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Truth or lies: overturning wrongful convictions

A person is wrongly convicted of a serious crime, then fresh evidence reveals they are, in fact, innocent. It’s a thriller movie formula and you’d hope that if this were to happen, justice would prevail…

The reason few errors are discovered is that it’s so hard to identify them. Image from shutterstock.com

A person is wrongly convicted of a serious crime, then fresh evidence reveals they are, in fact, innocent. It’s a thriller movie formula and you’d hope that if this were to happen, justice would prevail.

A bill introduced to the New South Wales parliament earlier this month, however, jeopardises this very process. It aims to abolish the DNA Review Panel, which is empowered to arrange fresh DNA analysis of defendants convicted of very serious crimes who claim to be innocent. The panel could then refer cases back to the Court of Criminal Appeal (CCA). Currently, the bill abolishing the panel looks likely to pass.

The DNA Review Panel should be replaced with a Criminal Cases Review Commission (CCRC) with the powers and resources to effectively uncover wrongful convictions.

During its six-and-a-half years of operation, the panel received about 30 applications, but made no referrals to the CCA. The NSW government has taken this as a sign that wrongful convictions simply don’t occur in NSW. But this is a dubious conclusion; inevitably, errors are made.

It’s true that relatively few wrongful convictions are discovered in Australia – Lindy Chamberlain, the Mickelberg brothers and Andrew Mallard are a few rare examples. But this shouldn’t be taken to mean that Australian criminal justice makes few mistakes. The reason few errors are discovered is that it’s so hard to identify them.

A criminal conviction is very difficult to dislodge. At trial, the defendant is presumed innocent. But the appeal court will presume the convicted defendant to be guilty, and therefore be reluctant to overturn the jury verdict.

There is an assumption that the jury of 12 is better suited to fact-finding than a bench of three or five appeal court judges. It would be undemocratic for the appeal court to intrude upon the domain of the jury – the “constitutional fact-finder” – and the appeal court will also be reluctant to give encouragement to appeals, and create too much work for itself.

After appeal, it is even harder to overturn a wrongful conviction. Traditionally, the defendant may petition the Crown for mercy or a referral back to the appeal court. However, this is not a task the government is well suited for, as political considerations inevitably intrude.

Consider the ongoing Tasmanian case of Susan Neill-Fraser, convicted for the murder of her husband and the subject of the documentary Shadow of Doubt. The film makes a strong case that the evidence against Neill-Fraser was severely flawed, and that there are other highly plausible explanations for what may have happened to Neill-Fraser’s husband.

And yet, even though Neill-Fraser is educated, articulate, well-resourced, and has the assistance of family and supporters, she still cannot get the Tasmanian government to refer the case back to the appeal court.

After appeal, it is even harder to overturn a wrongful conviction. AAP/Criminal Court of Appeal

In recent decades, some jurisdictions have established alternative post-appeal mechanisms. England, Scotland and Norway have Criminal Cases Review Commissions. NSW has its DNA Review Panel. And South Australia recently introduced a further appeal on the basis of “fresh and compelling evidence”. But in NSW at least, the eligibility requirements for application to the Panel are exceedingly narrow. Defendants could only apply if they had been convicted of the most serious offences, and their conviction was prior to September 19, 2006.

Further, the defendant must specify the biological material for testing. How is an innocent defendant supposed to know enough about the crime and the investigation to be able to satisfy this requirement? Of course, relatively few crimes other than sexual assaults and crimes of violence where identity is in issue would generate useful DNA evidence, let alone evidence that had been gathered and preserved. So it’s not surprising the DNA Review Panel achieved nothing.

In NSW, wrongfully convicted defendants may also seek to get their cases back before the CCA, by application to the Supreme Court. But the Supreme Court has indicated that it will require something pretty extraordinary to make a referral. As the Supreme Court told serial killer Ivan Milat, it:

…is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted.

A dozen convictions were overturned on subsequent appeal in the first years of the 21st century in Australia, but these were virtually all cases of police corruption uncovered by the Wood Royal Commission. Other than that, referrals to the appeal court and quashed convictions are extremely rare.

