PUBLISHER'S NOTE: I was delighted to learn that Bob Moles has been invited to help the Canadian government create a Criminal Case Review Commission that will ensure that potentially wrongly convicted people can have their applications reviewed expeditiously and by an independent body. For years I have looked to Bob, along with Bibi, (Bibi Sangha) the other member of a dynamic, visionary criminal justice reform team) for guidance with this Blog. Bob kindly agreed to respond to my questions about the movement they are spearheading to establish strong, independent, well-equipped and funded CRCC's with teeth throughout the world. (And soon, I hope, in Canada).
Harold Levy: Publisher: The Charles Smith Blog.
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Q: You have been invited to help the The Government of Canada to create a Criminal Case Review Commission that will ensure that potentially wrongly convicted people can have their applications reviewed expeditiously and by an independent body. What is your reaction to this Canadian government initiative?
A: It is encouraging to see that the Commission is seeking input from people outside of Canada to contribute to their deliberations from their experience of these issues in other countries. Australia of course does not have a CCRC and has not even, as yet, shown any official interest in establishing one.
Q: By way of background, you and Bibi Sangha helped to introduce a Bill in the South Australian parliament in 2010 to establish a CCRC for South Australia. How did that work out? [Copy of the Bill and the Parliamentary proceedings here - http://netk.net.au/
A: "That led to a period of public consultation and recommendations by the parliament to establish a new right of appeal (which was adopted) and to establish a Forensic Review Panel to review possible wrongful convictions based upon alleged faulty forensic evidence (not adopted) and to establish an inquiry into the use of expert evidence in criminal proceedings (not adopted) - this point is an issue which has become the subject of recent debate by an appeal judge and the Attorney-General in Victoria - details here http://netk.net.au/
Q: When did you begin focussing on wrongful convictions?
A: We commenced our work on wrongful convictions in 1989 through our Networked Knowledge project just two years after the UK established their CCRC. At the time the establishment of the CCRC was seen to be something of a revolutionary step. Prior to then, alleged wrongful conviction cases had been dealt with by a somewhat secretive process of assessment by a government committee. However, when the convictions of the IRA bombers (Birmingham Six, Guildford Four, Maguire Seven, M62 bombing - http://netk.net.au/
Q: You mention 'Networked Knowledge.' What led you to develop this vast criminal justice resource?
A: As the internet was really developing in the early stages of our work, we realised that we could share our teaching and research materials with others in this way. We began to add relevant reports of legal cases and media reports. We then added links to television and radio programs along with transcripts of them - making them more accessible to 'google' searches - (this is the link to the 150 such programs we have been involved with - http://netk.net.au/
Q: What was your experience in advancing the wrongful convictions cause in Australia during those early years?
A:During those years we struggled to get our first and major wrongful conviction case back to the courts for review. At the same time we were able to witness a series of convictions being overturned in the UK. Eventually, after working for 14 years on the case of Henry Keogh we were finally able to get his case back before the appeal court. By then, the UK had already overturned more than 350 wrongful convictions (the figure is now over 460 cases). Mr Keogh's conviction was subsequently overturned when the state disclosed a further report which it had sat on for over 9 years, and which disclosed that the evidence of a murder having occurred was fundamentally flawed.
Q: Did the CRCC model spread to any other countries during those early years?
A: In those early years, Scotland and Norway had established similar CCRCs, and just last year New Zealand also established one.
Q: I would imagine that the task of overturning wrongful convictions in a systematic way posed many demanding challenges? What was your experience?
A: "We were aware of the outstanding work which had been done by AIDWYC (now Innocence Canada) over the years in helping to overturn a significant number of wrongful convictions. However, during our work as a private unfunded innocence project, we were very mindful of how inadequate our abilities were to tackle the complex task of assessing and dealing with alleged wrongful conviction cases. By contrast the UK CCRC had online access to all the court records including transcripts and exhibits - the ability to retain expert witnesses - and, most importantly, a statutory right to access any and all documents and materials held by any public body (more recently extended to include any private body). This meant that they could review the files held by the police, forensic services and prosecution agencies to ensure that they had fully complied with their duty of disclosure. They also had a team of paid staff who could review the files and make proper assessment of the claims which had been put to them.
Q: What did you learn from the British CRCC experience?
A: It is important to appreciate that of all the claims put to the CCRC around 96% of them were unable to meet the exacting test for referral to the appeal court. This led to a great many disgruntled applicants making claims that their cases had not been fully or properly considered or that the test being applied for a referral was too exacting. Nevertheless, the CCRC had identified a great many cases where serious and sometimes unconscionable errors and failures had occurred. The outrage arising from the IRA bombing cases was partly based upon the realisation that the convictions had been gained by the use of 'fraudulent' scientific evidence being given at trial. During the CCRC inquiries they had revealed in some cases that police had 'tortured' suspects into making false confessions, and that in other cases, prosecutors had induced 'witnesses' to give false or unreliable evidence to unfairly strengthen their cases. Surprisingly, instead of those revelations undermining people's confidence in the British legal system, many people from around the world began to visit the CCRC based in Birmingham ((included Bibi and myself) ) to learn more about how they went about their tasks and worked through the problems they had encountered. It is clear to us that the existence of a body such as a CCRC can not only speed up the process of error detection in the criminal process, but also aid the deterrent effect of those who may be tempted to cut-corners in their attempt to achieve convictions.
Q: Your efforts are coming to fruition in different parts of the world where the independent review movement you have inspired has spread. Is there any light at the end of the tunnel?
A: Of course we have persisted to encourage the authorities in Australia to establish their own criminal review commission - we have reported on a significant number of deficient cases mainly in South Australia, but also in other Australian states. More recently we worked with the Hon Michael Kirby AC CMG (a former justice of the Australian HIgh Court - equivalent to the Canadian Supreme Court) on an article seeking the establishment of such a commission in Australia. As Mr Kirby stated, with New Zealand and now Canada now embarking upon this important initiative, why must Australia be seen to be lagging behind? [See article at http://netk.net.au/Appeals/
Q: How do you adjust to the different 'make-ups' of the growing number of jurisdictions you are being asked to deal with"
A: "Of course, each country will have its own specific needs and local conditions to deal with. It may be the case that the wrongful conviction of indigenous people is a much greater problem in countries such as Canada, Australian and New Zealand than it is in the UK. What cannot be doubted is the value of looking to the experiences of other jurisdictions to learn from them and possibly be guided by them.
Q: You appear to have a special interest in Canada. Where does that come from?
A: Bibi was working happily in her chosen field of contract and commercial law as I became more involved in the wrongful conviction cases. Gradually, as I worked more closely on the policy and broader issues, Bibi used her skills to analyse more closely the issues emerging from the legislation and law reports involving wrongful convictions
Q: Do you think Canada will Canada will produce a strong, independent, well-equipped and funded CRCC with teeth?
A: The willingness of Canada to engage in that exercise preparatory to the establishment of its own CCRC is to be welcomed. If we are able to play just a small part in their deliberations, we would be most keen to assist in any way we can do so.""
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
