ultimately, the matter got to the Court of Appeal of Queensland. By reason of his protests, and support he gathered in the Council for Civil Liberties in Queensland, Mr Button got somebody to go to the police headquarters, where they had kept a portion of the mattress that the offence was alleged to have occurred on. The mattress, or a piece of mattress, was still there. It bore the semen of the alleged rape, which Mr Button had always denied was his. By reason of advances in DNA technology, somebody thought to put the semen on the mattress to a DNA test.  The DNA test came up negative to Mr Button.

Subsequently, the real offender was identified. Mr. Button went to the Court of Appeal of Queensland and Justice Glenn Williams, a very fine judge in Queensland, began his reasons for judgment: “Today is a very bleak day for the justice in Queensland.  But we can correct it.” And so, after spending time in prison, Mr Button was exonerated. His appeal was allowed.  His conviction was set aside.  He was set free. I don’t know whether he received monetary compensation that often happens in these cases.  Yet long years in prison are difficult to compensate adequately in terms of money.  Vindication and public exoneration are precious beyond price.

So, these are the cases. When one is sitting in a court of criminal appeal, you have to decide the case.  You do so amongst lots of other cases some only of which are listed on that day. Judging is not an ordinary job. It is a very responsible job.  The people who are engaged in the job, in my experience, are generally very serious about their duties. They sometimes have different approaches.  And different values. But our judges are not corrupted.  They are serious, and they are professional about how they go about things. Being human, they sometimes make mistakes.  Mistakes of law; mistakes of fact; mistakes in understanding the evidence or the argument.  To be human is to err.

There were two cases in the recent collection that I myself participated in before the High Court of Australia.  One of them was the case of Mallard v The Queen.[3]  Mr Mallard was a person with bipolar disorder who lived in Western Australia.  He was charged with murdering a Perth jeweller, Mrs Lawrence.  She was killed in her jewellery shop in a suburb of Perth. Mr Mallard was interviewed by the police as a suspect.  He was very happy to cooperate. As is not uncommon apparently with people who suffer from bipolar disorder, he wanted to help the interrogators. And so, he went into a great deal of very detailed evidence about how, if he had been the person who committed the crime, he would have gone about doing it. That evidence was sufficient to persuade the police that this man was the offender. So, they carried the conversation on.  They recorded it and they charged him.  He was tried. He was represented in his trial.  But he was convicted.

Mr Mallard then took an appeal to the Court of Appeal of Western Australia.  He lost. He then sought special leave to appeal to the High Court of Australia. I was then a member of the High Court. In that court we just wore ordinary black robes. They were not magnificent.  They were rather like “Christian Brothers modern”.  They were designed at the request of Sir William Deane, who knew all about Christian Brothers outfits. They swept away the glorious crimson robes of the British Empire.  We were dressed in plain, unadorned, cotton robes.  But we were in the final national court of Australia.  We had the last word in the cases that came before us.

Mr Mallard drew a dream team. The three Justices of the High Court who heard his application for special leave to appeal were Justice Toohey, Justice McHugh and myself. We were three judges who were inclined to be attentive to, and supportive of, prisoner appeals. And, therefore, Mr Mallard’s counsel advanced his case. However, the barrister then appearing for him urged that the special leave should be granted to Mr Mallard because, despite his request, he had been refused provision of a lie detector in the trial in Perth. Now, in Australia, we don’t have the same faith in lie detectors as they have in the United States.  Therefore, that was a hopeless argument. It didn’t make any progress. And Mr. Mallard lost his appeal.  He went back to prison.  He served a further 12 years of imprisonment.

However, Mr Mallard had a supporter in the media in Western Australia. That reporter never gave up and kept urging Mr Mallard’s innocence. Ultimately, the matter went back again to the Court of Appeal of Western Australia. However, that court refused to disturb the decision. Then it came back again to the High Court of Australia.

I was in my chambers on a Sunday night, as usual, reading my special leave books for the coming week. There in the application book, I thought to myself, I think I’ve sat in this case.  I think I know about this case. Then I did something which is readily available.  I looked up the Commonwealth Law Reports.  They include a list of the earlier special leave applications. They have a list of the judges who sat in those special leave applications.  And also, what was the outcome? So, there I was with Justice Toohey, Justice McHugh, and we had refused special leave to Mr Mallard.

