POST: "Funding appeals is in the public interest," by Bob Moles and Bibi Sangha, published by New Matilda on May 20, 2013. (Dr. Bob moles is a legal scholar and author - and publisher of "Networked knowledge," a superb website devoted to analysis of miscarriages of Justice in Australia and elsewhere. Bibi Sangha is a senior lecturer in law at Flinders University. These two courageous law reformers have led the battle for a new
statutory right of appeal in criminal cases in South Australia. Now they
are leading the fight to ensure that the new right is not eviscerated by refusal of legal aid funding.)
PUBLISHER'S VIEW. (Editorial): It is evident from reading this important article by Bob Moles and Bibi Sangha, that the South Australian Legal Services Commission has taken a stand on funding David Szach's appeal under the new legislation which has the effect of crippling it. Ironically, the funding is apparently being denied in a case which cried out for an appeal - a case in which the forensic evidence used to convict Mr. Szach has since come under blistering attack. By taking such a narrow view of the new legislation, the funding body risks sabotaging the new legislation and drawing its own reputation into disrepute. Instead, the Commission should be facilitating the new legislation by taking a generous view of the public interest - and the new right of appeal should be made available thoughout the rest of Australia, so that all Australians will have an equal opportunity for justice in the nation's criminal courts.
Harold Levy; Publisher. The Charles Smith Blog.
GIST: "South
Australia has just passed a statutory right of appeal in criminal cases
– but it's refused legal aid funding to one of the first people to try
and exercise that right, write Bibi Sangha and Bob Moles 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”.........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."
