In response to instances of miscarriages of justice and a need for better post-conviction review mechanisms, the United Kingdom (in 1997),[i] Scotland (in 1999),[ii] Norway (in 2004)[iii] and New Zealand (in 2020)[iv] have established a Criminal Cases Review Commission.
On 31 March 2021, it was announced that two senior (former) judges have been appointed to lead public-facing consultations on the creation of an independent Criminal Cases Review Commission in Canada.[v]
What a Criminal Cases Commission Does
While some features vary from country to country, the basic premise of a Criminal Cases Review Commission is to review potential miscarriages of justice (in relation to both convictions and sentences). The Commission usually receives applications from individuals who have already tried to appeal through the courts unsuccessfully.
A Commission is an independent body tasked with reviewing cases for which there is a claim that the conviction or sentence is wrong in some way. It is independent from the courts, police and government. It has powers to compel government departments and organisations to produce documents for review, interview (or re-interview) witnesses and brief experts for opinions on matters arising in a case.
It undertakes a thorough investigation into a case and takes the burden away from the convicted person to do so (and from pro bono lawyers who in rare cases assist convicted individuals). It does not, however, have power to make determinations on the case itself (e.g., to remove a conviction or free a person from incarceration). It only has the power to investigate, and if appropriate, refer the case to an appeal court. Each Commission has a different ‘test’ which they apply to determine if a case should be referred to an appeal court for further examination.
For more information on what the Commission in the UK, Scotland, Norway and New Zealand do specifically, see the links available in footnotes 1-4 below.
The longest operating Commission, the United Kingdom’s Criminal Cases Review Commission, has demonstrated success in undertaking investigation into alleged miscarriages of justice. From the period between April 1997 to February 2021, the UK Commission has received a total of 27, 235 applications (including all ineligible cases) and has completed 26,530 cases. The Court heard 689 cases; 466 appeals were allowed and 210 were dismissed.[vi]
Why we Need a Commission in Australia
There are a multitude of reasons why we require a Commonwealth Criminal Cases Review Commission in Australia. The below are a few important reasons:
- Just as the newly established NZ Commission has said: ‘Miscarriages of justice occur because, as with any system, mistakes are made.’[vii] Australia urgently requires a Criminal Cases Review Commission to show a serious commitment to ensure miscarriages of justice are investigated and corrected.
- The person who might have suffered a miscarriage of justice should not bear the burden to investigate, locate, obtain and analyse further evidence. They do not have the financial resources, lack legal knowledge and literacy, have no power to compel the production of documents and are often incarcerated with little ability to do anything about their case.[viii]
- Currently, it is mainly the responsibility of the Executive Government (for example, in NSW it is the Governor) to intervene at the late stages of a miscarriage of justice. This is highly inappropriate for the Executive Government to have this power; this is due to the lack of separation from departments such as police and prosecution agency, who invariably have a stake in an individual’s conviction.
- Each State and Territory in Australia have different laws relating to post-conviction review; none of which are sufficient to deal with serious miscarriages of justice.[ix]
[v] See https://www.canada.ca/en/department-justice/news/2021/03/minister-of-justice-and-attorney-general-of-canada-takes-important-step-toward-creation-of-an-independent-criminal-case-review-commission.html
[ix] See the Law Council of Australia’s policy statement: https://www.lawcouncil.asn.au/publicassets/9b40d8f6-bdd6-e611-80d2-005056be66b1/120421-Policy-Statement-Commonwealth-Criminal-Cases-Review-Comission.pdf; see generally, Lynne Weathered, ‘Pardon Me: Current Avenues for the Correction of Wrongful Conviction in Australia’ (2005) 17(2) Current Issues in Criminal Justice 203; David Hamer, Wrongful Convictions, Appeals, and the Finality Principle: The Need For A Criminal Cases Review Commission’ (2014) 37(1) UNSW Law Journal 270.