Wednesday, May 22, 2013

David Szach: (South Australia); A passionate cry to breath life into South Australia's new statutory right of appeal by ensuring that legal aid will make it accessible - by Bob Moles and Bibi Sangha (in the context of a case where the underlying forensics have come under blistering attack.)

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."
The entire post can be found at:

See "Historic reform to South Australia's criminal appeals law (World news: Australia);   "Historic reforms in South Australia now allow prisoners a second chance to appeal their convictions. It's the most significant change to Australia's criminal appeals laws in a century and experts say other jurisdictions are likely to follow suit.  The story can be found at:

Keep your eye on "The Charles Smith Blog,"  dear reader. We are following the Szach case - and the hugely important funding issue related to South Australia's statutory right of appeal.


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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:

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Harold Levy: Publisher; The Charles Smith Blog.