To give the right to appeal following fresh and compelling evidence seems a natural way of justice for someone convicted of a serious crime. But for South Australia it has taken more than forty years of contentious and high-profile cases to amend the legislation.
For these cases, the appeal court could not re-open the case and the High Court could not accept fresh evidence. The only recourse was to petition the Attorney-General who, for political or other reasons, refused to refer the case back to the courts of review.
The Australian Human Rights Commission (AHRC) stated in 2012 that those appeal provisions did not comply with international human rights obligations.
In an historic first for Australia, the South Australian Parliament passed a Bill on 19 March 2013 to provide the right to a further appeal in criminal cases in which legal avenues had closed following an unsuccessful appeal.
Dr Bob Moles, author and academic lawyer, first raised the idea of establishing a Criminal Cases Review Commission to examine cases of possible miscarriages of justice. Since 1997, the Criminal Cases Review Commission in England has referred 466 cases to the court of appeal resulting in 328 convictions being set aside.
Ann Bressington MLC (Member of the Legislative Council, Parliament of South Australia) backed Dr Moles and introduced a Bill to establish a CCRC for South Australia. After an inquiry by a Legislative Review Committee this was replaced by a Bill to establish a new right of appeal. An applicant must satisfy a court that the evidence is both 'fresh' and 'compelling'. She said in parliament, 'we have innocent people doing time for other people's crime ... it is just the right thing to do to make sure that justice is served, and that those people have a process by which they can appeal the conviction and introduce new evidence ... it shouldn't be a political decision at all.'
With the successful passage of the Bill through parliament, Ann Bressington commented, 'The most simple of tweaks to the law fixes this now and that's basically what amazed me with this - that it would be so simple.'
Michael Kirby, former Justice of the High Court of Australia, welcomed the legislation and said, 'I hope that the measure adopted in South Australia will be quickly considered in other Australian jurisdictions because the risks of miscarriage of justice arise everywhere and they need more effective remedies than the law of Australia presently provides.'
According to Dr Moles there are at least a dozen cases in South Australia alone waiting to be tested under the changes.
Henry Keogh, convicted for the murder of his fiancée, will be among the first to ask for an appeal under the new legislation.
Two other cases for appeal will be those of Edward Splatt and David Szach, both of which I have had an opportunity to examine and write up. Edward Splatt was convicted for the murder of an elderly woman in her Adelaide home and sentenced to life imprisonment. After Splatt had served six and a half years of his sentence, a Royal Commission, lasting 192 hearing days, exposed the flawed forensic evidence that led to his conviction. He was pardoned in 1984 but his conviction was not overturned.
David Szach was also sentenced to life for the murder in June 1979 of Adelaide lawyer Derrance Stevenson whose body was found in a freezer. Evidence relating to the time of death, and to the time that might have elapsed after death before the body was placed in the freezer, was presented at the trial by the forensic pathologist and later, 15 year after Szach's unsuccessful appeal, shown to be flawed by eminent forensic scientists.
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