Miscarriages of justice : criminal appeals and the rule of law in Australia 9780409340730, 0409340731

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Miscarriages of Justice Criminal Appeals and the Rule of Law in Australia

Bibi Sangha BA (Hons) (Law) (Middlesex), LLM (LSE, London) Senior Lecturer in Law, Flinders University of South Australia Barrister-at-law (Lincoln’s Inn), Barrister and Solicitor, Supreme Courts of the Australian Capital Territory and South Australia

Dr Robert Moles ACII (UK), LLB (Hons) (Queens, Belfast), PhD (Edinburgh) Networked Knowledge

LexisNexis Butterworths Australia

2015

In memory of Oliver (Olly) Thomas Henry Moles, BA (18 November 1980–20 March 2011) and Asbir Kaur Sangha, Barrister (Lincoln’s Inn), Advocate and Solicitor Malaysian Bar, Founding Partner, Asbir, Hira Singh and Co, Malaysia (6 November 1950–8 April 2015)

AUSTRALIA ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

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National Library of Australia Cataloguing-in-Publication entry Author: Tide:

Sangha, Bibi. Miscarriages of justice: criminal appeals and the rule

ISBN: Notes: Subjects:

of law in Australia. 9780409340723 (pbk). 9780409340730 (ebk). Includes index. Judicial error — Australia. Due process of law — Australia. Criminal investigation — Australia. Criminal justice, Administration of — Australia. Moles, Robert N.

Other Authors/Contributors: Dewey Number: 347.9407

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Myriad Pro and Minion Pro. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Foreword The Hon Michael Kirby AC CMG* Dante Alighieri, writing of Paradiso, almost certainly imagined a special place in Heaven for those who remedy wrongful punishment of the innocent. If that place exists, the authors of this book have certainly earned a right, in due course, to have the keys. For years, they have been expressing their concerns about the apparent injustices of particular criminal convictions in their home state of South Australia. They have made representations about the needs for investigations, enquiry and law reform. They have lobbied politicians; confronted inertia; and eventually secured action by the State Parliament. They have contributed to, and recorded, the operation of the enacted law. They have extended their advocacy to attempts to have the reform copied in other Australian states. Already, they have achieved a measure of success in Tasmania. More seems inevitable. They have acted upon the special obligation that rests on those who enjoy academic freedom to research, understand and advocate for remedies for injustice — individual and social.1 Not content with the reform that has been achieved, and the study of what is happening in other jurisdictions, the authors continue to advocate a more effective response. Now they have written this book to describe and explain the intellectual journey they have taken. It is a book of high principle. But it is also a practical book for legal practitioners: to guide them through the old and the new law on criminal appeals. Theirs is the kind of well-targeted passion that motivated William Wilberforce to found the Anti-Slavery Society and Caroline Chisolm to campaign for the protection of women immigrants to Australia. Practical individuals with conscience can sometimes help change the world. Occasionally, they are lawyers. Sitting in their lonely cells,2 the victims of apparent miscarriages of the criminal justice system witness the power of the law over their freedom. When they protest their innocence, they are reliant on the operation of a complex

system of law and justice that provides checks at many levels against the nightmare of serious errors and wrongs. Yet, human justice is always prone to error and mistaken outcomes. The lawyer assigned to the case may have been incompetent, inexperienced or overworked.3 The trial judge may have made mistakes that misled the jury but which the appeal judges were willing to excuse as harmless or immaterial.4 The appeal bench may have been so overwhelmed with cases that the judges did not have the time to notice a basic flaw in the evidence.5 These facts may have made the judges over-dependent on lawyers who themselves lacked the time or imagination to consider the enormous detail about which the prisoner was endlessly protesting. The prisoner might have suffered from a mental illness, despair or emotional exhaustion. If he or she failed in the first-level appeal, legal aid might have refused funding for counsel in the High Court of Australia: rendering the prosecution of a hearing for an application for special leave difficult or impossible.6 In the High Court, the discovery of compelling fresh evidence may have been excluded from tender, supposedly for constitutional reasons.7 Bereft of even a qualified right of appeal to the Judicial Branch, the prisoner might then have been entirely dependent on the mercy of the Executive Branch, with its uncertain remedies and unknowable procedures.8 For a prisoner, convicted after a trial complying with all the outward forms of criminal process, still to protest innocence despite all these hurdles might say something about the untrustworthiness of convicted criminals. Or it might say something about the unquenchable sense of injustice that occasionally keeps the flame of hope and determination alive. It is to differentiate between untrustworthiness and aggrieved innocence that a just system of criminal process will provide effective remedies and relief. This book describes the growing realisation of the failings of the system of criminal appeals instituted in England in 1907 and thereafter exported in common form to its colonies. The authors set out to test the century-old system of criminal appeals by reference to basic principles governing law and justice expounded by Sir Neil MacCormick, a leading writer on the theory of legal process. As well, the book invokes the recent development of universal human rights. Australia has subscribed to the International Covenant on Civil and Political Rights9 and to the First Optional Protocol that affords those affected by a breach of the Covenant the opportunity to communicate their complaint to the United Nations Human Rights Committee in Geneva.10 By reference to these two modern sources of principle and reasoning, the authors identify what they

see as the fundamental defects in the institutional means that have been provided in Australia for a hundred years to guard against the risks of criminal convictions of the innocent and other grave miscarriages of justice. By reference to a litany of deeply troubling cases, the authors explain the urgent need for fresh law reform. They examine the shape which that reform might take. In my career in legal practice,11 institutional law reform12 and judicial service, I have attempted, where I could, to uphold safeguards against wrongful convictions of the innocent and other miscarriages of justice. In many cases, as a judge, where I felt the law afforded me a choice, I favoured the exercise of that choice so as to diminish the intolerable risk that an innocent person might be punished in consequence of my judicial orders. I did so, for example, in interpreting provisions for reopening a suspect conviction;13 elaborating the power under the Constitution or state legislation to allow fresh grounds of appeal to be decided;14 or a second application to be made;15 or by favouring the reopening of perfected court orders.16 But in one case, I was brought face to face with the conclusion that my judicial order had resulted in an innocent person suffering a substantial miscarriage of justice and serving 12 years’ imprisonment because I had failed to perceive a fatal flaw in the prosecution case. The decision in question involved Andrew Mallard, a prisoner in Western Australia.17 At a trial in 1995, a jury found him guilty of murder. He was convicted and sentenced to life imprisonment. His appeal was unsuccessful. Special leave to appeal to the High Court of Australia was refused in 1997.18 I participated in that refusal. In 2002, Mr Mallard petitioned for mercy. He claimed that he was innocent. Fortunately, the State Attorney-General referred his petition to the Court of Criminal Appeal of Western Australia.19 However, that court unanimously dismissed his petition. He then sought special leave, once again, to appeal to the High Court. He complained that the Court of Criminal Appeal had failed to consider the whole of his case. Having been rostered for Mr Mallard’s appeal, upon reading the file and submissions, some elements appeared familiar. A check disclosed that I had participated in the earlier refusal of special leave. Scrutiny of the transcript of that application disclosed that it had been substantially addressed to a complaint concerning failure to admit into evidence a polygraph test suggesting Mr Mallard’s innocence. A refusal to reopen that question would not have been unusual because of the resistance to such tests in Australian criminal procedure. However, in the fresh application for special leave, the case was propounded

by new and highly talented pro bono counsel (Mr M J McCusker QC and Mr J J Edelman). They took a completely different course. By fastidious analysis of the evidence produced at the trial they demonstrated convincingly that the prisoner could not have been at the murder scene at the time of the homicide consistently with other objective evidence of timing and sightings of him in Perth that day. Mr Mallard was a person suffering from mental disabilities. In addition to the basic flaw affecting the alleged proof of his guilt, there were many instances of non-disclosure or suppression of material evidence in the hands of the police, available to the prosecution. This demonstrated convincingly the injustice of his trial.20 By the end of the appeal hearing, it was clear that, not only had Mr Mallard not received a fair trial, he was also, almost certainly, innocent. Andrew Mallard’s conviction was quashed. A subsequent judicial inquiry cleared him of involvement in the murder. The evidence implicated another prisoner who had not previously been regarded as a suspect. Mr Mallard was awarded $3.25 million in damages for his wrongful conviction and punishment. However, no sum of money could wipe away the suffering inflicted on him, his family and the community. Or the failure of the criminal justice system in his case. A recent analysis of many similar cases in Australia and overseas, offered by his counsel, now The Honourable Malcolm McCusker AC, CVO, QC, demonstrates convincingly that the Mallard case was far from a one-off instance.21 When even conscientious judges, provided with inadequate support by advocates and working under pressure with inadequate time for self-initiated speculation, fail to perceive crucial flaws, it is clear that there is an institutional weakness that needs to be addressed. It is to that weakness, and the repairs essential to cure it, that the authors of this book have directed their energies. The institutional solutions for the defects appearing in the century-old criminal appeal template emerged initially in the United Kingdom. They followed the investigation of a substantial number of convictions (many involving persons convicted as Irish terrorists). The investigation resulted in the establishment of a Criminal Cases Review Commission. After that Commission was established in the United Kingdom, the number of quashed convictions rose from four or five a year to between 20 and 30. Approximately 96% of all applications to the Commission were investigated; but rejected. However, of the 4% referred by the Commission to the Court of Appeal, approximately 70% have succeeded in having the convictions quashed.22

So far, no such commission has been created in Australia, although in 2011, the Attorney-General for Western Australia was reported as favouring such a body. Meantime, in South Australia, an additional right of appeal, permitting a second or subsequent appeal where there was ‘fresh and compelling’ evidence, was adopted by amendment of the Criminal Law Consolidation Act 1935 (SA).23 This effectively transfers the filter mechanism from the Executive Government to the Judicial Branch. With the pressures already existing on the judges of the highest court in a State of Australia, one can see immediately the potential for the new remedial scheme to run into the problems that already existed in the old system. However, the objective of the South Australian Government was to replace the petition to the Executive Government (with its lack of transparency) by a process initiated for the prisoner before the independent Judicial Branch of Government. Far from proving to be a toothless tiger, the utility of the new provision in South Australia has already been demonstrated by the fact that the first two appeals heard under it, resulted in orders allowing the appeal; quashing the conviction; and affording immediate relief to the prisoner.24 By detailed examination of further cases in South Australia and in other Australian jurisdictions, the authors of this book powerfully demonstrate the need for remedies of this kind everywhere that the template criminal appeal provisions still operate. A statutory remedy to similar effect has been foreshadowed in Tasmania. Meanwhile, in Victoria, a Practice Direction has been made by the Judges of the Supreme Court to address the significant and special problems that have arisen in the case of convictions based on expert testimony, including DNA evidence. Such evidence can sometimes be powerful and exculpatory.25 It can prevent the conviction of an innocent accused and save miscarriages of justice. But it can also occasionally lend itself to error, distortions and injustices, against which the criminal process must be on special guard. One departs from the reading of this book, and the many sobering cases reviewed in it, convinced that the steps towards legal reform, begun in South Australia, are the minimum that is needed. The authors realise this. They have pointed in the direction that the Australian legal system should take. The Australian constitutional system affords the advantage of a facility for legal experimentation, adaptation and variation. In earlier decades, South Australia led the nation in reforms of criminal laws against homosexuals; consumer protection laws; and environmental law reform. Now, thanks to political initiatives originally conceived by persistent legal academics, stimulated by civil

society organisations and picked up by bold and caring parliamentarians, South Australia once again has offered the lead. The forces of formalism, the siren song of cost restraint and the suggested merit of ‘finality’ need to be resisted in this struggle. There is no merit in the finality of the conviction of the innocent or legal indifference to their plight. Protecting the innocent is a badge of a civilised society that upholds universal human rights. The authors of this book will not rest until the challenge expressed in these pages is adequately answered in Australia. As citizens, we should give them our support. We should lift our voices to defend the innocent from wrongful convictions. And especially if we are lawyers.

