Over recent months there has been much publicity about the new statutory right of appeal in criminal cases which was introduced in South Australia on 5 May 2013. Now the Legal Services Commission in the state has issued a disappointing response to the first application it has received under the new legislation by refusing legal aid funding for an appeal.
In 1979, David Szach was convicted of the murder of criminal lawyer Derrance Stevenson. After being shot, Stevenson’s body was placed in a freezer where it was found the following day. The pathologist calculated a time of death which coincided with witness statements which placed Szach at the scene around that time. At the trial, the prosecutor said, “… the objective and scientific evidence means that he was dead by 6.40, and the accused was there.” That was no doubt compelling evidence as far as the jury was concerned and contributed to the guilty verdict.
Szach’s Petition to the Governor in 2006 showed that there is “fresh and compelling” evidence which could now be presented to the Court of Appeal.
For example, Professor Bernard Knight, a world-leading authority on the issue of timing death based upon post mortem cooling said of the calculations in this case: “… all I can say is that in my opinion his reliance upon very speculative and tenuous calculations is ill founded and that the degree of accuracy he offers cannot be substantiated.” He said in relation to another aspect of the calculations, “this to me appears to be a figure snatched from the air without any scientific validation.”
Under the new law which grants a right of appeal where there is “fresh and compelling evidence” of a wrongful conviction, this is about as close as one can get to the gold-standard of error at trial.
However, when Szach applied for legal aid funding to enable him to obtain legal representation to take his matter back to the court, he was surprised to be told that there was no longer any significant public interest in whether he may have been wrongly convicted.
The Commission said that as Szach had served the sentence imposed by the Court, and had been released, “it appears that the only purpose for an appeal would be to have the conviction quashed” — “with no other practical benefit to be claimed”. (The Commission’s letter is here.)
In its reasoning, the Commission appears to have overlooked the public interest in identifying those who have been guilty of serious crimes and ensuring that they are apprehended and punished. After all, if Szach is innocent of the murder then surely some other person (or persons) is (or are) guilty of it. A solved crime is turned into an unsolved crime and a very serious one at that.
In addition, there is the possibility that in examining the errors at trial and the reasons for them, one might identify “systemic” errors. It may be that the errors in this case are linked to similar errors in other cases. Is there not some considerable public benefit to be achieved in finding out if that is the case, and if so looking at those other cases?
Then, of course, there is the situation of Szach. At present he is suffering from motor neurone disease and any undue delay in dealing with this matter is of great concern to him. Clearly, if he is innocent of the crime for which he has been convicted, he is entitled to have a public declaration to that effect. His children, his parents, his family and friends might like to know the truth about what has occurred. So too might the family of Derrance Stevenson.
If he is innocent, and if there was some element of fault on the part of the state in the investigation and prosecution of the case, then that might enable him to obtain compensation for the wrong which has been done to him.
Having studied a great many cases of wrongful convictions in Australia, Canada and Britain, we cannot recall such an explanation having been put forward anywhere as an excuse to refuse further inquiry or judicial determination of such a matter. In the UK there has been vigorous debate as to whether there are proper grounds for appeal in individual cases. However, in Szach’s case, the rejection was not based on the lack of grounds for an appeal, but solely on whether there was a public interest in funding such an appeal.
Earlier this month, on 6 May 2013, the Court of Appeal in New South Wales entered a verdict of acquittal in the case of Fred McDermott. He was convicted of murder in 1947 and subsequently released in 1952 following a Royal Commission. He died in 1977 and his right of appeal expired with him. Nevertheless, 60 years after he was released, 35 years after he died, the Attorney-General of NSW still thought it was worth referring the matter back to the court for an appeal upon the discovery of new evidence – and legal aid was granted.
In Britain, there have been numerous cases where the authorities have investigated possible wrongful convictions, long after those convicted had been released from prison. Indeed, in the case of Derek Bentley, the UK authorities investigated and reviewed the conviction nearly 50 years after Bentley had been hanged — and several years after he had been granted a posthumous pardon.
Many people regretted the fact that the South Australian government was not prepared to back or fund a Criminal Cases Review Commission to investigate such cases. Now that it is being revealed that even where “fresh and compelling evidence” exists (the test for a referral under the new Act) there will not even be funding for representation at an appeal, many people will be further shocked and disappointed.
International human rights obligations (to which Australia is a signatory) guarantee the right to a fair trial and the right to an effective appeal. As we said in our submission to the parliamentary inquiry which recommended this new legislation, “a breach of the obligation to provide a fair trial must impose obligations upon legal officials to act to remedy the effects of any unfair trial which has occurred.” The Australian Human Rights Commission said that the appeal arrangements prior to the introduction of this new right of appeal failed to respect the right to a fair trial and the right to a proper appeal — both the subject of guarantees in the International Covenant on Civil and Political Rights.
To then introduce a statutory remedy, and at the same time to refuse to provide any funding to those who need to take advantage of it, might seem to be a cynical and inappropriate response to the problem. Such a situation might also offend against the principle of ‘equality before the law’. All citizens should have an equal right of access to the courts, unless there are objective factors which justify some difference in treatment.
To find that those wrongfully convicted (but still in prison) may have funding for their appeals (such a case has yet to be determined) — but those wrongfully convicted (but released from prison) cannot — might seem to some to be an arbitrary rather than an objective and fair distinction.
To find that a person in Victoria who has been exonerated by a Royal Commission, then freed and then died can benefit from further funding for an appeal, but that a living person in South Australia cannot be funded for any appeal might also appear to be unreasonable and unfair.
Clearly these are early days in terms of the implementation of the new Act, but if this is to be a harbinger of things to come, one might find that the warm welcome which has been given to this initiative might soon dissipate.
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