Besides police corruption, there are many other causes of wrongful conviction: biased or incompetent experts, prosecutorial misconduct, lying witnesses, mistaken eyewitnesses, ineffective defence counsel. But there is no mechanism for investigating these possible causes. The burden is placed on the defendant to do the work, yet how is the defendant, in prison, without resources or skills, meant to carry this burden?

Lindy Chamberlain is one of the few Australians to have her wrongful conviction overturned. AAP/William Carroll

This is why the new South Australian appeal provision, established in May 2013, is unlikely to achieve anything. It has been wrongly described as a new “right of appeal”; but there is no right. The appeal court’s permission is required, and the court can only give permission if it thinks there is “fresh and compelling evidence” of innocence.

How is a wrongfully convicted defendant, in prison and with few resources or skills, going to discharge this burden? The South Australian parliament patted itself on the back for this reform, quoting a letter from former High Court Justice Michael Kirby, who described it as:

…an instance of…principle triumphing over complacency and mere pragmatism.

But it is difficult to see this reform giving much hope to the wrongfully convicted.

The new South Australian law came out of independent MP Ann Bressington’s bill to establish a CCRC. The state government rejected it, and South Australian attorney-general John Rau claimed:

South Australia is not Texas. This state is not awash with wrongful convictions and the falsely imprisoned.

But since the original bill proposed an English-style CCRC, England would have provided a better comparison. With the establishment of the English CCRC, the quashing of convictions jumped from four or five a year to 20 or 30. The reason for the increase is that the CCRC is equipped with the resources and powers to investigate potential wrongful convictions.

Previously, many wrongful convictions remained hidden, just as they are in Australia today. And the English CCRC has the respect of the Court of Appeal, and is perceived by the British government as good value for money. Earlier this year, it passed its Triennial Review and received a budget increase.

Australian governments should stop pretending wrongful convictions don’t happen here. Instead, they should recognise that they are an inevitable byproduct of criminal justice, and set in place an effective and fair mechanism to deal with them.

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44 Comments sorted by

  1. Jack Arnold

    Polymath

    Thank you for an interesting article that opens a can of worms exposing the imbalance between a citizen and the overwhelming power of the state in criminal matters.

    Perhaps one of the longest state sponsored persecutions was of Raymond John Carroll who was tried five times for the murder of baby Deidre Kennedy in 1973. This process included acquittal on appeal of the first charge of murder found by a 1985 jury. A second charge of perjury in 2000 again acquitted on appeal and a final DPP appeal…

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    1. Jack Arnold

      Polymath

      In reply to Jack Arnold

      Oops ... I should disclose that in 2003 I wrote an Honours thesis on this matter and the consequences that is available at the Law Library, University of New England, Armidale NSW.

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  2. Trevor Kerr

    ISTP

    Chapter 11 of Kathryn Schulz's 'Being Wrong' is an extensive, and worrying, analysis of this subject.

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  3. Jack Arnold

    Polymath

    Then there is the English case of the 1991 racist street murder of Stephen Lawrence. In a racist response, the London Metropolitan Police bungled three investigations resulting in the long and detailed MacPherson Report which exposed systemic racism in UK government departments and delivery of social service policies plus the dismissal of key police officers for incompetence.

    Finally the dogged parents received justice when a special investigation team was assembled and used new DNA technologies to discover evidence resulting in the conviction of the offenders ... after more than 18 years political agitation by the dogged parents.

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  4. Greg North

    Retired Engineer

    Sometimes a bit of perspective is required and whilst no one would want to see an innocent person found guilty of any crime, the balance of that occurring and the number of guilty people that never see justice because of the difficulties of prosecution might be an alarming revelation.
    Chopper Read for instance on his death bed claims to have murdered four people, crimes that if he was guilty of and found as such in the justice system, he would have likely have still been in jail for.
    " There is…

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    1. Allan Gardiner

      Dr

      In reply to Greg North

      Greg, since it is deemed by some [not me] that juries are better suited than jurists to decide on matters of fact, these juries are then -- ipso facto -- considered by these others to be more *competent* for the task, 'experts' if you like, so the authors' [David's and Gary's] "biased and incompetent witnesses" can be taken to include all juries also, as they are forcibly placed to witness most of the proceedings in the court and the case being put before it.

      So, one cannot simply say, as you have, that from "biased and incompetent witnesses", no mention has been made of juries' *incompetencies*, for they are just as guilty of being equally incompetent about matters of fact as is any man or woman in the street, from whence they [juries] came.

