A small step in legal reform, a giant leap for justice

In Szach's case, the pathologist's evidence, based on unsound scientific principles, together with improper police procedures used in the identification of Szach by a key witness, significantly contributed to the flawed evidence and to the miscarriage of justice. These flaws alone, proving the evidence at the trial to be non-probative, should have been enough to set the conviction aside, even where there was otherwise evidence of apparent guilt.

After a 14-year prison sentence, and having passed a polygraph test, David Szach persisted in seeking a review of his case. His efforts for more than thirty years have included a petition to the Attorney-General, but to no avail.

Miscarriages of justice like those of Splatt and Szach are likely to continue despite the best efforts to implement reforms such as developments in forensic science, better procedures for forensic scientists and police, and independent organisations to examine fresh evidence. Errors do occur.

What has not been acceptable in the past for those who have advocated a change in the legislation was the apparent lack of effort on the part of the legal system and others to redress those errors. By not re-examining likely cases of miscarriage of justice has given tacit approval of the status quo that wrongful convictions can stand. It has reflected on the moral capacity of our society to reform and to offer a more humane response.

As Michael Kirby said, 'The desire of human minds for neatness and finality is only sometimes eclipsed by the desire of human minds for truth and justice. There will always be a disinclination to reopen a conviction, particularly where it has been reached after a lengthy criminal trial and a verdict of guilty from a jury of citizens. Sometimes, however, that disinclination must be confronted and overcome with the help of better institutions and procedures than we have so far developed in Australia.'

Of interest now is how effective the 'tweak' in the law will be without the establishment of a Criminal Cases Review Commission. And how will it influence other states?