Verballed victims await justice

by Chris Griffith
Published 12 July 1992 in The Sun-Herald


my face


For some Queenslanders, time has stood absolutely still since Tony Fitzgerald, QC's, report was released three years ago.

These are the victims of the state's corrupt police force. These are the people charged with offences based on fabricated police evidence, and convicted and jailed on what was sometimes perjury by police.

The manufacture of false police evidence, or `verballing', is not fiction, nor is it the allegations of the disgruntled. At the Fitzgerald Inquiry, police openly admitted to instances of it, and the Fitzgerald Report said: "The verbal confession has long been a feature of Queensland criminal trials."

The report recommended the Criminal Justice Commission (CJC) be charged with deciding how to address the plight of the verballed.

It suggested a retired judge could review all the cases, however it would be the CJC's role to decide the appropriate mechanism.

Upon its election, the Goss Government bypassed this decision-making process and decided the mechanism itself.

Attorney-General Dean Wells announced the government would establish a `Remediation of Miscarriages of Justice Unit' (RMJU) as a fully independent review mechanism.

As early as February 1990, Mr Wells promised victims their cases would be referred to the Unit, and in one case promised priority treatment once the Unit was established.

And in July 1991, Mr Wells wrote to a victim and said: "The proposal for a Miscarriage of Justice Unit in Queensland, as recommended by Mr Fitzgerald QC, is currently before the Honourable the Premier for consideration."

However, a viewing of documents generated subsequently suggests the government's approach has become ambiguous, and the RMJU an on-again, off-again proposition.

For example, a report by the Parliamentary Criminal Justice Committee (PCJU) tabled in December 1991, said: "The Government has now shelved the plan". Yet the Attorney-General's office vehemently denies this.

And in May this year, Mr Wells told one reporter the matter was now one for the CJC, only to affirm later his department was still planning the Unit.

Now the victims are being urged to use other processes. They can provide evidence of police misconduct to the CJC, seek a pardon, or bring forward fresh evidence which the Attorney-General can refer to the Court of Criminal Appeal.

Civil liberties council executive member, Paul O'Shea, who has been following the issue closely, says this approach is not satisfactory.

He says applications to the Court of Appeal, and applications for pardons or ex-gratia payments by way of compensation provide "a mixed bag of remedies which are discretionary and therefore somewhat unsatisfactory".

"Referral of police misconduct to the CJC does not result in the remedying of the effects of the miscarriage of justice upon its victims," Mr O'Shea says.

"It is also important that the victims should not have to prove their innocence, but rather cast reasonable doubt upon their guilt."

It is therefore little wonder victims are loosing patience and invoking their own legal remedy.

Some, for example, are using a rarely-invoked section of the Justices Act to launch private criminal prosecutions against police and others who have aggrieved them.

This move is a testament to their desperation for justice.

It may be everyday practice for accusers to launch civil legal proceedings, however criminal proceedings in lower courts are invariably initiated by the police, or are conducted in higher courts under the control of the Director of Prosecutions.

There are, of course, two sides to every story.

Mr Wells, while expressing sympathy to the victims, now says the Unit presents considerable problems which are yet to be resolved, including the issue of the separation of powers.

"This proposal would overturn centuries of legal tradition by having the executive arm of Government set up a structure which would seek to overturn judicial findings", he says.

He also acknowledges practical problems and expresses concern about the Unit's cost.

"It is very easy for critics who don't know the intricacies to say - throw money at it - and you'll solve the problem. I wish it were that easy," he says.

There are also concerns beyond those expressed by Mr Wells. There is, for example, the Fitzgerald Report's concern that the justice system may have difficulty coping with "the volume of cases which, rightly or wrongly, might be put forward for reassessment".

Meanwhile, Mr O'Shea says it is refreshing the government is at least acknowledging publicly there are difficult issues to face in formulating the RMJU.

He is preparing a submission the Council will send (unrequested) to the Attorney-General which will discuss options and possible models for a RMJU "relying to some extent on the UK experiences".

Hopefully there will now be a debate between the Government, interested groups, and the victims as to these problems and what can be done.

Yet a debate will be the only progress on this issue in three years.