24 August 2015 Sydney

*

1.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Justice of the High Court of Australia (1996–2009); President of the New South Wales Court of Appeal (1984–1996); Judge of the Federal Court of Australia (1983–1984); Chairman of the Australian Law Reform Commission (1975–1984). Compare David Yamada, cited in N Stobbs, ‘Academic Freedom and University Autonomy’ in S Varnham, D Kamvounias and J Squelch, Higher Education & The Law, Federation Press, Sydney, 2015, p 214. Nudd v R (2006) 225 ALR 161; 80 ALJR 614; 2006 HCA 9 at [110] (Nudd). Nudd at [12]; cf Tuckiar v R (1934) 52 CLR 335. Weiss v R (2005) 224 CLR 300; 223 ALR 662; [2005] HCA 81. Mallard v R (2005) 224 CLR 125; 222 ALR 236; [2005] HCA 68 (Mallard). Muir v R (2004) 206 ALR 189; 78 ALJR 780; [2004] HCA 21. Eastman v R (2000) 203 CLR 1; 172 ALR 39; [2000] HCA 29 (Eastman) at [277]. Varley v A-G (NSW) (1987) 8 NSWLR 30 at 39–40; 24 A Crim R 413 (Varley). See below at para [3.5.1]. 999 UNTS 171 (1976). S Joseph and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 3rd ed, Oxford University Press, Oxford, 2013, para [1.52]. See, for example, Ex parte Corbishley; Re Locke [1967] 2 NSWR 547. Australian Law Reform Commission, Criminal Investigation — Interim, Report 2, 1975; Sentencing of Federal Offenders, Report 15, 1980. Varley. Eastman; cf Sinanovic v R (1998) 154 ALR 702; 72 ALJR 1050; [1998] HCA 40.

15. 16. 17. 18. 19. 20. 21.

22. 23. 24.

25.

Postiglione v R (1997) 189 CLR 295 at 333; 145 ALR 408. Burrell v R (2008) 238 CLR 218; 248 ALR 428; [2008] HCA 34 at [122] (power to reopen perfected orders). Mallard. Mallard v R (SLR, P 52/1996, 24 October 1997, unreported: noted (1997) 191 CLR 646). Pursuant to the Sentencing Act 1995 (WA) s 140(1)(A). Mallard at [55]–[57]. See below at para [8.5]. M McCusker, ‘Miscarriages of Justice’, address to the Anglo-Australasian Lawyers’ Society (WA), Perth, 24 June 2015 (‘Miscarriages of Justice’) available at . McCusker, ‘Miscarriages of Justice’, p 25. See below at para [3.7.3]. See below at para [6.5]. R v Keogh (No 2) (2014) 121 SASR 307; [2014] SASCFC 136 and R v Drummond (No 2) [2015] SASCFC 82. See below at para [6.1]. Mr Keogh was set free after serving 20 years’ imprisonment. Mr Drummond had already been released. R v Button [2001] QCA 46 at [71].

Preface The development of the ideas upon which this book is based has taken place over a good many years. The writing of it has taken place over the last eight months. There are some difficult issues here which, together, represent a sustained critique of current institutional arrangements. To progress the discussion, it has been necessary to set out in some detail the current provisions in relation to a number of complex legal issues. The current appeal rights, the petition procedure, the new right of appeal provisions and the rules relating to expert witnesses are individually and collectively sometimes more complex than they need to be. Some might take the view that we are adding additional layers of complexity by bringing to the discussion issues of jurisprudence, human rights and the rule of law. We take the view that those issues can help us to bring clarity to the situation by reminding us of the fundamental values which are the very basis of our legal system, and which we hold in common with other similar systems. Whilst we sometimes look to other jurisdictions for guidance, we should bear in mind that the institutional innovation introduced in South Australia, in some important respects, exceeds that which has been introduced in either the United Kingdom or Canada. At the same time, those other jurisdictions have made advances which we in Australia could learn from. The experience of the United Kingdom with the Criminal Cases Review Commission and of the United States with the identification of forensic error in criminal trials should give us all an opportunity to reflect upon how similar developments might add to our understanding of issues in Australia. It is important to appreciate that we are as much concerned with the failure to convict the guilty as we are with the wrongful conviction of the innocent. Both in our view constitute serious miscarriages of justice. We are also keen to promote the idea that whilst the Australian criminal justice system operates in an adversarial manner, the resolution of its problems does not have to be adversarial. We should all be concerned where appealable error has occurred at trial, whatever its cause. We would like to express our special gratitude to the Hon Michael Kirby AC

CMG, former Justice of the High Court of Australia. He has encouraged us to develop and continue our work in this area for many years now, and has publicly stated his support for the innovations which have occurred in South Australia. We are particularly grateful to him for providing such a thought-provoking foreword to this book. We are also grateful to the Hon Malcolm McCusker AC CVO QC for his interest in our work and for his willingness to provide some comments by way of a pre-publication review of it. We are grateful to LexisNexis and in particular to Serena Cubie for commissioning this work in what the publishers have described as a new and developing area of law. We are also grateful to Jennifer Burrows for her skill in heading the editorial team and to Daisy Coles for her detailed editing of the text. It has been a pleasure and a privilege to work with you all. Bibi Sangha and Robert Moles August 2015

Acknowledgments We have made specific acknowledgment of the contribution of publishers in the chapters relating to the following topics. We would like here to provide a general acknowledgment of that contribution and to thank the following publications and their various editorial staff for their important assistance in the development of our ideas on these issues. Chapter 4: Post-appeal Petitions: Flinders Law Journal Chapter 5: The Grounds of Appeal: The University of New South Wales Law Journal Chapter 7: Fraud in Criminal Proceedings: Professor Kent Roach and Irwin Law, Toronto.

Table of Cases References are to paragraph numbers

A A v NSW (2007) 230 CLR 500; 233 ALR 584; [2007] HCA 10 …. 11.7.1–11.7.1.4 Adams v R [2006] NICA 6 …. 7.3 Ah Yick v Lehmert (1905) 2 CLR 593; 11 ALR 306; [1905] HCA 22 …. 4.5 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11; [1992] HCA 10 …. 7.5 AJS v R (2007) 235 CLR 505; 235 ALR 633; [2007] HCA 27 …. 11.5 AK v WA (2008) 232 CLR 438; 243 ALR 409; [2008] HCA 8 …. 5.5 Al-Kateb v Goodwin (2004) 219 CLR 562; 208 ALR 124; [2004] HCA 37 …. 2.5.8 Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876; [1989] 3 All ER 843 …. 7.4, 7.6 Aldridge v R (1990) 20 NSWLR 737; 51 A Crim R 281 …. 9.3.4 Ali v R (2005) 214 ALR 1; [2005] HCA 8 …. 4.8 Alister v R (1984) 154 CLR 404; 51 ALR 480; [1984] HCA 85 …. 8.10 Amin v Bannerjee [1947] AC 322 …. 11.7.1 Andelman v R (2013) 38 VR 659; 227 A Crim R 81; [2013] VSCA 25 …. 5.5 Anderson v Australia (United Nations Human Rights Committee, 15 November 2006, CCPR/C/88/D/1367/2005) …. 8.10 — v R (1991) 53 A Crim R 421 …. 8.10 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; [1997] HCA 4 …. 2.7 Applications by Chief Commissioner of Police (Vic) for Leave to Appeal, Re (2004) 9 VR 275; [2004] VSCA 3 …. 8.2.1 Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; 97 ALR 555 …. 9.3.4

Arthur J S Hall & Co v Simons [2002] 1 AC 615; [2000] 3 All ER 673 …. 11.7.4 Assistant Commissioner Condon v Pampano Pty Ltd (2013) 252 CLR 38; 295 ALR 638; [2013] HCA 7 …. 4.9 Associated Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 …. 4.5.2, 4.8, 7.4 Australian Securities and Investments Commission v Rich (2005) 190 FLR 242; 53 ACSR 110; [2005] NSWSC 149 …. 9.2 Ayles v R (2008) 232 CLR 410; 242 ALR 399; [2008] HCA 6 …. 5.5 Aylett v R [1956] Tas SR 74 …. 4.5.2

B Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; 286 ALR 421; [2012] HCA 14 …. 5.5 Bailey v Marinoff (1971) 125 CLR 529; [1972] ALR 259; [1971] HCA 49 …. 7.7.1.1 Baini v R (2012) 246 CLR 469; 293 ALR 472; [2012] HCA 59 …. 5.3, 5.5–5.7, 6.5.6.1 Barder v Caluori [1988] AC 20; [1987] 2 All ER 440 …. 3.7.2 Beckett v NSW (2013) 248 CLR 432; 297 ALR 206; [2013] HCA 17 …. 11.5.5, 11.7.1 Berger v United States 295 US 78 (1935) …. 8.10 Bonython v R (1984) 38 SASR 45; 15 A Crim R 364 …. 9.3.1, 9.4.8 Boswell v Coaks (No 2) (1894) 86 LT 365 …. 7.7.1.1 Boucher v R [1955] SCR 16; (1954) 110 CCC 263 …. 8.3 Bounds v R (2006) 228 ALR 190; 80 ALJR 1380; [2006] HCA 39 …. 5.2, 5.2.2 Boyle v CCRC [2007] EWHC 8 …. 4.1, 12.9.4 Bradshaw v R (WACCA, Malcolm CJ, Pidgeon and Owen JJ, 13 May 1997, unreported) …. 8.5.1 Breen v Amalgamated Engineering Union [1971] 2 QB 175; [1971] 1 All ER 1148 …. 4.9 Breen v Williams (1996) 186 CLR 71; 138 ALR 259; [1996] HCA 57 …. 4.9 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; [1938] HCA 34

…. 7.7.1.1 Bromley v R (1986) 161 CLR 315; 67 ALR 12; [1986] HCA 49 …. 10.6 Brown v Chapman (1848) 6 CB 368 …. 11.7 Brownsville Nominees Pty Ltd v FCT (1988) 19 FCR 169; 82 ALR 409 …. 4.5.2 Burrell v R (2008) 238 CLR 218; 248 ALR 428; [2008] HCA 34 …. vii, 3.3.1, 6.2, 7.1–7.3, 7.7.1.1, 7.7.2, 8.6, 11.7.4 Button v R (2002) 25 WAR 382; [2002] WASCA 35 …. 8.5.1 — v — (WACCA, 22 May 1964, unreported) …. 8.6 Bugg v Day (1949) 79 CLR 442; 23 ALJR 508; [1949] HCA 59 …. 9.3.2, 9.3.4 Byrnes v R (1999) 199 CLR 1; 164 ALR 520; [1999] HCA 38 …. 4.9

C Cabassi v Vila (1940) 64 CLR 130; [1941] ALR 33 …. 7.4, 7.5, 7.7.1.1 Cannon v Tahche (2002) 5 VR 317; (2002) Aust Torts Reports 81-669; [2002] VSCA 84 …. 8.5 Carlton v R (2010) 199 A Crim R 591; [2010] NSWCCA 81 …. 5.2.1, 5.2.2 Causevic v R (2008) 190 A Crim R 416; [2008] NSWCCA 238 …. 8.15.2 Cesan v R (2008) 236 CLR 358; 250 ALR 192; [2008] HCA 52 …. 5.2.3, 5.3, 5.5, 5.6, 6.5.8, 11.5.3 Chamberlain v R (1983) 46 ALR 493; 72 FLR 1 …. 6.5.5.1, 9.11–9.11.7 — v — (No 2) (1984) 153 CLR 521; 51 ALR 225; [1984] HCA 7 …. 3.4.2, 9.11–9.11.7 Ching Suan Tze v Minister for Home Affairs [1988] 2 SCR(R) 525 …. 2.5.2 Christie v R [2005] WASCA 55 …. 4.8, 6.5.5.1 Church of Scientology Inc v Woodward (1982) 154 CLR 25; 43 ALR 587; [1982] HCA 78 …. 4.9 Clone Pty Ltd v Players Pty Ltd (in liq) [2012] SASC 12 …. 7.6, 7.7.1.1 Clough v Tameside and Glossop Health Authority [1998] 1 WLR 1478; [1998] 2 All ER 971 …. 9.3.3 Coffin, Re (1955) 116 CCC 215 …. 3.8.3 Collins v R (1975) 133 CLR 120 …. 3.3.1

Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 …. 7.4 Commonwealth v Griffith (2007) 70 NSWLR 268; 245 ALR 172; [2007] NSWCA 370 …. 11.7.4 Condren v R (HCA, 16 November 1989, unreported) …. 8.12 — v — (1987) 28 A Crim R 261 …. 8.12 Connelly v DPP [1964] AC 1254; [1964] 2 All ER 401 …. 7.1 Conway v R (2002) 209 CLR 203; 186 ALR 328; [2002] HCA 2 …. 5.10 Cooley v Western Australia (2005) 155 A Crim R 528; [2005] WASCA 160 …. 8.5 Cooper Brookes (Wollongong) Pty Ltd v FCT (1981)147 CLR 297; 35 ALR 151; [1981] HCA 26 …. 4.5.2 Corbishley, Ex parte; Re Locke [1967] 2 NSWR 547 …. vii Craig v R (1933) 49 CLR 429; 7 ALJR 212; [1933] HCA 41 …. 6.5.5.1 Craig v South Australia (1995) 184 CLR 163; 131 ALR 595; [1995] HCA 58 …. 7.4 Cran v NSW (2004) 62 NSWLR 95; Aust Tort Reports 81-737; [2004] NSWCA 92 …. 11.7 Crease v Barrett [1835-42] All ER Rep 30; (1835) 1 Cr M & R 919 …. 3.2 CTM v R (2008) 236 CLR 440; 247 ALR 1; [2008] HCA 25 …. 5.5 Cumberland v Clark (1996) 39 NSWLR 514 …. 11.7.1.2

D D v NSPCC [1978] AC 171; [1977] 1 All ER 589 …. 2.4.3 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92; [2005] HCA 12 …. 7.2, 7.4, 11.7.4 Dallagher, Re [2002] EWCA Crim 1903 …. 12.3.1.4 Danby v Beardsley (1978) 43 LT 603 …. 11.7.1 Darkan v R (2006) 227 CLR 373; 228 ALR 334; [2006] HCA 34 …. 5.5 Darker v Chief Constable West Midlands Police [2001] 1 AC 435; [2000] 4 All ER 193; [2000] UKHL 44 …. 11.7.3.2, 11.7.3.3 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; 277 ALR 611; [2011] HCA 21 …. 9.2, 9.3.1, 9.3.4, 9.4.3, 9.5, 9.14.1

Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) …. 9.3.1. 9.4.1, 9.4.3, 9.4.6, 12.3, 12.3.1.2, 12.3.4.3 Davern v Messel (1984) 155 CLR 21; 53 ALR 1; [1984] HCA 34 …. 6.5.10, 7.4 Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 …. 9.3.2 Davies v R [1937] VLR 205; (1937) 57 CLR 170 …. 5.6 Davis v Gell (1924) 35 CLR 275; (1925) 31 ALR 49 …. 11.7.1.2 Dhanhoa v R (2003) 217 CLR 1; 199 ALR 547; [2003] HCA 40 …. 5.2.2 Dinsdale v R (2000) 202 CLR 321; 175 ALR 315; [2000] HCA 54 …. 11.3 Director of Public Prosecutions v Majewski [1977] AC 443; [1976] 2 All ER 142 …. 3.7.1 — v Moseley (2013) 275 FLR 140; [2013] NTSC 8 …. 7.1, 7.7–7.7.2.1 Director of Public Prosecutions (ACT) v Eastman (2002) 118 FCR 360 …. 8.16 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; 55 ALR 175; [1984] HCA 48 …. 11.5 Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; 155 ALR 539; [1998] HCA 45 …. 11.5.3 Director of Public Prosecutions (Vic) v Bennett [2004] VSC 207 …. 8.2.1 — v Ghiller (2003) 151 A Crim R 148; [2003] VSC 350 …. 8.2.1 DJL v Central Authority (2000) 201 CLR 226; 170 ALR 659; [2000] HCA 17 …. 3.3.1, 7.2, 7.3 Donai v R [2011] NSWCCA 173 …. 8.2.1 Doney v R (1990) 171 CLR 207; 96 ALR 539; [1990] HCA 51 …. 1.1.1, 5.10 Dorset Yacht Co Ltd v Home Office [1970] AC 1004; [1969] 2 All ER 564 …. 11.7.3.3 Dowsett v CCRC [2007] EWHC 1923 (Admin) …. 12.9.4 Duncan v R [2015] NSWCCA 84 …. 9.2, 9.3.2 Dupas v R (2012) 40 VR 182; 218 A Crim R 507; [2012] VSCA 328 …. 9.4.8, 9.6.2 Dyers v R (2002) 210 CLR 285; 192 ALR 181; [2002] HCA 45 …. 11.5.1

E

Eastern Trust Co v McKenzie, Mann & Co Ltd [1915] AC 750 …. 2.5 Eastman v A-G (ACT) (2007) 210 FLR 440; [2007] ACTSC 28 …. 4.7.1 — v ACT (2008) 163 ACTR 29; [2008] ACTCA 7 …. 4.7.1, 8.16 — v Besanko (2009) 223 FLR 109; [2009] ACTSC 10 …. 8.16 — v — (2010) 244 FLR 262; [2010] ACTCA 15 …. 8.16 — v — [2011] HCASL 79 …. 8.16 — v DPP (ACT) (HCA, McHugh J, No C10/2002, 4 September 2002, unreported) …. 3.3.1 — v — (2003) 214 CLR 318; 198 ALR 1; [2003] HCA 28 …. 3.2, 3.5.2.1, 4.3, 4.5.1, 8.16 — v — (ACT) (No 1) (2014) 9 ACTLR 163; [2014] ACTSCFC 1 …. 3.5.2.1 — v — (ACT) (No 2) (2014) 9 ACTLR 178; [2014] ACTSCFC 2 …. 3.3.1, 3.3.2, 8.16, 9.15–9.15.2, 11.5 — v — (ACT) (No 3) [2014] ACTSCFC 3 …. 3.3.1 — v Marshall (2012) 7 ACTLR 37; 266 FLR 191; [2012] ACTSC 134 …. 3.5.2.2 — v Miles (2007) 210 FLR 417; [2007] ACTSC 27 …. 8.16 — v — (2004) 181 FLR 418; [2004] ACTSC 32 …. 8.16 — v R (2008) 166 FCR 579; 248 ALR 149; [2008] FCAFC 62 …. 8.16 — v — [2008] HCASL 550 …. 8.16 — v — (2000) 203 CLR 1; 172 ALR 39; [2000] HCA 29 …. vi, 3.3.2, 8.16 — v — (1997) 76 FCR 9; (1997) 158 ALR 107 …. 8.16 Edebone v Allen [1991] 2 VR 659 …. 11.5.5 Edwards v R (1993) 178 CLR 193; 117 ALR 600; [1993] HCA 63 …. 11.5 Elias v R (2013) 248 CLR 483; 298 ALR 637; [2013] HCA 31 …. 11.5.5 Elliot v R (2007) 234 CLR 38; 239 ALR 651; [2007] HCA 51 …. 3.3.1, 3.5.2.1, 4.8, 7.7.1.1, 7.7.2 Engel v Netherlands (No 1) (1976) 1 EHRR 647 …. 2.4.2 Evans v London Hospital Medical College [1981] 1 WLR 184; [1981] 1 All ER 715 …. 11.7.1.1, 11.7.4 — v NSW (2008) 168 FCR 576; 250 ALR 33; [2008] FCAFC 130 …. 2.5.8 — v R (2007) 235 CLR 521; 241 ALR 400; [2007] HCA 59 …. 5.2, 5.5

Everett v R (1994) 181 CLR 295; 124 ALR 529; [1994] HCA 49 …. 11.5

F Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 236 ALR 209; [2007] HCA 22 …. 2.5.7 Farley (Aust) Pty Ltd v J R Alexander & Sons (Qld) Pty Ltd (1946) 75 CLR 487; [1946] HCA 29 …. 7.4 Fingleton v R (2005) (2005) 227 CLR 166; 216 ALR 474; [2005] HCA 34 …. 11.5 Fitzgerald v R (2014) 311 ALR 158; 88 ALJR 779; [2014] HCA 28 …. 5.2.1 Fleming v R(1998) 197 CLR 250; 158 ALR 379; [1998] HCA 68 …. 5.6, 11.5 Fowler v R (1985) 39 SASR 440; 17 A Crim R 16 …. 9.3.1 Frye v United States 293 F 1013 (DC Cir, 1923) …. 9.3

G Gallagher v R (1986) 160 CLR 392; 65 ALR 207; [1986] HCA 26 …. 4.8, 5.6, 5.7, 6.5.5.1 Gamser v Nominal Defendant (1977) 136 CLR 145; 13 ALR 387 …. 7.7.1.1 Gassy v R (2008) 236 CLR 293; 245 ALR 613; [2008] HCA 18 …. 5.5 Gerakiteys v R (1984) 153 CLR 317; 51 ALR 417; [1984] HCA 8 …. 11.5.1 Gerhardy v Brown (1985) 159 CLR 70; 57 ALR 472; [1985] HCA 11 …. 2.6.1 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; 188 ALR 353; [2002] HCA 22 …. 4.9 Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 131 …. 5.9.1, 8.5.2, 8.15–8.15.5, 9.4.1, 9.14–9.14.3, 11.5 Gilmour v Her Majesty›s Advocate [2007] Scot HC HCJAC 48 …. 7.3 Gipp v R (1998) 194 CLR 106; 155 ALR 15; [1998] HCA 21 …. 4.5, 5.2.2, 5.10, 6.5.4 Grant v Australia Knitting Mills (1933) 50 CLR 387; [1933] ALR 453 …. 2.3.5 Green v R (2011) 244 CLR 462; 283 ALR 1; [2011] HCA 49 …. 2.5.3 Grey v R (2001) 184 ALR 593; 75 ALJR 1708; [2001] HCA 65 …. 5.2, 5.2.3, 6.5.5.1, 8.5, 8.5.2 Grierson v R (1938) 60 CLR 431; [1938] ALR 460 …. 3.3.1, 7.7.1.1, 7.7.2

Grollo v Palmer (1995) 184 CLR 348; 131 ALR 225; [1995] HCA 26 …. 4.4.2

H HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; [1998] HCA 54 …. 3.5.2.1 Hall v R (1988) 36 A Crim R 368 …. 9.6 Hannes v DPP (Cth) (No 2) (2006) 165 A Crim R 151; 60 ACSR 1; [2006] NSWCCA 373 …. 9.4.8 Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209 …. 11.5 Hargan v R (1919) 27 CLR 13; [1919] HCA 45 …. 5.6 Harrison v Schipp [2002] 54 NSWLR 612; [2002] NSWCA 78 …. 7.7.1.1 Heron v R (2003) 197 ALR 81; 77 ALJR 908; [2003] HCA 17 …. 5.3 HG v R (1999) 197 CLR 414; 160 ALR 554; [1999] HCA 2 …. 9.3.4 Hip Foong Hong v H Neotia & Co [1918] AC 888 …. 7.7.1.1 Holgate-Mohammed v Duke [1984] AC 437; [1984] 1 All ER 1054 …. 2.4.4 Honeysett v R (2014) 311 ALR 320; 88 ALJR 786; [2014] HCA 29 …. 5.2, 9.4.4–9.4.7, 9.7, 11.5, 11.5.1, 12.3.1.4 Horwitz v Connor (1908) 6 CLR 38; [1908] HCA 33 …. 4.7.1 House v R (1936) 55 CLR 499; [1936] HCA 40 …. 9.4.8 Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727 …. 11.7.3.1, 11.7.3.2

