Justice is denied

by Chris Griffith
Published 3 January 1993 in The Sun-Herald


my face


Justice delayed is justice denied describes perfectly the plight of Queensland's victims of miscarriages of justice.

These people - charged, convicted, and jailed on what they say is fabricated police evidence, or verbals, have been seeking reviews of their cases since 1988 when the now Deputy Premier, Tom Burns, promised to help people convicted by "crooked cops".

This was after revelations of wide-spread verballing by police at the Fitzgerald Inquiry. The 1989 Fitzgerald report recommended the Criminal Justice Commission (CJC) investigate a mechanism to redress alleged miscarriages in Queensland, "for instance, by a retired judge".

The CJC never got to do it. After the Goss Government was elected, Attorney-General Dean Wells announced he would set-up a Remediation of Miscarriages of Justice Unit in his department.

Three years later, on December 10 1992, Mr Wells went onto the ABC's The 7.30 Report and passed the poisoned chalice to the CJC by announcing the Commission had agreed it would investigate miscarriages of justice. This, however, was news to an angry CJC chair Rob O'Regan, QC, who next morning issued a media release saying the CJC had done no such thing.

The Commission did not wish to raise false hope among those claiming to be the victims of miscarriages of justice," Mr O'Regan said.

The net effect is, that after three years, the Attorney-General has ditched his promise, and thrown it into the Government's favorite waste paper basket, the CJC, which says it has no money to establish the unit.

To his credit, Premier Wayne Goss now says the Government will consider funding the CJC to set- up the unit.

However, hopes for the victims have nosedived yet again with a December 17 letter by Mr. O'Regan declaring the CJC would not establish the unit. Mr O'Regan has now made it clear that the CJC's role, if anything, will be limited to researching the methodology by which miscarriages can be addressed.

"For the Commission to act in any different manner, whether by establishing a specific Unit within the Commission to address miscarriages of justice or otherwise, would require significant legislative amendment," Mr O'Regan said. "The Commission does not intend to seek any such amendment."

Now miscarriages of justice are not simply a quirk of Queensland's legal system, pre-Fitzgerald, nor Australia. In 1974 the Birmingham six were convicted of two IRA bombings which killed 21 people. In 1991 the six were freed after the English Court of Appeal had found police had fabricated evidence and lied to the trial judge. They had spent 17 years in prison.

In the UK there was also the Guildford four, and the Maguire seven, Irish nationals whose convictions of bombing charges in 1975 were quashed in 1991.

In 1991, the British Home Affairs Committee estimated that as many as 200-300 cases a year may be 'serious' miscarriages of justice.

Australia too has high-profile, world-recognised victims wrongly convicted as the result of police verbals, mistakes in forensic evidence, and the evidence of police informants and prison informants. The Chamberlains, who this year were awarded $1.3 m compensation, and Tim Anderson, framed for the February 1978 Hilton bombing and exonerated in 1991 are two prominent examples.

In Queensland, the names reel off the tongue: Kelvin Condren, Lorelle Saunders, Peter Perera, John Anderson, Barry Mannix, Peter Faulkner, to name a few.

Here it is now back to square one. At the moment no-one will set-up the unit, however the CJC should proceed with its research exercise and deliberate on the form a future unit might take. Any progress is better than none. It could, for example, research the unit's structure and composition, its relationship to the Courts, the unit's criteria for selecting cases to review, the standard of proof needed to establish a miscarriage, possible findings, and the touchy issue of compensation.

In Britain the same issues are now being considered by the Runciman Royal Commission, established in 1991 following the Birmingham six's acquittal. Already, the British House of Commons Select Committee on Home Affairs has recommended an independent review body to investigate miscarriages of justice, although its model has been rejected by Parliament.

One of the interesting parallels between the UK and Queensland is that it is said the Runciman Commission would have been unnecessary had the UK adopted recommendations of the 1980 Phillips Royal Commission to reform the British justice system.

The Queensland Council for Liberties believes the $24m Fitzgerald Inquiry may have been avoided had the 1977 Lucas Inquiry recommendations been adopted. The Council says Lucas recommended prosecutors pass on allegations made against police during trials, and that they be analysed to uncover any patterns of police abuse.

The Council, the Prisoners Legal Service, and the Queensland Watchdog Committee are among organisations still hoping the CJC can perform some useful role on this issue.

Queensland Council for Civil Liberties vice-president Paul O'Shea said that over the last three years the Attorney's office had not released any position paper to the public "to indicate the Attorney has any model in mind". "The delay that has occurred, and the lack of a firm proposal involving any form of structure or model suggests there may be other reasons for the government's delay on this subject," Mr O'Shea said.

Prisoners Legal Service co-ordinator Mary Burgess says she has currently around 20 documented cases of people wishing to have injustices redressed.

Mr O'Shea said he was prepared to write a submission to the CJC and propose a model for the unit. He would propose it have investigate powers similar to the CJC's. But Mr O'Shea's unit would be only an administrative body. Any determination that a miscarriage had taken place would be referred back to the courts and, if misconduct was suspected, to the CJC, he said.

Mr O'Shea said the courts could then decide to quash the original verdict, and optionally to order a new trial. He said the unit could also establish criteria for deciding the amount of compensation paid to victims who had spent time in jail. The unit would then recommend payments to Executive Council.

He said under his plan there was no need for the unit to PROVE a verbal. It would simply assess whether evidence had been falsified, or could reasonably be held to be falsified to the civil standard of proof. It would also assess whether evidence was withheld, or whether there is new evidence that is relevant.

Ms Burgess believes the unit should also be an on-going body, and not there simply to address injustice pre-Fitzgerald. She says verbals by police and prison informants are now as common as the old police verbal.

Hopefully the CJC will call for public submissions and research the structure of a unit. Unfortunately for the victims, it will be a totally theoretical and irrelevant venture unless someone volunteers to set it up.