Tony Kerin: Not a lot. At the moment you have an inflexible process in South Australia in particular where you need to petition the government, the attorney-general, its completely discretionary, and if for some reason they don’t see fit to grant that further review of the case then it doesn’t happen. I think the last successful one in South Australia was in the early ‘80s, so it doesn’t happen a lot."
CHANNEL 7;
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PUBLISHER'S NOTE: There is important momentum in Australia - a county which has a tarnished record of providing recourse to people who have suffered miscarriages of justice after all their legal options have been exhausted - towards establishing an independent criminal cases review process. The following Chennel 7 interview demonstrates how South Australia is taking the lead in this important pursuit of procedural reform. Developments in Australia are being watched carefully by reformers in Canada and other countries where governments still control the process.
HAROLD LEVY: PUBLISHER; THE CHARLES SMITH BLOG;
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Rosanna Mangiarelli: Well now, imagine being imprisoned for life, having the evidence to show you’re innocent, but being refused the chance to prove it. That’s exactly how the law is in Australia at the moment. How many such cases exist, we have no way of knowing, because no-one is looking. Well the South Australian parliament has the chance to lead the nation by following the UK in creating a Criminal Cases Review Commission to inquire into possible wrongful convictions. And among a number of influential groups the Australian Lawyers Alliance support the move. Tony Kerin is the South Australian president. I spoke with him a short time ago.
Well Tony, thank you very much for coming in and first up, what exactly is a Criminal Cases Review Commission and why do we need one?
Tony Kerin: The Review Commission will be a body which will give you an opportunity to have your case examined, where things happen at a later date, where there is some evidence that needs to be reviewed which has come about after the appeal process or the process you’ve been a part of has ceased or finished. Why do we need one? Because courts make mistakes. You don’t have to look too far in modern history and indeed today you’ll see that the West Australian government has awarded compensation to Mr Beamish who was incarcerated for all the wrong reasons at the end of the day.
Rosanna Mangiarelli: So, if someone is wrongly convicted without such a body, what can they do?
Tony Kerin: Not a lot. At the moment you have an inflexible process in South Australia in particular where you need to petition the government, the attorney-general, its completely discretionary, and if for some reason they don’t see fit to grant that further review of the case then it doesn’t happen. I think the last successful one in South Australia was in the early ‘80s, so it doesn’t happen a lot.
Rosanna Mangiarelli: No, so this is of course once all the regular appeal processes have been exhausted.
Tony Kerin: You have your trial, you have an appeal, and it can go to the High Court as well and once that’s finished, that’s the end of the legal process.
Rosanna Mangiarelli: So, if we are begging the attorney-general like you say, you know, we do risk politics being interfered with, when it should be a matter of criminal justice.
Tony Kerin: Well, I’m raising nothing new to say that throughout Australia in the last decade the law and order policy has been rampant, and that would effect in my view a number of decisions that governments make about legislation and issues so you can remove that aspect by putting it before an independent body like the commission we’re talking about.
Rosanna Mangiarelli: What about the High Court, is that of any help?
Tony Kerin: The High Court generally will not admit new evidence and it’s reasonably inflexible about that. It is very difficult to get new material before them and so it’s not the answer for the issue that confronts people who are wrongly jailed.
Rosanna Mangiarelli: So, you’re saying that there are innocent people in Australian jails who simply can’t have their case reviewed?
Tony Kerin: Absolutely, again you don’t have to look too far, in West Australia there are a number of examples, in Queensland there’s some examples as well. It’s not something that is foreign to the press and to the public, people read about these cases all the time.
Rosanna Mangiarelli: So, the UK has adopted the system, that’s some time ago now, what percentage of cases that have been referred have been quashed?
Tony Kerin: About 70% of those cases referred back to the Court of Appeal which the review commission in the UK has found to be questionable have resulted in acquittals, so it can be seen it does useful work, and I think that’s in a period of about 15 years or so, so there is certainly a need for it in the UK and I think we’d be kidding ourselves if we thought there wasn’t a similar need for it in Australia.
Rosanna Mangiarelli: And in the UK cases Tony, weren’t there acquittals after there were executions?
Tony Kerin: Yes, that is a great tragedy, because in four of those cases, people had been hung many years ago and it seems somewhat academic to clear their names, although that stands for something, its not very practical is it, so it would have been far better if they had the opportunity of being released from custody.
Rosanna Mangiarelli: If someone is wrongly convicted, they’ve got absolutely nowhere to turn, is this not just a basic breach of human rights?
Tony Kerin: You could argue that strongly, and there is a potential for us to be in breach of our international obligations as well under some covenants. But it gets back to basic justice if you can complain, if you can produce some material that is independent and needs to be looked at then you should have a right to have your case reviewed.
Rosanna Mangiarelli: It’s certainly in everyone’s interest, isn’t it, although it is unusual to have lawyers finding fault in the system?
Tony Kerin: Lawyers are not infallible and neither are judges, the system is not infallible. It’s a great system, and all the rest of it but it does make mistakes, and there are so many examples of it throughout Australia now.
Rosanna Mangiarelli: Well, we’ve certainly seen some, haven’t we? What will your alliance be doing to progress this?
Tony Kerin: We’ll certainly be assisting Ann Bressington with her Bill, its currently before a legislative review committee I think, or about to be, and the Law Society, I think too have an interest in the matter, so we’ll be watching it very closely, to ensure that this body gets a thorough hearing and all the arguments for and against are accurately debated.
Rosanna Mangiarelli: Well, best of luck with your efforts Tony, and thank you very much for coming in again.
Tony Kerin: Thank you.
The interview can be found at:
http://netk.net.au/CCRC/CCRC25.asp
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
http://www.thestar.com/topic/charlessmith
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