I Imbler v Pachtman 424 US 409 (1976) …. 11.7.3.3 Irving v R [1997] HCA Trans 404 …. 3.3.2

J Jago v District Court of NSW (1989) 168 CLR 23; 87 ALR 577; [1989] HCA 46 …. 11.5.5 James v Keogh (2008) 101 SASR 42; [2008] SASC 156 …. 9.3.3, 10.12.11 Jiminez v R (1992) 173 CLR 572; 106 ALR 162; [1992] HCA 14 …. 11.5 Jones v Kaney [2011] 2 AC 398; [2011] 2 All ER 671; [2011] UKSC 13 …. 11.7.3.4

— v R (2009) 254 ALR 626; 83 ALJR 671; [2009] HCA 17 …. 5.5 Jonesco v Beard [1930] AC 298 …. 7.4, 7.7.1.1

K Kable v DPP (NSW) (1995) 189 CLR 51; 138 ALR 577; [1996] HCA 24 …. 4.4.2 Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22 …. 2.6.1, 6.7 Keogh v James [2009] SASC 258 …. 12.12.11 — v — [2010] HCASL 3 …. 12.12.11 — v Medical Board of South Australia (2007) 99 SASR 327; 97 ALD 759; [2007] SASC 342 …. 10.12.9 — v R [2007] HCATrans 693 …. 3.3.2, 4.5.2, 10.12.10, 11.5.3 — v — [1997] HCA Trans 313 …. 10.12.4 King v R (1986) 161 CLR 423; 67 ALR 379; [1986] HCA 59 …. 8.3 Kingswell v R (1985) 159 CLR 264; 62 ALR 161; [1985] HCA 72 …. 4.9 Knowles, Re [1984] VR 751 …. 6.5.5.1 Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 39 ALR 417; [1982] HCA 27 …. 2.6.1

L Lacey v A-G (Qld) (2011) 242 CLR 573; 275 ALR 646; [2011] HCA 10 …. 2.5.4, 4.9 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96; [1997] HCA 25 …. 2.5.7, 3.4.1 Law Society of Singapore v Tan Guat Neo Phyliss [2008] 2 SCR(R) 239 …. 2.5.2 Lazarus Estates Ltd v Beasley [1956] 1 QB 702; [1956] 1 All ER 341 …. 7.4 Leake v Sutherland (1868) 2 SALR 158 …. 11.7 Lewis v R (1987) 88 FLR 104; [1987] NTCCA 3 …. 8.5.2, 9.3.2 Libke v R (2007) 230 CLR 559; 235 ALR 517; [2007] HCA 30 …. 5.2.2, 8.3 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 …. 4.8, 6.5.5.1, 10.3

M

M v R (1994) 181 CLR 487; 126 ALR 325; [1994] HCA 63 …. 5.2.1, 5.6, 5.9.3, 5.10, 6.5.4, 8.16, 9.5 McCartney v R (2012) 38 VR 1; 226 A Crim R 274; [2012] VSCA 268 …. 9.4.8 McDonald v McDonald (1965) 113 CLR 529; [1966] ALR 496 …. 7.4, 7.7.1.1 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 …. 1.1.1, 9.3.1–9.3.4, 9.4.4, 9.4.7 Mallard v R (2005) 224 CLR 125; 222 ALR 236; [2005] HCA 68 …. 4.5, 4.8, 5.6, 6.5.5.1, 6.5.7, 8.1, 8.5, 8.13, 11.5.1 — v — (2003) 28 WAR 1; [2003] WASCA 296 …. 8.1, 8.13 — v — (WACCA, 11 September 1996, unreported) …. 8.13 Malvaso v R (1989) 168 CLR 227; 89 ALR 34; [1989] HCA 58 …. 4.9 Manock v South Australia (SASC, 2355 of 1978, unreported) …. 10.2 Marinovich v R (1990) 46 A Crim R 282 …. 9.3.4 Martens v Commonwealth (2009) 174 FCR 114; 253 ALR 457; [2009] FCA 207 …. 4.1, 4.5–4.8, 6.3. 6.5.4, 6.5.8 Martin v Watson [1996] AC 74; [1995] 3 All ER 559 …. 11.7.1.1 Matthews and Ford, Re [1973] VR 199 …. 4.5 Medical Board of South Australia v Manock [2009] SAMPCT 2 …. 10.12.12 Melendez-Diaz v Massachusetts 557 US 305 (2009) …. 12.3.1.2 MFA v R (2002) 213 CLR 606; 193 ALR 184; [2002] HCA 53 …. 5.3, 5.10 MG v R (2007) 69 NSWLR 20; [2007] NSWCCA 57 …. 8.4 Mickelberg v R [1999] WASCA 1003 …. 8.11 — v — (No 2) (1989) 4 WAR 497 …. 8.11 — v — (1989) 167 CLR 259; 86 ALR 321; [1989] HCA 35 …. 3.3.2, 3.7.2, 4.8, 8.11 — v — (1987) 29 A Crim R 442 …. 8.11 — v — (WACCA, 2 April 1984, unreported) …. 8.11 — v — [1984] WAR 191 …. 8.11 Milat v R (2004) 205 ALR 338; 78 ALJR 672; [2004] HCA 17 …. 3.3.1 Milgaard, Re reference [1992] 1 SCR 866 …. 3.8.3 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299; [1986] HCA 40 …. 4.8

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 128 ALR 353; [1995] HCA 20 …. 2.6.1, 6.7 Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; 236 ALR 42; [2006] FCAFC 142 …. 7.5 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 …. 7.4 Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 …. 11.7.1.3 Morabito v R [2007] NSWCCA 126 …. 9.6 Morgan v R (2011) 215 A Crim R 33; [2011] NSWCCA 257 …. 9.4.6, 9.7 Morro v ACT (2009) 168 ACTR 1; 234 FLR 71; [2009] ACTSC 118 …. 11.6.4.1 Moseley v DPP [2013] HCA Trans 237 …. 7.7.1.2, 7.7.2.1 Mraz v R (1955) 93 CLR 493; [1955] ALR 929 …. 5.5 Muir v R (2004) 206 ALR 189; 78 ALJR 780; [2004] HCA 21 …. vi Muldrock v R (2011) 244 CLR 120; 281 ALR 652; [2011] HCA 39 …. 3.4.3 Mulholland v Mitchell [1971] AC 666; [1971] 1 All ER 307 …. 3.7.2 Murphy v R (1989) 167 CLR 94; 86 ALR 35; [1989] HCA 28 …. 9.4.8 — v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023; [1969] 2 All ER 949 …. 3.7.2

N National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd’s Rep 68 …. 9.3.3, 9.5 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; 67 ALJR 170; [1992] HCA 66 …. 7.7.1.1 Nguyen v R (2013) 298 ALR 649; 87 ALJR 853; [2013] HCA 32 …. 11.5.3 Nudd v R (2006) 225 ALR 161; 80 ALJR 614; [2006] HCA 9 …. v, vi, 5.2.2–5.3, 5.6

O Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146; [2000] FCA 1463 …. 9.4.1 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; 36 ALR 425; [1981] HCA 50

…. 4.9 Osland v R (1998) 197 CLR 316; 159 ALR 170; [1998] HCA 75 …. 5.6, 9.3.1 — v Secretary to the Department of Justice (2010) 241 CLR 320; 267 ALR 231; [2010] HCA 24 …. 4.2 Owens Bank Ltd v Bracco [1992] 2 AC 443; [1992] 2 All ER 193 …. 7.4 Owners of the Ship, Shin Kobe Maru v Shipping Co Inc (1994) 181 CLR 404; 125 ALR 1; 68 ALJR 907 …. 3.3.2

P P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 …. 11.5.4 Pantorno v R (1989) 166 CLR 466; 84 ALR 390 …. 3.3.1 Paric v John Holland Constructions Pty Ltd (1985) 62 ALR 85; 59 ALJR 844; [1985] HCA 58 …. 9.3.2, 9.3.4 Parker v R (1997) 186 CLR 494; 143 ALR 293; [1997] HCA 15 …. 11.5, 11.5.2 Patel v R (2012) 247 CLR 531; 290 ALR 189; [2012] HCA 29 …. 5.6, 5.9.3, 5.10 Patsalis v Attorney-General (NSW) (2013) 85 NSWLR 463; 303 ALR 568; [2013] NSWCA 343 …. 3.2 Pearce v R (1998) 194 CLR 610; 156 ALR 684; [1998] HCA 57 …. 11.3 Pearson v CCRC [1999] EWHC Admin 452 …. 12.9.4 Pepper v Attorney-General (Qld) (No 2) [2008] 2 Qd R 353; [2008] QCA 207 …. 4.7, 4.8 Perry v R (1990) 49 A Crim R 243 …. 9.3.4 — v — (1982) 150 CLR 580; 44 ALR 449; [1982] HCA 75 …. 10.5 Pinfold v R [2003] EWCA Crim 3643 …. 3.7.1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 …. 4.9 Polites v Commonwealth (1945) 70 CLR 60; [1945] ALR 113 …. 2.6.1, 6.7 Pora v R [2015] UKPC 9 …. 6.5.5.1, 7.3 Postiglione v R (1997) 189 CLR 295; 145 ALR 408 …. vii, 3.3.1 Potter v Minahan (1908) 7 CLR 277; 14 ALR 635; [1908] HCA 63 …. 2.5.8

Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; 16 ACSR 227 …. 9.3.3

R R v A [2003] QCA 445 …. 3.3.1 — v Anderson (1991) 53 A Crim R 421 …. 11.5 — v Andrews [2012] SASC 78 …. 4.5.2 — v Apostilides (1984) 154 CLR 563; 53 ALR 445; [1984] HCA 38 …. 8.15.3, 8.15.4 — v Bailey (1977) 66 Cr App R 31 …. 9.6 — v Bain [2004] 1 NZLR 638 …. 6.5.5.1 — v Bentley (Deceased) [2001] 1 Cr App Rep 307; [1998] EWCA Crim 2516 …. 4.3, 4.3.1, 6.4, 6.6, — 6, 12.1 — v Berry (2007) 17 VR 153; 176 A Crim R 195; [2007] VSCA 202 …. 9.4.8 — v — (No 2) [1991] 1 WLR 125 …. 3.7.1 — v Birmingham Crown Court, Ex parte Ricketts [1990] Crim LR 745; [1991] RTR 105 …. 7.6 — v Bolton Justices, Ex parte Scally [1991] 1 QB 537; [1991] 2 All ER 619 …. 7.3 — v Bowman [2006] 2 Cr App Rep 22; [2006] EWCA Crim 417 …. 6.4 — v Brain (1999) 74 SASR 92; 107 A Crim R 129; [1999] SASC 358 …. 3.3.1 — v Brown [2007] NICA 30 …. 3.7.1 — v Bunting (2002) 84 SASR 378; 136 A Crim R 539; [2002] SASC 412 …. 8.16.1 — v Button [2001] QCA 46 …. ix — v Carroll (2002) 213 CLR 635; 194 ALR 1; [2002] HCA 55 …. 6.5.10 — v — [2001] QCA 394 …. 11.5 — v Catt [2005] NSWCCA 279 …. 3.5.1.3, 5.8, 5.9.3, 6.5.10 — v Causley [2003] EWCA Crim 1840 …. 8.6 — v Ceylan (2002) 4 VR 208; 130 A Crim R 500; [2002] VSCA 53 …. 11.5 — v Clark [2003] EWCA Crim 1020 …. 12.9.2 — v Cooper [1969] 1 QB 267; [1969] 1 All ER 32 …. 8.16 — v Condren, Ex parte Attorney-General [1991] 1 Qld R 574; (1990) 49 A Crim