I immediately called for the transcript. I sent a message to the Registrar of the High Court to inform the parties that I had sat in an earlier application. Justices McHugh and Toohey had retired. I was the only one left.  So, I didn’t feel I should sit in the matter. But what did the parties want to say about it? They came back and said, “Oh no, no, please do not go; we were very happy for you to sit.” Two very good, new barristers then appeared for Mr Mallard. One was Mr Malcolm McCusker QC,  a most experienced Queen’s Counsel who later became the Governor of Western Australia.  The other was Mr James Edelman, who had been an associate of Justice Toohey. Indeed, he was later to be appointed a Justice of the High Court of Australia himself. He’s sitting on the High Court now.  The law is a rather small community.

The new barristers were ruthless in their examination of the detail of Mr Mallard’s case. Detail is what really matters in most cases, especially criminal cases. Mr Mallard, on the second occasion, was granted special leave to appeal on the case presented by his new counsel: without the argument about the lie detector being mentioned at all. His new counsel had an entirely different approach. They simply looked at objective evidence. And the objective evidence showed that Mr Mallard had been released from the Perth lockup at a certain time.  He then did a “runner” from a taxi at a certain time.  And there was no time between those two times,  objectively recorded, for him to get to the suburb in Perth where Mrs Lawrence was killed. Still less to commit the brutal murder. Therefore, objectively and incontestably, Mr Mallard was not guilty. Certainly, his conviction was suspect. Yet he had then served some 12 years more by reason of my earlier order and the order of the other Justices of the High Court, refusing him special leave to appeal. Such a discovery does not happen often. But when it does, it is a terrible blow to the Judges dedicated to law and concerned to be instruments of injustice: unintentional of course, but an injustice none the less.

So, Mr Mallard’s appeal was upheld.  He was discharged.  He received quite a lot of money from the government of Western Australia. But what happened showed that even a judge who was serious and conscientious, as I always was, can make a mistake. And why is that? Because the busy Judges don’t generally have time themselves to set up an entirely new hypothesis of the case.  They cannot organise witnesses and get people to analyse the transcript completely afresh and to follow new leads. The Judges have to rely on the barristers to help them with that. So, Mr Mallard won his appeal.  But it left a really serious thought in my mind.  That I had been a party to injustice.  And that is something that is disturbing to any human being.  Particularly to a conscientious Judge

Now, the other case in which I was involved was that of Mrs Folbigg. Mrs Folbigg was tried in New South Wales for the murder of her children.  In her case the deceased were not one, not two, not three, but four of her children who had died. The question was, was she guilty of murder? Mrs Folbigg’s case was complicated by the fact that she kept a very detailed diary. When it came to the fourth, or maybe the third, child who had died, she telephoned her husband and said, “It’s happened again”. So, the question was: was there some innocent explanation? A woman would not ordinarily murder three or four of her own children. Yet the statements in Mrs Folbigg’s diary were inculpating. They cast doubt on a hypothesis of innocence.

When Mrs Folbigg’s case came to the High Court of Australia, the court was affected by the expert testimony that had been given at the trial.[4]  This suggested an expert approach encapsulated in a supposed rule that the death of one child can be a tragedy, the death of two children could be coincidental, but by the time you get to three children or four children, it looks like murder.  That was what the judges below in Mrs Folbigg’s case had decided. However, by the time she ultimately got to a review of her case. Mr Folbigg had new scientific evidence: evidence of genetics that appeared to indicate that with her particular genetics, the explanation that she offered could have provided an innocent explanation. Although that approach was not accepted by the High Court special leave bench it was ultimately accepted. It was accepted by the former Chief Justice of New South Wales (the Hon. Thomas Bathurst AC KC) in an independent judicial inquiry. Mrs. Folbigg was discharged; but not before a very long period had been served in prison.  Nowadays scientific expert evidence favours the conclusion that Mrs Folbigg had not murdered her children.  They had died as a result of genetic defects.  The deaths were coincidental for the very reason that the genetic flaw causing death had been passed by the mother to all of the children concerned.

