Miscarriages of justice

In the words of Justice Cory of the Canadian Supreme Court it is “the nightmare of all free people” to be tried and found guilty of a crime they did not commit.

A submission to the Australian Human Rights Commission based upon some 10 years of research and findings by Flinders researcher Associate Professor Ms Bibi Sangha and her research collaborator Dr Bob Moles, showed that the appeal laws in all of the Australian states and territories fell short of Australia’s human rights obligations.

That realisation in turn saw South Australia act to change the appeal law to create a new statutory right of appeal. It was the first substantial change to the criminal appeal rights anywhere in Australia in over 100 years.

Since that change to the appeal rights in May 2013, two cases in South Australia have had criminal convictions overturned. Particularly noteworthy was the case of Henry Keogh reviewed in December 2014, with his conviction for murder overturned after he had served 20 years in prison. The Court of Appeal judgment was based upon ‘recantations’ made by the principal expert witness to the Medical Board in 2004, a case in which Ms Sangha had acted as junior counsel.

Prior to the change in law, those convicted of a crime in South Australia had to apply to the State Governor for access to an appeal. The Governor would in turn refer the request to the Attorney-General, a government official appointed by the current political party in power. 

The Attorney-General would then review the case and determine whether an appeal should be granted. No reasons were given for the refusal to grant an appeal and no time-frame was imposed on the Attorney-General for the making of the decision.

The change to the statutory right of appeal now means that a person who believes they have been wrongly convicted of a crime can now appeal directly to a judge in the state appeal court. That judge now has the power to determine whether leave to appeal should be granted. Decisions on whether to grant an appeal are now reviewable by the Full Court comprised of three judges.

In November 2015, the parliament of Tasmania followed South Australia in enacting similar appeal amendment legislation. The Tasmanian Premier, the Attorney-General and several members of the parliament expressly acknowledged the research conducted by Sangha and Moles at Flinders, thanking them directly for the briefing and submissions provided to them that led to the change in the Tasmanian law.

The work of Sangha and Moles has seen the publication of a number of significant works. Together with Professor Roach (University of Toronto), Sangha and Moles are the authors of Forensic Investigations and Miscarriages of Justice (2010), Irwin Law, Toronto with a foreword by former High Court Justice Michael Kirby.

In September 2015, Sangha and Moles published Miscarriages of Justice: Criminal Appeals and the Rule of Law in Australia also with a foreword by Michael Kirby, and published by LexisNexis especially for legal practitioners. This much-needed text provides a critical review of the Australian criminal appeal rights and the need for further systemic changes

Not content with resting on their rather substantial laurels, Sangha and Moles continue their research with the aim of keeping the law relevant and fair.

Their latest work recommends the establishment of a Criminal Cases Review Commission (CCRC) in Australia based upon a similar Commission in the UK. Their calls for such a commission have been widely published in the media both in South Australia and nationally.

Their work has featured in 100 radio and television programs which are available from their Networked Knowledge website, which is one of the world’s leading web sites on the topic of miscarriages of justice.

 For more information contact Associate Professor Bibi Sangha