R 79 …. 8.12 — v Cosgrove [1948] Tas SR 99 …. 4.3, 4.5.1 — v Cottrell [2007] EWCA Crim 2016 …. 12.9.4 — v Cowan [2013] QSC 337 …. 8.2.1 — v Cross [1973] 1 QB 937 …. 3.7.1 — v Crown Court at Knightsbridge, Ex parte Goonatilleke [1986] QB 1; [1985] 2 All ER 498 …. 7.6 — v Daley, Ex parte A-G (Qld) [2005] QCA 162 …. 4.8 — v Daniel [1977] QB 364; [1977] 1 All ER 620 …. 3.7.1 — v Davis [2001] 1 Cr App R 115 …. 5.9.2 — v — [2000] EWCA Crim 109 …. 5.9.2, 6.4 — v De Mey [2005] NZCA 74 …. 3.3.1 — v Derbyshire County Council, Ex parte Times Supplements Ltd (1991) 3 Admin LR 241 …. 2.4.4 — v Dick [1966] Qd R 301 …. 9.6 — v Drummond (No 2) [2015] SASCFC 82 …. ix, 6.1, 6.5.5.1, 6.5.5.2, 8.17, 9.3.2, 9.16 — v Dunn (NSWCCA, Street CJ, Glass JA and Carmichael J, 21 October 1980, unreported) …. 8.10 — v Edwards (No 2) [1931] SASR 376 …. 3.3.1 — v Elliot (2006) 68 NSWLR 1; 164 A Crim R 208; [2006] NSWCCA 305 …. 3.3.1 — v Faulder [2006] 1 Cr App Rep 55; [2005] EWCA Crim 1980 …. 12.9.2 — v Farquharson (2009) 26 VR 410; [2009] VSCA 307 …. 8.5.1 — v Fell [2001] EWCA Crim 696 …. 7.3 — v Forbes, Ex parte Bevan (1972) 127 CLR 1; [1972–73] ALR 1046; [1972] HCA 34 …. 7.6.1 — v Foster [1985] QB 115; [1984] 2 All ER 679 …. 4.3 — v Friend [2004] EWCA Crim 2661 …. 7.3 — v Fulham, Hammersmith and Kensington Rent Tribunal, Ex parte Gormly [1952] 1 KB 179; [1951] 2 All ER 1030 …. 7.5

— v GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117 …. 3.3.1, 4.5.2, 6.2, 6.5.3 — v George [2007] EWCA Crim 2722 …. 12.9.2 — v — [2002] NSWCCA 401 …. 8.15.4 — v Gibson (1887) 18 QBD 537 …. 3.2 — v Gillyard (1848) 12 QB 527; 116 ER 965 …. 7.4, 7.6 — v Grantham [1969] 2 QB 574; [1969] 2 All ER 545 …. 3.7.1 — v Gray [2003] EWCA Crim 1001 …. 9.4.1 — v Grierson (1933) 50 WN (NSW) 71 …. 3.3.1, 4.5.2 — v — (1937) 54 WN (NSW) 144a …. 6.2 — v Griffiths (1980) 72 Cr App R 307 …. 11.5.5 — v H(E) (1997) 33 OR (3d) 202 …. 3.8.1 — v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2 …. 5.2.3 — v Hanson [2003] QCA 488 …. 11.5 — v Heyde (1990) 20 NSWLR 234 …. 1.1.1 — v Hickey [1997] EWCA Crim 2028 …. 5.8.2 — v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61 …. 5.2.3 — v Hurley [2010] 1 SCR 637 …. 3.8.2 — v Ion (1996) 89 A Crim R 81 …. 6.5.3 — v J-LJ [2000] 2 SCR 600 …. 9.5 — v James (EWCA Criminal Division, Evans LJ, 31 July 1998, unreported) …. 5.9.2 — v Janceski (2005) 64 NSWLR 10; 223 ALR 580; [2005] NSWCCA 281 …. 5.2.3 — v Jenkins, Ex parte Morrison [1949] VLR 277; [1949] ALR 468 …. 9.3.2 — v Jewitt [1985] 2 SCR 128 …. 7.1 — v Justices at Biloela, Ex parte Marlow (No 2) [1983] 1 Qd R 552 …. 7.5 — v Kamara [2000] EWCA Crim 37 …. 6.4 — v Kelly [2003] EWCA Crim 2957 …. 6.4, 8.6 — v Kent Justices, Ex parte Ashford (No 2) [1956] 1 QB 167 …. 7.6 — v Keogh [1995] SASC 5397 …. 10.11, 10.12.1, 10.12.10 — v — (No 2) (2014) 121 SASR 307; [2014] SASFC 136 …. ix, 4.5, 6.1, 6.5.2,

6.5.5–6.5.8, 6.7, 8.17, 10.11–10.11.10, 10.12.3–10.15, 11.5 — v — (No 3) (2014) 121 SASR 410; [2014] SASCFC 137 …. 10.2, 10.13.2 — v Kingston-upon-Thames Justices, Ex parte Khanna [1986] RTR 364 …. 7.6 — v Klamo (2008) 18 VR 644; 184 A Crim A 262; [2008] VSCA 75 …. 5.2.1, 5.10, 8.15.4, 9.4.2, 9.4.7, 9.5–9.6.2, 11.5.4 — v Kotzmann [1999] 2 VR 123; 105 A Crim R 243; [1999] VSCA 27 …. 9.3.3 — v Leyland Justices, Ex parte Hawthorn [1979] QB 283; [1979] 1 All ER 209 …. 7.6 — v Liverpool Crown Court, Ex parte Roberts [1986] Crim LR 622 …. 7.6 — v Lucas [1992] 2 VR 109; (1991) 55 A Crim R 361 …. 9.3.2 — v M(S) 1991 WL 1139467 …. 12.6.1 — v Maguire (1991) 94 Cr App R 133 …. 6.2, 12.9 — v Matheson [1958] 1 WLR 474; [1958] 2 All ER 87 …. 9.6 — v Mattan [1998] EWCA Crim 676 …. 8.6 — v Maughan [2004] NICA 21 …. 3.7.1, 6.6 — v Maynard [2002] EWCA Crim 1942 …. 5.9.2 — v McIlkenny (1991) 93 Cr App R 287 …. 6.2, 11.7.3.1, 12.9 — v McVittie [2005] NSWCCA 267 …. 8.6 — v Meher [2004] NSWCCA 355 …. 5.2.3 — v Mohan [1994] 2 SCR 9 …. 9.4.8 — v Mullen [1999] EWCA Crim 278 …. 5.9.2 — v Mullins-Johnson [2007] ONCA 720 …. 12.6.5 — v — (1998) 124 CCC (3d) …. 12.6.5 — v — (1996) 112 CCC (3d) 117 …. 12.6.5 — v Munro [2006] VSCA 94 …. 11.5 — v Murphy (1985) 158 CLR 596; 61 ALR 139; [1985] HCA 50 …. 4.7 — v Nguyen (2010) 242 CLR 491; 271 ALR 493; [2010] HCA 38 …. 5.2.1 — v — [2005] VSCA 120 …. 11.5 — v Nicholls [1998] EWCA Crim 1918 …. 6.4 — v O’Brien [2000] EWCA Crim 3 …. 7.3, 8.3

— v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 …. 11.3 — v Parenzee (2008) 101 SASR 469 [2008] SASC 245 …. 3.3.1 — v Patton (1995) 80 A Crim R 595 …. 11.5 — v Pegg [1988] Crim LR 370 …. 3.7.1 — v Pendleton [2002] 1 WLR 72; [2002] 1 All ER 524; [2001] UKHL 66 …. 3.2, 5.9.2, 7.3 — v Perry (No 4) (1981) 28 SASR 119 …. 9.2 — v Phillion 2009 ONCA 202 …. 7.3 — v Pinfold [1988] QB 462; [1988] 2 All ER 217 …. 3.7.1 — v Pitman (1916) 12 Cr App Rep 14 …. 3.3.1, 3.7.1 — v PL (2009) 261 ALR 365; 199 A Crim R 199; [2009] NSWCCA 256 …. 11.5.1 — v Reardon (No 2) (2004) 60 NSWLR 454; 146 A Crim R 475; [2004] NSWCCA 197 …. 3.3.1, 8.5 — v Recorder of Leicester, Ex parte Wood [1947] KB 726; [1947] 1 All ER 928 …. 7.4, 7.6 — v Redmond [2006] VSCA 75 …. 11.5 — v Reed [2009] EWCA Crim 2698 …. 9.5 — v Rendell (1987) 32 A Crim R 243 …. 9.12 — v Richardson (EWCA Criminal Division, 20 October 1989, unreported) …. 6.2, 11.7.3.1, 12.9 — v Ryan [2002] VSCA 176 …. 11.5 — v Sarson [1996] 2 SCR 223 …. 3.8.1 — v Saxon (1998) 101 A Crim R 71 …. 3.3.1 — v Secretary of State for the Home Department, Ex parte Bateman (1994) 7 Admin LR 175 …. 11.6.3.1 — v Secretary of State for the Home Department, Ex parte Bentley [1993] 4 All ER 442 …. 4.3.2, 4.41 — v Secretary of State for the Home Department, Ex parte Cheblak [1991] 1 WLR 890 …. 2.4.5 — v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74; [1983] 1 All ER 765

— v Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539; [1997] 3 All ER 577 — v Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115; [1999] 3 All ER 400 …. 2.5.8 — v Shah [2007] SASC 68 …. 9.6 — v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37 …. 5.2.3 — v Smith (2007) 179 A Crim R 453; [2007] QCA 447 …. 8.3 — v — [2003] 3 NZLR 617 …. 3.3.1 — v — [2000] 1 All ER 263 …. 5.9.2 — v — [1999] 2 Cr App R 238 …. 5.9.3 — v — (1915) 11 Cr App R 229 …. 10.5 — v Soma (2003) 212 CLR 299; 196 ALR 421; [2003] HCA 13 …. 5.2.1–5.3 — v Stafford [2009] QCA 407 …. 5.6, 8.2, 11.5.1 — v Stanley [2015] 1 Qd R 118; [2014] QCA 116 …. 7.1, 7.7, 7.7.2, 7.7.2.1 — v Szach (1980) 23 SASR 504; 2 A Crim R 321 …. 10.4 — v Tait (1979) 24 ALR 473 …. 11.3 — v Tang (2006) 65 NSWLR 681; 161 A Crim R 377; [2006] NSWCCA 167 …. 9.4, 9.4.1, 9.4.4, 9.4.6, 9.4.7, 9.4.8 — v Taufahema (2007) 228 CLR 232; 234 ALR 1; [2007] HCA 11 …. 11.5, 11.5.1 — v Thomas (No 4) (2008) 19 VR 214; [2008] VSCA 107 …. 8.5, 11.5 — v Togher [2001] 3 All ER 463 …. 5.9.2 — v Treadaway [1996] EWCA Crim 1457 …. 6.2, 12.9 — v Trotta [2007] 3 SCR 453 …. 3.8.2 — v Turner [1975] QB 834; [1975] 1 All ER 70 …. 9.3.2 — v Twitchell [2000] 1 Cr App Rep 373 …. 11.7.3.2, 12.9 — v — (EWCA, 26 October 1999, unreported) …. 6.2 — v Upson (No 2) (2013) 229 A Crim R 275; [2013] QCA 149 …. 6.5.3 — v Van Beelen (No 3) (1973) 7 SASR 125 …. 8.1, 10.3 — v Walsh [2007] NICA 4 …. 3.7.1 — v Ward (1993) 93 Cr App R 1 …. 8.5.1