      Wrongful convictions obtain due to the involvement of incompetent juries.

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    2. Tom Fisher

      Editor and Proofreader

      In reply to Allan Gardiner

      I dare suggest, Allan, that juries are rendered incompetent by the evidence presented to them, nothing more nor less.

      As I wrote earlier on the extent to which indictment sheets are edited and rewritten at length as prosecutors work at trying to make an argument stick, so the argie-bargie over what evidence is to be presented to the court regardless of how tainted or irrelevant it might be, and what is to be withheld or struck off as inadmissible no matter how clear and relevant yet later destroyed…

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    3. Allan Gardiner

      Dr

      In reply to Tom Fisher

      Tom, if you know that someone is honestly looking for bona fide evidence, it's so easy to make sure that they find some that looks like it's kosher, and it's just as easy to arrange it that they don't find a skerrick. It's merely a case of knowing how to do it and having the incentive to do so.

      I would not trust any jury to make a competent decision, even if they were provided with ALL the evidence. Jury members, police, prosecutors, and even jurists, are not fungible. Police officers wear a uniform…

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    4. Tom Fisher

      Editor and Proofreader

      In reply to Allan Gardiner

      Well, mentioning more names now that I said I would not do here and will not; suffice to say that at the time the WA police force was being reshaped into a "service" to the public with a new hierarchy and opportunity for advancement, rewarding ambition; in the outcome said ambitious following the 79 Division blokes to Claremont and arriving late told them to f*ck off guys we'll take it from here, then blew it.

      And with Rayney on trial by judge alone even with imported, independent Brian Martin…

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    5. Paul Prociv

      ex medical academic; botanical engineer at University of Queensland

      In reply to Tom Fisher

      I'm afraid I must side with Allan Gardner here. While never experiencing the pleasure or privilege of serving on a jury, a very close friend of mine has, and later told me all about it (without giving me any idea of the specific identities involved). In a serious and apparently straightforward case, he was the only one of the 12 jury members to take detailed notes (he was a trained scientist). When the jury was deliberating, most of its members were driven mainly by emotion, ignoring much of the…

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  5. Jack Arnold

    Polymath

    "I think the basic issue is the complacency of the Anglo Common Law adversarial system which at first glance seems to be "a fair fight of equals" but in fact is not fair because an individual is rarely if ever as well resourced as one which is backed by a whole range of a governmental resources which tend to have greater credibility eg. See Lord Denning's comments re accused IRA appellants and far and away greater access to expertise.

    I'm not able produce actual figures but I'm sure the Civil…

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  6. Lindsay Nicholson

    lawyer artist

    In discussing why an appeal court might not allow an appeal against a conviction, the authors opine that "the appeal court will be also be reluctant to give encouragement to appeals, and create too much work for itself." This is a very significant claim. It is difficult to interpret the authors' intention in any way other than to accuse appeal court judges of laziness. If this is what is intended then I would seek some attempt to support such a claim.

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    1. David Hamer

      Associate Professor of Evidence and Proof at University of Sydney

      In reply to Lindsay Nicholson

      That is not at all what we are suggesting. The NSWCCA, like most institutions, simply has limited resources. It does not have the capacity to manage any significant increases in its workload. It operates on the basis that only a limited proportion of convictions generate appeals. You might want to consider the work of Nobles and Schiff on how a concern with efficiency impacts on the appeal hierarchy: ‘The Right to Appeal and Workable Systems of Justice’ (2002) 65 Modern Law Review 676.

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    2. Lindsay Nicholson

      lawyer artist

      In reply to David Hamer

      I will certainly look at that piece and thank you for the recommendation. I appreciate that articles in the Conversation do not lend themselves to citations but the absence of any reference to a source can lead to the wrong impression. Maybe there is a middle path?

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  7. Anthony W Collins

    Lawyer

    R v Button [2001] QCA 133 was a case where DNA evidence was used on appeal to quash a wrongful conviction. The case a unusual in that the trial proceeded before the DNA analysis was performed.

