In the late 1970s, David Szach was convicted of the murder of Derrance Stevenson. His body had been found in the freezer at his home office. The forensic evidence at his trial narrowed down the time of death to a time frame when Szach was said to have been seen at the premises.
However, Professor Bernard Knight, the world’s leading expert on timing death from post-mortem temperatures said that the forensic timing of death was based on a calculation which was “scientifically unsound”. The figures used in the calculation “must have been snatched from the air”, he said.
A case like this in the UK would have been overturned long ago. In South Australia, it has until now been impossible to get it back before the courts for review.
Thankfully, an act to establish a new right of appeal in criminal cases has just been passed by the parliament of South Australia. The Statutory Amendment (Appeals) Bill 2012 provides for renewed appeals against conviction if “fresh and compelling” evidence comes to light after the the usual appeals have been exhausted.
The issue arose during a public debate which sought to establish a Criminal Cases Review Commission in South Australia. A similar commission in the UK has led to the overturning of over 328 convictions in recent years, including over 70 murder convictions.
In Australia, the administration of criminal justice is largely a matter for each of the states and territories. For criminal appeals, the legislation in each state and territory has provided for the same procedural rights in each jurisdiction.
The problem arises where a person has been convicted and has had an unsuccessful appeal. If after that totally compelling evidence is discovered which shows that the person has been wrongly convicted (perhaps as the result of DNA evidence) until now, that person has no legal right to any further appeal. There are provisions in New South Wales and the ACT which would allow for an inquiry, but that is not quite the same as a right of appeal.
There is established case law to say that a court of appeal is not allowed to re-open an appeal or to hear a second appeal. The High Court will say that it is not allowed, for constitutional reasons, to admit fresh evidence that shows there has been a wrongful conviction.
The only remaining procedure is to attempt to have the matter referred back to the court by way of a petition to the Governor. However, there is case law which says that the process is the subject of an “unfettered discretion” — and experience shows that even the most deserving cases may not be referred.
The Australian Human Rights Commission (AHRC) has stated that those appeal provisions do not comply with international human rights obligations. They said that the current appeal arrangements throughout Australia may not adequately meet Australia’s obligations under the ICCPR “in relation to the procedural aspects of the right to a fair trial”.
It also said that the current system of appeals does not provide an adequate process for a person who has been wrongfully convicted or the subject of a gross miscarriage of justice to challenge their conviction; the AHRC said that the appeal system in Australia has been deficient in this regard for over 30 years. Australia ratified the ICCPR in 1980.
The parliamentary committee looking into all of this recommended that there should also be a new forensic review panel which could investigate cases which might have involved flawed forensic evidence and, where appropriate, refer such cases back to the courts.
It also said that there should be a formal inquiry into the way in which expert evidence has been used in criminal trials. Those initiatives have not been included in the current Act, and the government has said that it does not propose to follow up on them.
However, when the cases lining up for a further appeal come before the courts and get their convictions overturned, as we say they must, the government might well take a different view of things.
In 1995, Henry Keogh was convicted of the murder of his fiancée by drowning her in the bath at their home. The forensic evidence at the trial included detailed evidence about grip marks on the leg, and how the woman’s head had been forced under the water to drown her.
Since then, the forensic expert who had given evidence at the trial subsequently gave sworn evidence at inquiries by the Medical Board and the Medical Tribunal. In that evidence, he admitted that key principles which he used at the trial were either wrong or mistaken.
One such error in the UK would guarantee that the conviction would be overturned. Six such admissions in South Australia have until now been thought insufficient to warrant a review by the court of appeal.
In addition, an independent review of baby death cases by the South Australian Coroner came to the conclusion that the pathologist concerned (the same one who gave evidence in the Keogh case) had made some very serious errors.
Surprisingly, the Coroner kept his report a secret until after Keogh had been convicted. Two days after that he released his report. The withholding of that report amounted to a serious non-disclosure at the Keogh trial. That alone would warrant the overturning of the Keogh conviction. Again, nothing has been done about that for the last 19 years.
Derek Bromley, an Indigenous man, was convicted of murder nearly 30 years ago. He is now six years past the ending of his non-parole period. He cannot be considered for parole because he refuses to show contrition for the offence of which he was convicted. He says he cannot do that because he didn’t do it. Again, his conviction is said to have been based upon flawed forensic evidence and he has eminent experts willing to give evidence to that effect.
Then we have Edward Splatt, convicted of the terrible rape and murder of an elderly woman in the bedroom at her home. We know that he didn’t do it because a Royal Commission set up in South Australia nearly 30 years ago said as much.
Indeed the Splatt Report said that every single item of forensic evidence produced at his trial contained errors. Splatt’s trial lasted for 11 days, and the Commission sat for 192 hearing days, at the end of which another error was made. Splatt was given a pardon, instead of having his conviction overturned. Splatt didn’t know the difference until we explained it to him a short while ago.
That is why the new act has a provision which says that where a person has been granted a pardon, they are entitled to go back to the Court of Appeal to have their conviction overturned. Because Splatt’s pardon was issued in error (a pardon is an exercise of “mercy” and is inappropriate to be used for a wrongful conviction) he will be the only person who will ever avail of it.
We think that the new provisions in this act, whilst looking fairly sensible and benign, will, in the longer run, have a profound effect upon the criminal justice system, not only in South Australia, but across the country. It yet may lead to a forensic review panel or a criminal cases review commission.