— v — [1993] 1 WLR 619; (1992) 96 Cr App Rep 1 …. 9.1 — v Weiss (No 2) (2006) 164 A Crim R 454; [2006] VSCA 161 …. 5.5 — v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24; [1973] 3 All ER 289 …. 7.7 — v Wilkes (1948) 77 CLR 511; [1950] ALR 168; [1948] HCA 22 …. 11.5, 11.5.2 — v Wilton (1981) 28 SASR 362; 4 A Crim R 5 …. 11.5 — v Wolverhampton Crown Court, Ex parte Crofts [1983] 1 WLR 204; [1982] 3 All ER 702 …. 7.4 — v XY (2014) 40(2) Mon LR 389 …. 9.6.2 — v Young (No 2) [1969] Qd R 566 …. 4.5.2, 4.8 — (Adams) v Secretary of State for Justice [2012] 1 AC 48; [2011] 3 All ER 261; [2011] UKSC 18 …. 11.6.3.1 — v — [2010] QB 460; [2010] 3 WLR 63; [2009] EWCA Civ 1291 …. 11.6.3.1 — v — [2009] EWHC 156 …. 11.6.3.1 — (Boston) v CCRC [2006] EWHC 1966 (Admin) …. 12.9.4 — (Burns) v County Court Judge of Tyrone [1961] NI 167 …. 7.4, 7.6 — (Director of Revenue and Customs Prosecutions) v CCRC [2006] EWHC 3064 (Admin) …. 12.9.4 — (Jackson) v Attorney General [2006] 1 AC 262; [2005] 4 All ER 1253; [2005] UKHL 56 …. 2.4.6 — (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1; [2004] 3 All ER 65; [2004] UKHL …. 11.1 — (O’Brien) v Independent Assessor [2007] 2 AC 312; [2007] 2 All ER 833; [2007] UKHL 10 …. 11.6.3.2 — (Shields) v Secretary of State for Justice (2009) Crim LR 648 …. 4.3 — (Shields) v Secretary of State for Justice [2010] QB 150; [2009] 3 All ER 265 …. 4.1 Railway Express Agency v New York 336 US 106 (1949) …. 2.4.4 Ramalingam Ravinthran v Attorney-General [2012] SGCA 2 …. 2.5.2 Ramsay v Watson (1961) 108 CLR 642; [1963] ALR 134; [1961] HCA 65 …. 9.3.2 Randall v R [2002] 1 WLR 2237; [2002] UKPC 19 …. 8.3

Ratten, Re [1974] VR 201 …. 4.4.2 Ratten v R (1974) 131 CLR 510; 4 ALR 93; [1974] HCA 35 …. 6.5.5.1, 6.5.7, 10.1.4.1.3, 10.14.1.4 Rayson v South London Tramways [1893] 2 QB 304 …. 11.7.1.5 Reddaway v Banham [1896] AC 199 …. 7.4 Rees v Sinclair [1974] 1 NZLR 180 …. 11.7.3.3 Rejfek v McElroy (1965) 112 CLR 517; [1966] ALR 270; [1965] HCA 46 …. 7.7.1.1 Richardson v R (1974) 131 CLR 116; 3 ALR 115 …. 8.3 Ridgeway v R [1983] 2 NSWLR 19; 9 A Crim R 43 …. 11.5 Ronald v Harper (1913) VLR 311 …. 7.7.1.1 Ross, Re (2007) 19 VR 272; [2007] VSC 572 …. 4.4.1, 4.4.2 Ross v R (1922) 30 CLR 246; 28 ALR 138; [1922] VLR 329; [1922] HCA 4 …. 4.41

S S v R (1989) 168 CLR 268; 89 ALR 321; [1989] HCA 66 …. 5.5 Saif Ali v Sydney Mitchell & Co [1980] AC 198; [1978] 3 All ER 1033 …. 11.7.2 Shepherd v R (1990) 170 CLR 573; 97 ALR 161; [1990] HCA 56 …. 9.4.7 Shin Kobe Maru v Empire Shipping Co Inc (1994) 68 ALJR 311 …. 3.3.1 Simic v R (1980) 144 CLR 319; 30 ALR 519 …. 5.2.2, 5.2.3 Sinanovic’s Application, Re (2001) 180 ALR 448; [2001] HCA 40 …. 3.3.2, 4.1, 8.12 Sinanovic v R (1998) 154 ALR 702; 72 ALJR 1050; [1998] HCA 40 …. vii Sinkovich v A-G (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 …. 3.3.1, 3.4.3, 4.5.2, 4.9 SKA v R (2011) 243 CLR 400; 276 ALR 423; [2011] HCA 13 …. 5.2.1, 5.10 Smith v R (2001) 206 CLR 650; 181 ALR 354; [2001] HCA 50 …. 9.2 South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 …. 2.3.2, 2.5.6, 4.9 Spies v R (2000) 201 CLR 603; 173 ALR 529; [2000] HCA 43 …. 11.5

Splatt v R (1979) 21 SASR 211 …. 8.9 Stafford v DPP [1974] AC 878; (1973) 58 Cr App Rep 256 …. 8.16 Stanoevski v R (2001) 202 CLR 115; 177 ALR 285; [2001] HCA 4 …. 11.5.1 Stanton v Callaghan [2000] 1 QB 75; [1998] 4 All ER 961 …. 11.7.3.4 Stuart v R (1959) 101 CLR 1; 33 ALJR 113b …. 3.4.2, 8.7 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 35 …. 7.1, 7.3–7.6, 7.7.2

T Taylor v Lawrence [2003] QB 528; [2002] 2 All ER 353; [2002] EWCA Civ 90 …. 7.2 — v R (1978) 45 FLR 343; 22 ALR 599 …. 9.6 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; 124 ALR 1; [1994] HCA 46 …. 2.5.1 Thomas v R [1980] AC 125; [1978] 2 NZLR 1 …. 4.4, 4.4.2 TKWJ v R (2002) 212 CLR 124; 193 ALR 7; [2002] HCA 46 …. 4.8, 5.2.2–5.3, 6.5.7 Tran v R (2000) 105 FCR 182; 118 A Crim R 218; [2000] FCA 1888 …. 11.5.2 Treadaway v Chief Constable of Police for the West Midlands (Queen’s Bench Division, 25 October 1994, unreported) …. 11.7.3.2 Truscott, Re 2007 ONCA 575 …. 10.3 Truscott, Re [1967] SCR 309 …. 3.8.3 Tsang Ping-nam v R [1981] 1 WLR 1462; (1981) 74 Cr App Rep 139 …. 11.5.2 Tuckiar v R (1934) 52 CLR 335 …. vi Tuite v R [2015] VSCA 148 …. 9.4.8

U Ukraine-Tyumen v Ukraine, 22 November 2007 …. 2.4.6 United States v Antonelli Fireworks Co 155 F (2d) 631 (1946) …. 8.10

V Varley v A-G (NSW) (1987) 8 NSWLR 30; 24 A Crim R 413 …. vi, vii, 3.4.3, 6.5.1

Vella v R (1991) 4 WAR 278; 52 A Crim R 298 …. 3.3.1 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; [1932] ALR 22 …. 3.3.2 Von Deutschburg v R [2013] WASCA 57 …. 8.6 Von Einem v Griffin (1998) 72 SASR 110; [1998] SASC 6858 …. 3.3.1, 3.4.1, 3.7.1, 4.1, 4.2, 4.5.1, 4.5.2, 4.7–4.9, 6.2, 6.5.4

W Wainohu v NSW (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 …. 3.5.2.1, 4.9 Ward v R (1981) 3 A Crim R 171 …. 11.5 — v — (1993) 96 Cr App R 1 …. 6.2, 11.7.3.1, 12.9 Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 …. 7.5 Watson v South Australia (2010) 278 ALR 168; [2010] SASCFC 69 …. 4.1 Weiss v R (2005) 224 CLR 300; 223 ALR 662; [2005] HCA 81 …. 4.5, 5.2.1, 5.5, 5.6, 5.10, 6.5.7 Western Australia v Rayney (2013) 46 WAR 1; [2013] WASCA 219 …. 11.2 — v — (No 3) [2012] WASC 404 …. 8.16, 11.2 Werribee Shire Council v Kerr (1928) 42 CLR 1; 2 ALJR 329 …. 3.3.2 Westlake v CCRC [2004] EWHC 2779 …. 4.3, 4.3.3, 12.9.4 Whitehorn v R (1983) 152 CLR 657; 49 ALR 448; [1983] HCA 42 …. 5.6, 5.10, 8.3 Wilde v R (1988) 164 CLR 365 …. 5.5 Wilson v R [1995] 1 VR 163; (1994) 73 A Crim R 190 …. 11.5 — v Wilson [1968] 3 NSWR 123; (1967) 10 FLR 203 …. 5.6 Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 …. 5.8, 6.5.5.1, 6.5.9.1, 8.14–8.14.4, 9.2, 9.5, 9.13–9.13.6 Woolmington v DPP [1935] AC 462 …. 5.5, 5.7

Y York v R (2005) 225 CLR 466; 221 ALR 541; [2005] HCA …. 4.9

Table of Statutes References are to paragraph numbers

Commonwealth Administrative Decisions (Judicial Review) Act 1977 …. 4.1, 4.5–4.7 Constitution …. 3.3.2 Ch 3 …. 4.4.2 s 73 …. 3.3.2 s 75(v) …. 4.9 s 80 …. 3.3.2 Crimes Act 1914 …. 4.3 s 50BA …. 4.6 s 85ZR …. 4.3 Evidence Act 1995 …. 8.7, 9.1, 9.4 s 55 …. 9.2 s 76 …. 9.4 s 79(1) …. 9.4 Federal Court of Australia Act 1976 s 30AJ(1)(c) …. 5.4 s 30AJ(2) …. 5.4 Judiciary Act 1903 …. 3.3.2, 4.5, 11.5.4 s 2 …. 4.7 s 44 …. 3.3.2 s 55ZF …. 11.5.4 s 68 …. 4.2, 4.5, 4.7 Royal Commissions Act 1902 …. 3.4.2 Supreme Court Rules 1970 …. 9.5 Pt 75 r 3(j) …. 9.5 Uniform Evidence Act 1995 …. 1.3, 9.6.2

s 79(1) …. 9.6.2

Australian Capital Territory Crimes Act 1900 …. 3.5.2, 4.2 Pt 20 …. 4.2, 4.4 s 422 …. 3.5.2, 3.5.2.1, 3.5.2.2, 4.2 s 423 …. 3.5.2, 4.2 s 424 …. 3.5.2, 3.5.2.1, 3.5.2.2, 4.2, 4.5.1 s 425 …. 3.5.2, 4.2 s 426 …. 3.5.2 s 427 …. 3.5.2 s 428 …. 3.5.2 s 429 …. 3.5.2 s 430 …. 3.5.2 s 431 …. 3.5.2.1 s 431(1) …. 3.5.2.1 Evidence Act 2011 …. 9.1 Human Rights Act 2004 …. 2.6.1, 11.6, 11.6.4.1 s 18(7) …. 11.6.4.1 s 23 …. 11.6, 11.6.4.1 Inquiries Act 1991 …. 3.5.2 Legislation Act 2001 …. 3.5.2.1 s 120 …. 3.5.2.1 Royal Commissions Act 1991 …. 3.4.2 Supreme Court Act 1933 …. 5.2, 5.10 s 37O …. 5.2, 5.10 s 37O(2) …. 5.10 s 37O(3) …. 5.10