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    1. David Hamer

      Associate Professor of Evidence and Proof at University of Sydney

      In reply to Anthony W Collins

      Yes, I think that may be the only one in Australia. Sometimes too much focus is given to DNA as a means of correcting wrongful convictions. It certainly has potential for sexual assault and other offences of violence, and has led to hundreds of exonerations in the US. But DNA is not always preserved, and with many offences it is not relevant. In England the Criminal Cases Review Commissions have corrected hundreds of wrongful convictions, but only a couple have been on the basis of DNA evidence.

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    2. Anthony W Collins

      Lawyer

      In reply to David Hamer

      The advantage of DNA is that it can be used to prove innocence, particularly where that has been an incorrect indentification. This can happen when the investigators target the wrong suspect. For a review commission to work it would need to analyise the investigation. Sometimes the investigators will jump to a conclusion and build a case around it. There is a world of difference between proof and belief.

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    3. David Hamer

      Associate Professor of Evidence and Proof at University of Sydney

      In reply to Anthony W Collins

      Yes, DNA does provide far greater certainty than most other forms of exonerating evidence. Perhaps someone else confessing to the offence might provide a similar level - depending on the reliability of that confession. Perhaps the most powerful exoneration evidence is in a murder-disappearance case where the 'victim' reappears.

      An underlying issue here is whether at this post-appeal stage, the conviction can be quashed only with proof (to some level) of the defendant's innocence. Or whether it can be quashed simply because the conviction appears unsafe. This is the legal innocence versus actual innocence issue, and there are arguments either way.

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    4. Anthony W Collins

      Lawyer

      In reply to David Hamer

      I suspect that the notion that an accused is assumed to be innocent has been eroded. It is often said that an acquited person 'has been let off'. The presumption of innocence means very little when a jury sees an accused person standing in the Dock for the first time. The first question they ask themselves is "I wonder what he's done?".

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    5. Allan Gardiner

      Dr

      In reply to Anthony W Collins

      It's not unusual at all, because when you have these situations where the convicted persons have already served lengthy terms of imprisonment, especially those terms served in full, then the punishments have been served, rightly or wrongly, so it then doesn't matter to any large degree in the eyes of the law or the courts, because it's a fait accompli. So, by commencing an appeal without doing something even very important like a DNA analysis well beforehand, it predicts that the wrongfully/rightfully convicted person is about to be acquitted, in the hope of then making everyone happy with the result. It's really no different to having an each-way bet on a two horse race.

      Many people have known for quite some time that what happened to John Button stinks, but that is unfortunately the very best that a putative justice system like that which operates in Western Australia has ever been able to serve up to innocent people like John Button and Andrew Mallard.

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    6. Allan Gardiner

      Dr

      In reply to David Hamer

      David, it might be very good idea to elide the letter 'C' [representing 'Criminal'] altogether from the acronym and title of these Commissions, especially since it's now been proven that in many [even one is two too many] cases these Commissions are dealing with innocent persons who have never actually committed any crime. The term 'Criminal' as applies to the reviewing of these said cases is a veritable misnomer, unless of course it is but to refer to the act of these innocent persons being wrongfully…

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  8. Rene Oldenburger

    Haven't got one

    I like to ask a question to some of the posters who seem to have experience in criminal law and it sort of touches the subject of the article.

    I will stick with the basics:

    Can someone be legally detained, charged and arrested for Unlawful Threats towards politicians and public servants, when an email send to Government Ministers contains the statement "You will be given two weeks to response, otherwise material that has been collected ( including evidence that a Police Complaint wasn't investigated…

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    1. Rene Oldenburger

      Haven't got one

      In reply to Rene Oldenburger

      BTW, the charge was Unlawful Threats towards politicians and public servants

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  9. Tom Fisher

    Editor and Proofreader

    The defendant presumed innocent at trial may well stand in theory but rarely in practice, partly because courts of law in this country are as rarely as independent as they are made out to be, and partly because of unrelenting political and media pressure.

    A normative society is not the same thing is not the same thing as a common law jurisdiction in which citizens are required to be reasonable with one another, but free to castigate anybody at all emerging from what is considered beyond the Pale…

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    1. Jack Arnold

      Polymath

      In reply to Tom Fisher

      A good contribution to the conversation Tom.

      Consider the following events that occurred to a family member in Sydney.

