FOLBIGG PARDON - QCCL renews calls for Criminal Cases Review Commission

The Folbigg Pardon highlights the necessity to establish a national Criminal Cases Review Commission in Australia.

Queensland Council for Civil Liberties Vice-President Terry O’Gorman said that the Folbigg case shows how the current system for remedying miscarriages of justice in Australia is dependent on politicians agreeing to set up a Special Inquiry into a case said to be a miscarriage of justice.

“The more controversial the case the less likely a politician (usually the Attorney-General) will set up a public inquiry to ascertain if a miscarriage of justice has occurred because the Attorney-General/politician fears a law and order blowback”, Mr O’Gorman said.

Mr O’Gorman said that the UK (England, Wales and Scotland) have had Criminal Cases Review Commission for years and New Zealand set up a similar body in 2019.

“The Folbigg case amply demonstrates the necessity for a national Criminal Cases Review Commission in Australia”, Mr O’Gorman said.

Mr O’Gorman said that public inquiries into miscarriages of justice are set up by the government of the day in the various States and Territories and the person constituting the Inquiry and Counsel Assisting is chosen by the government.

Mr O’Gorman said that as the New Zealand Minister for Justice said in his cabinet submission for a Criminal Cases Review Commission “there is a public perception that the status quo is not sufficiently independent of the Executive (government of the day) to remedy miscarriages of justice.[1]

“If New Zealand with a population the size of Queensland has acted on the necessity to establish a Criminal Cases Review Commission it is particularly important that a national Criminal Cases Review Commission spanning all Australian States and Territories be established, Mr O’Gorman said.

“A national Criminal Cases Review Commission would be funded by the individual States and Territories with the additional advantage that the staff of such a Commission would be completely separate and apart from police, Prosecutors, lawyers and Judges and the related police and legal culture of a particular State or Territory”, Mr O’Gorman said.

Mr O’Gorman said that the New Zealand establishment of the Criminal Cases Review Commission recognise that investigators in overseas jurisdictions having a Criminal Cases Review Commission tend to have a broad range of expertise including lawyers, former Detectives, criminal psychologists and forensic experts.

Mr O’Gorman said that the advantage of a national Criminal Cases Review Commission is that while an individual State or Territory might be able to argue that the cost of setting up effectively eight Criminal Cases Review Commissions to cover each of the Federal States and Territories criminal justice systems would be excessive a national Commission based on the New Zealand Commission would be funded by the States and would be a more efficient way of dealing with miscarriages of justice.

Mr O’Gorman said that the New Zealand Justice Minister’s justification for a Criminal Cases Review Commission applies equally in Australia namely “given the resources a State puts into securing a conviction, there is a reasonable expectation that some resources and initiatives will be expended by the State to help identify and address wrongful convictions”[2].

“The New Zealand and UK Criminal Cases Review Commission model provides that if the Commission concludes a miscarriage of justice may have occurred the Commission refers the case back to the Court of Appeal for a decision”, Mr O’Gorman said.

Mr O’Gorman said he will be urging Queensland’s Attorney-General Yvette D’Ath to refer the call for a national Criminal Cases Review Commission to the Standing Council of Attorneys-General

[1] See Minister of Justice New Zealand Cabinet submission on establishing a Criminal Cases Review Commission.

[2] IBID paragraph 24.