New South Wales Crimes Act 1900 …. 3.4.3 s 475 …. 3.4.3, 4.3.4, 9.12

Crimes (Appeal and Review) Act 2001 …. 3.4.1, 3.4.3, 4.2, 6.5.10, 11.3, 11.4 Pt 7 …. 3.5.1.2, 4.2 ss 76–82 …. 3.4.1, 3.4.3, 3.5.1–3.5.3, 4.2, 4.3.4, 4.4 s 100 …. 6.5.10, 11.4 s 107(1) …. 11.3 s 107(2) …. 11.3 Criminal Appeal Act 1912 …. 3.2, 3.3.1, 3.4.3, 3.5.1.3, 5.2, 11.3, 11.5 s 5 …. 3.3 s 6 …. 5.2, 11.5 s 8 …. 11.4 s 8(1) …. 11.5 s 12 …. 3.4.3 s 12(d) …. 3.4.3 s 12(e) …. 3.4.3 s 12(2) …. 3.5.1.3 Criminal Appeal Rules …. 3.4.3 r 68 …. 3.4.3 r 69 …. 3.4.3 Criminal Procedure Act 1986 …. 8.3 Director of Public Prosecutions Act 1986 …. 8.5, 8.5.1 s 13 …. 8.5 s 15A …. 8.5.1 Evidence Act 1995 …. 8.14.4, 9.1, 9.2, 9.3.1, 9.3.3, 9.13.4 s 78 …. 9.1 s 79 …. 9.2 s 79(1) …. 9.14.1 s 137 …. 9.13.4, 9.14.3 Law Enforcement (Powers and Responsibilities) Act 2002 …. 8.2 Royal Commissions Act 1923 …. 3.4.2, 3.5.1 Special Commissions of Inquiry Act 1983 …. 3.4.2 Uniform Civil Procedure Rules 2005 …. 9.5 r 31.23 …. 9.5

Sch 7 …. 9.5 Uniform Evidence Act …. 9.4.3 s 135 …. 9.4.3 s 137 …. 9.4.3

Norfolk Island Evidence Act 2004 …. 9.1

Northern Territory Criminal Code Act …. 3.4.1, 3.4.3, 4.2, 4.3.1, 4.4, 9.11.7, 11.5 s 410 …. 3.3 s 411 …. 5.2 s 411(3) …. 11.5 s 413 …. 11.5 s 419 …. 3.4.3 s 431 …. 3.4.1, 4.2, 4.4 s 433A …. 9.11.7, 11.1, 11.5.3 s 433A(1) …. 4.3.1 s 433A(5) …. 4.3.1 Evidence Act 2013 …. 9.1 Inquiries Act 1945 …. 3.4.2

Queensland Commissions of Inquiry Act 1950 …. 3.4.2 Criminal Code 1899 …. 3.3, 3.4.1, 4.2, 4.4, 4.9, 5.2, 6.5.10, 8.3, 11.4 s 433A …. 9.8 s 668D(1) …. 3.3 s 668(E) …. 5.2 s 669A(1) …. 4.9 s 672A …. 3.4.1, 4.2, 4.4, 4.7, 8.12 s 678 …. 6.5.10, 11.4 Criminal Justice Act 1989 …. 8.12

Judicial Review Act 1991 …. 4.7 Uniform Civil Procedure Rules 1999 …. 9.5 Pt 5 …. 9.5

South Australia Criminal Law Consolidation Act 1935 …. 3.3, 3.4.3, 4.2, 4.3, 4.4, 4.7, 5.2, 6.5, 6.5.7, 6.5.10, 6.7, 8.3, 10.12.13, 10.13, 11.3–11.5 Pt 10 …. 6.5.10, 11.4 ss 331–338 …. 6.5.11 s 337(1) …. 6.5.10 s 352(1) …. 3.3 s 352(1)(a)(i) …. 6.7 s 352(1)(a)(ii) …. 6.7 s 352(1)(ab) …. 11.3 s 353 …. 5.2, 6.7 s 353(2) …. 11.5 s 353(A) …. 10.12.13 s 353A(1) …. 6.5, 6.5.5, 6.5.5.1, 6.7 s 353A(3) …. 6.5, 6.5.5, 6.5.5.1, 6.7 s 353A(2) …. 6.5.2, 6.5.5.1, 6.5.6.1 s 353A(4) …. 11.5 s 353A(6) …. 6.5.5.1, 6.5.7 s 357(3) …. 6.5.2 s 357(4) …. 6.5.2 s 359 …. 3.4.3 s 359(d) …. 3.4.3 s 369 …. 3.4.1, 4.2, 4.4, 4.5.1, 4.9 s 369(a) …. 4.7.1, 6.5.7 s 369(2) …. 3.4.1 Medical Practice Act 2004 …. 10.12.12 Royal Commissions Act 1917 …. 3.4.2 Statutes Amendment (Appeals) Act 2013 …. 6.3, 6.5.7

Summary Offences Act 1935 …. 8.2 Pt 17 …. 8.2 Summary Procedure Act 1921 …. 8.5.2 s 104 …. 8.5.2 Supreme Court Act 1935 …. 6.5.2 s 48(3) …. 6.5.2 s 48(4) …. 6.5.2

Tasmania Commissions of Inquiry Act 1995 …. 3.4.2 Criminal Code Act 1924 …. 3.3, 3.4.1, 3.4.3, 4.2, 4.4, 5.2, 6.5.10, 11.3–11.5 Ch XLIV …. 6.5.10, 11.4 s 40 (1) …. 3.3 s 390 …. 11.3 s 402(3) …. 11.5 s 402(4A) …. 11.3 s 404(1) …. 5.2 s 409 …. 3.4.3 s 419 …. 3.4.1, 4.2, 4.4 Sch 1 …. 11.3 Evidence Act 2001 …. 9.1

Victoria Charter of Human Rights and Responsibilities Act 2006 …. 2.6, 2.6.1 Civil Procedure Act 2010 …. 9.5 Pt 6.4 …. 9.5 Crimes Act 1958 …. 4.2, 4.4, 11.5 s 568(2) …. 11.5 s 584 …. 4.2, 4.4 Criminal Procedure Act 2009 …. 3.3, 3.4.3, 5.2, 5.5, 6.5.5.2, 6.5.10, 8.3, 11.4 Ch 7A …. 6.5.10, 11.4 s 42 …. 8.5

s 111 …. 8.5 s 185 …. 8.5 s 274 …. 3.3 s 276 …. 3.3, 5.2, 5.5 ss 317–320 …. 3.4.3 s 327 …. 3.4.1 Evidence Act 2008 …. 8.15, 9.1 s 79(1) …. 9.4.8 s 98 …. 8.15 s 135 …. 9.4.8 s 137 …. 9.4.8

Western Australia Criminal Appeals Act 2004 …. 3.3, 6.5.10, 11.3, 11.4 s 24(2) …. 11.3 s 27(1) …. 3.3 s 40 …. 3.4.3 s 41(4)(b) s 46 …. 6.5.10, 11.4 Criminal Code Act Compilation Act 1913 …. 5.2, 11.5 s 689 …. 5.2 s 689(1) …. 11.5 Criminal Procedure Act 2004 …. 8.3 Royal Commissions Act 1968 …. 3.4.2 Sentencing Act 1995 …. 3.4.1, 4.2, 4.4 ss 137–140 …. 3.4.1, 4.2, 4.4

International Charter of Fundamental Rights of the European Union …. 2.3.2 Article 47 …. 2.3.2 European Convention on Human Rights 1950 …. 2.4, 2.6 International Covenant on Civil and Political Rights …. 2.6, 2.6.1, 3.5.2.2, 4.1,

4.9, 5.12, 6.2, 6.7, 11.6.2 Art 2(2) …. 2.6.1, 3.5.2.2 Art 2(3) …. 4.9 Art 2(3)(a) …. 2.6.1 Art 2(3)(b) …. 2.6.1 Art 9(1) …. 2.6.1 Art 9(3) …. 2.6.1 Art 9(5) …. 2.6.1 Art 14 …. 2.6.1, 6.7 Art 14(5) …. 4.9, 6.7 Art 14(6) …. 2.6.1, 11.6.2, 11.6.3 Art 50 …. 2.6.1 Universal Declaration of Human Rights …. 2.4, 2.4.5 Preamble …. 2.4

Canada Coroners Amendment Act 2009 …. 12.6.6 Criminal Code …. 3.8.3 s 696.3 …. 3.8.3 s 696.3(3) …. 3.8.3 s 696.4 …. 3.8.3 Supreme Court Act 1985 …. 3.8.2 s 62(3) …. 3.8.2

United Kingdom Act of Settlement 1701 …. 2.4 Anti-Social Behaviour, Crime and Policing Act 2014 …. 11.6.3.1 ss 1ZA–133 …. 11.6.3.1 Bill of Rights 1689 …. 2.4 Constitutional Reform Act 2005 …. 2.4, 2.4.2 s 5 …. 2.4.2 s 31 …. 2.4.2

Crime and Punishment (Scotland) Act 1997 …. 12.9.1 c.48 s 25 …. 12.9.1 Criminal Appeal Act 1995 …. 3.7.3, 4.1, 5.6, 6.4, 6.6, 12.9.1, 12.9.2 s 3 …. 4.1 s 8 …. 12.9.1 s 13 …. 6.4, 12.9.2 s 13(2) …. 6.4, 12.9.2 s 13(b)(i) …. 6.6 s 14 …. 12.9.3 s 15 …. 12.9.2 s 16 …. 12.9.2 s 16(2) …. 4.1 ss 17–23 …. 12.9.2 s 33(2) …. 3.7.2 Criminal Appeal Act 1968 …. 3.7.2, 3.7.3, 5.8, 12.9.5 s 1 …. 5.8 s 2 …. 5.8 s 2(1) …. 5.8 s 17 …. 3.7.3 s 19 …. 4.1 s 38 …. 12.9.4 Criminal Appeal Act of 1907 …. 1.3, 3.2, 4.1, 4.5.2, 4.8, 5.2, 5.7, 6.2 Criminal Justice Act 1988 …. 5.8, 11.6.3–11.6.3.2, 12.9.3 s 43 …. 5.8 s 133(1) …. 11.6.3, 11.6.3.1 s 133A …. 11.6.3.2 s 315 …. 12.9.3 Criminal Justice and Immigration Act 2008 …. 11.6.3.2 s 61 …. 11.6.3.2 Criminal Procedure Rules 2014 …. 9.6.2 Pt 33 …. 9.6.2 Human Rights Act 1998 …. 2.6

Judicature Act 1873 …. 7.6.1, 7.7.1.1 Judicature Act 1875 …. 7.6.1, 7.7.1.1 Magna Carta 1215 …. 2.4, 2.4.5 cl 39 …. 2.4 cl 40 …. 2.4 Petition of Right 1628 …. 2.4, 2.4.5 Police and Criminal Evidence Act …. 12.9.2 Supreme Court Act 1981 …. 5.9 s 59 …. 5.9

Contents Foreword Preface Acknowledgments Table of Cases Table of Statutes

PART I

Introduction

Chapter 1

Introduction and Overview

Chapter 2

Institution of Law, Rule of Law and Human Rights

PART II

The Structure of Criminal Appeal Rights

Chapter 3

Reopening Criminal Appeals in Australia

Chapter 4

Post-appeal Petitions

Chapter 5

Grounds of Appeal in Australian Criminal Cases

Chapter 6

The Right to a Second or Subsequent Appeal

Chapter 7

Fraud in Criminal Proceedings

PART III

Law and Case Studies

Chapter 8

Investigations and Prosecutions

Chapter 9

Expert Witnesses in Criminal Cases

Chapter 10

The South Australian Cases

PART IV

Systemic Reponses to Miscarriages of Justice

Chapter 11

Post-appeal and Post-exoneration Issues

Chapter 12

Systemic Responses to Miscarriages of Justice

Index

[page 1]