      Person parked family car legally in a car park, backs out safely between a Police car and a victim who had been pursued for over 2km by that Police vehicle. The family car is driven safely and properly by a sober driver for 2km at the speed limit. The Police vehicle abandons the victim vehicle to pursue the family car with sirens blaring, lights flashing, at speeds exceeding…

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    2. Rene Oldenburger

      Haven't got one

      In reply to Jack Arnold

      File a police complaint first

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    3. Jack Arnold

      Polymath

      In reply to Rene Oldenburger

      Thank you Rene, it is always wise to have Police investigating Police. It ensures that the evidence is discredited, witnesses are verbaled and alternative defences constructed out of nothing ... from hard experience.

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    4. Allan Gardiner

      Dr

      In reply to Jack Arnold

      Perhaps the family member may choose to bide their time and deal with the matter and the two police officers concerned, or some of their fellow officers, in a manner just as illegal as that which was served upon this family member by the two police officers. It wouldn't be the first time that this has occurred when police officers have broken the law and think that there will be no retribution. I seem to recall one Edward Kelly as knowing exactly what to do in such circumstances, and he even took pains to see that the thrust of his grievances got to feature in a very famous letter.

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    5. Rene Oldenburger

      Haven't got one

      In reply to Jack Arnold

      Jack, I totally agree and fully understand, I also posted an example what can happen to people when they file Police Complaints.

      Lucky I used to be in a Government position where I also had to investigate complaints and I'm fully familiar with the entire process.

      Thing is, just let them do it, let them discredit it, let them verbal witnesses

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  10. Colin MacGillivray

    Architect, retired, Sarawak

    Two cases in New Zealand- Arthur Allan Thomas and David Bain, both wrongly convicted and imprisoned, involved very dubious police procedures. In the former planting a cartridge case, in the latter destroying evidence soon after the first trial.
    Police want a conviction and the case closed and sometimes do whatever it takes to convict the suspect. Unfortunately police don't very often get prosecuted and jailed for wrong conduct.
    It would change the culture of police work if they did.

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    1. john button

      justice campaigner

      In reply to Colin MacGillivray

      Regardless of the difficulties and time it may take one must keep pushing for justice, otherwise we are condemning our children and grandchildren to a legal system that does what it wants; because it can.
      I was convicted in 1963 for a murder I did not commit and took 40 years to clear my name; I am still fighting for justice. I was given an ex gratia payment, without an apology, on one hand and had my pension halved on the other. unfortunately once the police officers involved retire they can not be touched for any improper conduct or worse.

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    2. Allan Gardiner

      Dr

      In reply to john button

      John, although the persons involved with your wrongful conviction and sentencing may never be properly held to account, it will only be a matter of time before those persons who now involve themselves in attempting to get innocent persons wrongfully convicted are properly held to account, as they should be, and not all of them get to enjoy a lengthy retirement just as they may like it to be.

      Marcus Einfeld, whilst serving as a justice of the Federal Court of Australia, did what seems to be his…

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    3. Jack Arnold

      Polymath

      In reply to john button

      "[O]nce the police officers involved retire they can not be touched for any improper conduct or worse."

      Consider the case of a woman arrested for assault Police for defending her friend during the arrest of the friend on another matter. Once in the Armidale Police cells a verbal altercation with Police resulted in a senior HIghway Patrol Officer (HPO) physically assaulting her by punching her to the ground and while on the ground. The entire matter was recorded on CCTV. The woman accepted an…

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    4. Allan Gardiner

      Dr

      In reply to Jack Arnold

      Resignation alone is generally perceived, unfortunately, as being punishment enough for what in many cases are very serious crimes carried out whilst still in office, so perhaps it's time for some new legislation to be enacted preventing anyone from being able to retire until such time that the matters are dealt with according to law, as doing such would help to keep things in a very clear perspective for all of those persons concerned.