When I went back to look at the judges who had sat in Mrs Folbigg’s case, I found there it was: I was one of those who sat in the case.  The moral of the story is therefore that our system of criminal justice may be very serious and very painstaking.  However, it can make mistakes. Now are these mistakes simply the inevitable mistakes of a human system with all the imperfections of human beings?  Or is it a systemic or institutional fault that needs to be corrected and prevented from causing injustice.

When I sat on Fridays in the Court of Criminal Appeal, it was a very difficult and hard day for us all. In my time, there were generally two appeals against conviction with very big appeal books; and three appeals against sentence, with not so big appeal books; but detailed enough. There were written submissions of great length, and argument of considerable length, trying to persuade the court to the different submissions of the contesting counsel.  At the end of the day, I would hold consultations with my colleagues to assign responsibility for writing the judgment for the Court, if we were unanimous as usually we were, “Well, I’ll do number one, you do number two, you do number three, I’ll do number four and number five”. The presiding judge generally had to do more than the other judges.  All of their work had to be done in the course of weeks where the judges had so many other appeals, including civil appeals or trials.  It was a very busy life with great consequences hanging on the judicial decisions. Every one of them.

And this feature of the current appellate system lies at the heart of the problem of our current arrangements.  I refer to the burden of getting through your share of the cases that are listed for your hearing.  The burden is sometimes intolerable and often crushing. If you are conscientious, as most judges are, it takes up a great deal of time, energy and thought.  You have to get the reasons out reasonably quickly, or you forget one case.  With delay, the memory of a case is swamped by the details of different later cases. I’m talking to you now very personally and very truthfully about a matter that concerns a person with the responsibility of the judicial office. It is addressed to the methodology of how we normally decide criminal appeals. And whether that methodology is incompatible with the old principle expressed by the common law: that our legal system would rather have 100 people who are guilty go free than one person who is innocent being condemned to punishment. Is that, in truth, what happens?  Are the scales truly balanced so heavily in favour of the prescription of evidence?

Well, in some cases it may be.  But this is not universally the truth. And this is why in recent literature, including in an excellent article that I wrote in the Criminal Law Journal, two questions have been raised as to whether we can improve our system; whilst leaving its basic features very much in the same state.

One of the two methods that have been proposed for improving things is to provide for a second right of appeal. This is to cover the case where fresh and compelling evidence is later discovered so as to permit a person to come back to the Court of Criminal Appeal and secure a further opportunity of having the matter reconsidered by three judges. In Australia, we have not generally allowed in the past for two appeals. Essentially, the convicted offender will you get one bite at the cherry.  Then you just have to serve your time. Further complaints will then generally be of no avail.

However, in recent times, starting in South Australia (as many reforms in the law do) a change in the law was adopted to permit a second appeal. That reform was quickly copied in Tasmania.  It was then copied in Victoria, and in Western Australia.  However, it hasn’t been copied in New South Wales. So, the matter that concerned me, when I was writing any article, was: what’s so good about New South Wales that it’s different from the other States where they permit you to come back if you have new and compelling evidence?  So that has been the first change that has been suggested.  If they are better in New South Wales, why would this be so?

The second change is a change that was adopted in the United Kingdom in 1997.  That change was to establish a Criminal Cases Review Commission.^[5]  The Criminal Cases Review Commission is made up of 12 commissioners, in Britain, and a staff of 70.  They have the obligation of considering submissions and arguments and investigating alleged cases of miscarriages of justice and looking freshly after a Court of Criminal Appeal has completed its task and refused relief to the prisoner.

The change ultimately happened in England in 1997 because the 1970s, and 1980s had seen a large number of so-called “Irish cases” in which miscarriages of justice were later undoubtedly demonstrated. The courts had refused relief; but in some cases a lingering concern persisted. That led to disquiet about the system in Britain.  The answer to that disquiet was the creation of a commission for suspect criminal appeals – a Criminal Cases Review Commission. The British reform was copied, first, in Scotland.  The English reform was then copied in Scotland. It was then copied in New Zealand. It was then copied in Canada.