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  11. Robert Moles

    Academic lawyer

    David and Gary cover a number of important issues which I agree with. However there is one point with which I disagree with. They say the new South Australian appeal provision
    "has been wrongly described as a new 'right of appeal'; but there is no right. The appeal court’s permission is required".
    If the requirement for leave means that there is no 'right to appeal' then that means that the only right of appeal in criminal cases in Australia is on a point of law in respect of an initial appeal…

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    1. David Hamer

      Associate Professor of Evidence and Proof at University of Sydney

      In reply to Robert Moles

      Appeal legislation does draw a distinction between appeals as of right, and appeals for which leave is required. The distinction can be significant. Consider the HCA's special leave hearings, or a case like Picken <http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2007/319.html>;. This is not to say that leave will necessarily be refused arbitrarily, but this does form another obstacle to the overturning of wrongful convictions. The size of the obstacle is, to a large extent, in the appeal court's discretion. I hope Bob is right that, with the new SA provision, it is a 'mere technicality'. I think this remains to be seen.

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    2. Robert Moles

      Academic lawyer

      In reply to David Hamer

      David, my note on bypassing the leave to appeal stage in respect of the new appeal provision in South Australia was based upon the following:

      In the parliamentary debate on the Bill, it was said that:

      The bill would allow the Supreme Court to eliminate a step from the criminal appeal process. Currently the appellant must convince a single judge that their case has merit. If successful, the appellant then argues their case before the Court of Criminal Appeal – so, that is three judges. The…

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    3. David Hamer

      Associate Professor of Evidence and Proof at University of Sydney

      In reply to Robert Moles

      Thanks Bob. I was aware of some of this, though there wasn't really room to explore it fully in the Conversation article. But I still maintain that there is a difference between the two types of appeal - those as of right, and those where leave is required. The court may run the leave hearing together with the substantive appeal for the sake of efficiency (rather than out of respect for the defendant's rights). But even if there is no separate leave hearing and the court goes to full argument the distinction remains. If the court decides against the defendant, it may choose to do so in a cursory way, without full reasons, saying leave is denied. If there was a right to appeal - appealing on the basis of error of law rather than error of fact - the court would give more detailed reasons. The defendant with a right of appeal is in a stronger position. If there was no distinction, why does the legislature make some appeals as of right and others only with leave?

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    4. Robert Moles

      Academic lawyer

      In reply to David Hamer

      David, I didn't mean to suggest that there was no distinction between the two. There clearly is an important distinction. Indeed, if the appeal court hears arguments on the merits and then dismisses the appeal on the basis that leave is refused, then that might infringe the ICCPR which states that written reasons are required - as the AHRC submission to the SA parliament pointed out. I was merely responding to the initial point which you made about there being no right of appeal where leave is required.
      I think you can say there is a right of appeal - the initial stage of the appeal hearing is to establish that there is a "reasonably arguable" case - if that is not established the appeal is dismissed, otherwise one goes to the arguments on the merits. The requirement for leave does not negative the appeal right but merely subjects it to an initial assessment which presumably promotes efficient use of court time.

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    5. David Hamer

      Associate Professor of Evidence and Proof at University of Sydney

      In reply to Robert Moles

      OK. Given that we agree there is a distinction, it seems we are only differing on terminology. I think my position is more consistent with the legislation. But I doubt that I'll persuade you of this.

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    6. David Hamer

      Associate Professor of Evidence and Proof at University of Sydney

      In reply to Robert Moles

      There are a number of problems with your observation.

      1. Section headings are not part of the Act: Acts Interpretation Act 1919 (SA) s 9(2).
      http://www.austlii.edu.au/au/legis/sa/consol_act/aia1915230/s19.html

      2. Even if they were - and they are in some jurisdictions - they aren't necessarily useful. You need to interpret the legislation.

      3. "Right of appeal in criminal cases" is not the heading to the new provision, s 353A. It is the heading to s 352.

      4. Anyway, s 352 draws a distinction between (i) appeals 'as of right' and (ii) appeals 'with the permission of the Full Court': s 352(1)(b).

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  12. Tim Vines

    Director at Civil Liberties Australia

    Excellent article!

    In case anyone is interested, the film mentioned in this article, Shadow of Doubt, is having a free screening at Coombs Theatre, ANU, at 6-8.30pm on 10 Dec 2013. Its producer/director Eve Ash and the pro bono lawyer on the case, Barbara Etter, will be holding a Q&A sessions with the audience.

    Anyone wanting to attend can email: shadowdoubt@cla.asn.au

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  13. David Baxter

    Peer educator and Outreach worker

    On the other side of the coin there is the problem of jurors being corrupted as happens from time to time in organised crime trials and famously in the corruption trial of Joh Bjelke-Petersen.

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