Although a similar institutional reform in Australia has been urged in Australia by the Human Rights Commission, because of perceived defects in the current system, such a body hasn’t been established in Australia. It hasn’t been established in a single State of Australia. So, the question, again, is posed – what’s so good about our experience in Australia that we don’t think it’s necessary to have a Criminal Cases Review Commission? A Criminal Cases Review Commission has been successful in other similar jurisdictions in discovering cases of miscarriages of justice in about three per cent of the cases that it hears. That has led to convictions being sent back to the Court of Criminal Appeal with the report of the Criminal Cases Review Commission. The final decision remains to be decided in the judicial branch.  However, they then have the benefit of a commission report which can include experts in DNA and other forensic skills that judges, of their training and experience, will not necessarily have or even see as critical.

So that is what has been suggested.  It is what has been done in Britain, in Scotland, in New Zealand, in Canada; but not in Australia. The question that is therefore presented is, what is the reason for this reticence on Australia’s part, on the part of lawyers and politicians in Australia?

One reason for reticence in Australia is the tremendous faith in the jury.  This arises from the belief in the capacity of 12 citizens to decide such serious matters correctly and generally unanimously. My brother David Kirby was a judge of trial in the Supreme Court of New South Wales. He sat in very many cases of murder. He presided in very many murder trials.  That was very hard work. The judge must keep every detail of the case in their mind. In some ways this judicial task is harder, I respectfully think, than being a Justice of the High Court.  By the time a case gets to the High Court, many very clever people, and sometimes more, have had the case before them.  They have had responsibility for the outcome of the procedures.

However, there is a great tendency towards faith in the jury sometimes bordering on the mystical.  My brother David says, only once in all the years he was a judge of trial, did he disagree with a jury verdict. That’s a pretty strong statement about the faith that we can put in the jury system if it is representative of the high measure of trust in the criminal jury. However, the jury system is not perfect.  That is something that was demonstrated in the Pell case,[6] and in the Mallard case and in the Folbigg case. It is not perfect. Still, is it the best we can do for the money we have got? Should we simply say, well nothing’s perfect.  We do as well as we can. This response has lasted for hundreds of years. So should we stick with what we’ve got and not worry too much about the further possibility of undetected miscarriages of justice.  Is that simply inevitable in the fallibility of any human system of justice?

Such a response is all very well if you’re not sitting in a prison cell, complaining in your own mind, conversing constantly with yourself and saying, “Why am I here? Why am I here for so long? Why will no one listen to me? Why will no one pay attention to my complaints of innocence.” In many cases, no one will secure the type of evidence that was found in the Button case, in the Mallard case, and in other cases that led to the exoneration of people in earlier times under current arrangements.  Are those arrangements adequate?  Do we need more avenues of appeal and review?  Or is this a quest for the illusion of perfect justice or an expensive quest searching for a more perfect system?

The problem reviewed in this talk is one spoken from the heart.  From inside the judicial boiler room.  From the very centre of the judicial branch of government.  From the decisions of very conscientious people. These are inherently difficult problems to resolve.  Presently, they are resolved against the background of a system that puts great faith in the jury and great faith in the capacity of the jury. Relying on their perception of the conduct and behaviour and appearance of the accused person, or of the witnesses against the accused person, to result in the conclusion that has such a lengthy and devastating effect on the lives of those who receive it.  It is a tribute to our society that we continue to puzzle over allegations of suspect convictions.  That we continue to puzzle over institutional and legal ways that we can adopt to undertake these most important tasks of our legal system better.  New arrangements and institutions have been adopted elsewhere.  But the question is whether these reforms are needed in our own jurisdictions.  And if not, why not?

[1] M.D. Kirby, “A new right of appeal as a Response to Wrongful Convictions: Is It Enough? (2019) 43 CrimLJ 299.

[2] R v Frank Alan Button [2001] QCA 133.

[3] (2008) 232 CLR 397.

[4] See Folbigg v The Queen [2005] HCA Tran 657 (2 September 2005) per McHugh ACJ, Kirby J, Heydon J.

[5] Criminal Appeal Act 1995 (UK).

[6] Pell v The Queen [2020] HCA 12; 268 CLR 123.