PART I Introduction Chapters 1 Introduction and Overview 2 Institution of Law, Rule of Law and Human Rights

[page 3]

Chapter 1 Introduction and Overview 1.1 Introduction Our discussion in this book takes place in four parts. In Part I this introduction refers to the data on the prevalence of successful appeals in criminal cases; it clarifies how we use the terms ‘wrongful conviction’ and ‘miscarriage of justice’; and it then provides a guide to the issues which we discuss in the following chapters. Chapter 2 introduces the theoretical framework which is necessary to link our discussion of criminal appeal rights to issues of human rights and the rule of law. Part II involves an analysis of the systemic and procedural aspects of the criminal appeal system in Australia. The suggestion is that the procedural rules which provide access to the courts for the review of criminal trials have been deficient in some way and are either confusing or dysfunctional. In some cases they inhibit and in others they prohibit effective review of such cases. This is clearly unfortunate for those who may have been inappropriately dealt with by the criminal justice system. However, it is also unfortunate for the legal system itself and for those who work in it. An efficient and effective review mechanism is beneficial in all social systems. The early detection of error means that corrective steps can be taken so as to minimise the adverse effects of errors and misunderstandings. The enhancement of learning through the identification of error also has a therapeutic effect on the avoidance of future error. At each stage of our discussion, we provide a detailed explanation of the current arrangements, accompanied by a critique of them as a prelude to suggestions for reform. Part III provides an internal review of some of the key issues facing major strategic players in the criminal part of our legal system. We look to the role of investigators, prosecutors and expert witnesses. As we would expect, clearly stated and publicly accessible statements relate to the respective roles and

functions of each. They are admirable in terms of their clarity and nobility of function and purpose. We take the opportunity to outline some of the key legal issues each role is required to address. The difficulty is that in practice, in a number of high-profile cases, there have been significant departures from those statements of the scope of the roles. We examine a number of those cases, in the context of each of our major sets of players. The implicit concerns here are how such departures have occurred and whether we can be confident that they will not reoccur. [page 4] In Part IV, we look at some of the consequences which follow from the recognition of error in criminal cases. Again, there are both internal and systemic factors to be considered. The internal factors involve considerations as to when it is appropriate to rerun a criminal trial and when it is appropriate to put an end to that process. A decision either way involves a complex range of factors and both public and private interests. The systemic review helps us to develop a general awareness of the possibility and prevalence of error, particularly in the context of the use of forensic evidence in criminal trials. The information which is currently emerging is likely to present significantly greater challenges to our criminal appeal system in future years. This may well be an opportune time to consider system-wide responses to these problems. Again, we have suggestions to make about how this could be done. As a preliminary to our overview of the discussion of this book it might be appropriate to give some indication of the prevalence of successful criminal appeals in Australia.

1.1.1 Research data on criminal appeals A report published in 2013 analysed successful criminal appeals in Australia over a period of 7.5 years.1 It identified 614 successful appeals: 481 from the District Courts or the County Court of Victoria and 133 from the Supreme Courts. The difference reflects the fact that Supreme Courts have little original jurisdiction in criminal matters, other than for their exclusive jurisdiction in homicide cases. The research arose from a request by the Chief Justice of South Australia to try

and identify cases where judicial error, especially in directions in criminal trials, had led to convictions being overturned on appeal. It was found that the highest number of successful appeals (83) were on the basis of unreasonable or unsupportable jury verdicts. The report pointed out that such findings can arise without error by the judge at trial, as the judge has very limited powers to stop cases, even if it is thought that a guilty verdict could be set aside on appeal.2 [page 5] There were 42 cases involving judicial errors in summing up to juries. These included a failure to put adequately the defence case, an imbalance in presenting the issues to the jury, and prejudicial comments or misstating the evidence. There were 32 cases in which judges misunderstood the elements of the offence in question. There were 27 cases involving the issue of lies by the accused as evidence of guilt. The report said the law in this area has become too complex for juries to understand, and a simple solution would be to discourage prosecutors from ‘misplaced reliance on alleged lies for the reasons spelt out in R v Heyde’.3 There were 25 cases which involved ‘excesses of prosecuting counsel’, which was described as the second most revealing conclusion from the study. The major issues were inadequate disclosure (in nine cases), failing to give advance notice of issues first relied upon in the final address (five cases) and intemperate or inflammatory comments (three cases). There were 20 cases involving expert evidence. The report said this was unexpected, as ‘the applicable principles are well settled’.4 It was noted that most errors emerge at the point of admissibility and involve experts either going beyond their area of expertise or dealing with an issue where the jury could apply its own knowledge and experience. The recommended solution was to pay close regard to the principles outlined in Makita v Sprowles.5 There were 17 cases involving ‘fresh evidence’. It was said that this category was unlikely to reflect adversely on the trial judge as it involved evidence which came to light after the trial was concluded. There were eight appeals relating to issues of ‘circumstantial evidence’ and two cases where the prosecution could not exclude an hypothesis consistent with innocence. The report noted that ‘the Court of Criminal Appeal of Victoria more

frequently intervenes than other Courts of Criminal Appeal’. There were 186 successful appeals there, compared to 156 in Queensland and 107 in New South Wales. It concluded, ‘[t]here is also an evident unwillingness by the Court of Criminal Appeal to readily apply the proviso [to uphold a conviction in the face of error at trial], which some might think is not such a bad thing!’6 The fact that there were over 600 successful appeals in Australia over a period of 7.5 years gives at least some indication of the number and range of errors which have been identified. It does not allow us to draw any inferences about how that number might change following the establishment of a new statutory right of appeal, but it does indicate that there is a significant number of trials in which appealable error occurs. [page 6]

1.2 ‘Wrongful conviction’ and ‘miscarriage of justice’ It is only necessary at this stage for us to determine how these terms will be used by us in our discussion in this book. Any case where a conviction has been overturned must in our view amount to a ‘wrongful conviction’, because it will then have been determined to be so by the court system itself. It therefore seems sensible to reserve the expression ‘miscarriage of justice’ to refer to those cases which are eventually recognised to be wrongful convictions, but only after some special or additional procedure has led to their further review by the courts. However, we should bear in mind that given the current grounds of appeal which we discuss in Chapter 5, for any conviction to be overturned, it has first to be identified, according to the wording of the statute, as a ‘miscarriage of justice’. However, that will not be sufficient to ensure the overturning of the conviction. For that to occur, in cases other than ‘fundamental error’ cases, it must be established that the case in fact amounts to a ‘substantial miscarriage of justice’. This can lead to difficulties, as we explain. It means that although a case may have been identified by the legal system as a miscarriage of justice, it may nevertheless result in the conviction being upheld, by the application of the

proviso, because it is not seen to be a substantial miscarriage of justice. Some regard this as unsatisfactory. Because these expressions refer to issues which have a good deal of emotional overlay, they are frequently the subject of intense debate. They can also be the basis upon which further consequences both positive and negative might follow. Whether there should be a retrial or whether compensation should be paid are matters which are keenly contested and which can have profound implications for the future life prospects of those who have been caught up in these cases. As we point out in Chapter 11, there is a wide range of alternative meanings which can be attributed to these expressions, especially by criminologists and sociologists. Our purpose here is not to suggest that our use of these terms is in any way superior to theirs, but simply to identify the simple and straightforward meaning which we attribute to them. That way we will avoid misunderstanding without in any way foreclosing any of the arguments or issues which may need to be addressed. It only remains for us now to provide an overview of the issues which we will raise in the following chapters. [page 7]

1.3 Our step-by-step guide to the discussion 1.3.1 Chapter 2: Institution of Law, Rule of Law and Human Rights We commence our analysis by establishing a legal and theoretical framework for the discussion which is to take place in the following chapters. We need to know what a legal institution is, and we need to understand some of the basic principles about how it is meant to function. We start by using the explanation provided by John Searle as to the general nature of social institutions. These are created by social groups and have no existence independently of those groups. A mountain or a planet may exist whether there are humans to observe it or not, but a ten-dollar note is only a valuable medium of exchange so long as there are people to attribute value to it. What we learn from Searle’s analysis is that groups

of people can collectively create things, like banking and legal systems, which then have an existence independently of any particular member or members of that group. We need to understand how such things come into existence and how they might legitimately be changed. Roughly speaking, we are considering the role of constitutive and transformative or administrative rules. Searle also wants to get to grip with terms such as ‘ontology’ — how things are — and ‘epistemology’ — how we know what things are. These terms help us understand how it makes sense to attribute a degree of objectivity to something which is inherently subjective. Once we have an understanding of social institutions in general, we will then have the requisite knowledge to help us understand the work of Neil MacCormick. As a legal theorist MacCormick was concerned to develop a theory about the institutional nature of law. As a specific form of social institution, the legal system has its own particular rules for identifying what law is and how it might be changed. The key need for anyone who wants to talk about a ‘miscarriage’ of justice is to be able to affirm that there are right and wrong ways of doing things. If law is just a matter of opinion, then, whilst opinions may differ, it cannot be said that any one of them is wrong. MacCormick recognises that there is a great deal of subjectivity and uncertainty surrounding the process of legal reasoning. However, he also asserts that there are ways of defining this particular institutional practice, which enable us to distinguish between valid and invalid exercises of legal power. Legal reasoning, he says, is a species of practical reasoning. It is concerned with the operation of an essentially coercive system. If it is to maintain its legitimacy, and to distinguish itself from ‘tyranny’, it must provide a rational justification for the exercise of power. [page 8] Legal decisions in individual cases must be supported by some ‘legal warrant’ from the existing institutional order of law. Legal officials must provide reasons for decisions which are coherent in both a narrative and normative sense. They must be consistent with the existing body of law, or at least with the fundamental values represented in and by that body of law. ‘Compliance’ with those

fundamental values is a key defining feature of their role, or what Searle would call their ‘status function’. The system of values or basic principles underlying the system of law can be compendiously referred to as ‘the rule of law’. MacCormick’s way of explaining that is certainly abstract and to a large extent philosophical. For the purposes of this book, it is therefore important for us to ensure that it is coherent, consistent and compliant with the way in which senior judges describe their status function. This is why we look to the way in which Lord Bingham (a senior British judge) describes the operation of the rule of law principles. He says that discretion, where it occurs, must operate within clearly defined limits and by reference to appropriate sources which guide the exercise of that discretion. There is no such thing as an unlimited or unconfined discretion. The law must operate according to principles of equality and rationality, which means that like cases must be treated alike, and that the law must respect international human rights. Although they are approaching the topic from very different directions, we can see that there is a good deal of common ground in the principles espoused by the philosopher (MacCormick) and the judge (Bingham). It is important to our discussion to acknowledge recognition of these principles within Australia. We do so by looking to the public discussions of some of Australia’s most senior judges, including the Chief Justice of the High Court of Australia. It is clear from recent statements by Australian judges, both in legal judgments and in extra-legal discussions, that the rule of law principles have practical effect in defining the boundary between the proper and improper exercise of legal power. Those principles also require conformity with human rights and international human rights obligations. By the end of this chapter, we are equipped with a sociological and philosophical grounding to the role of law and of the rule of law and human rights principles. We also have some understanding of the principles of coherence, consistency and compliance as integral aspects of practical and legal reasoning.

1.3.2 Chapter 3: Reopening Criminal Appeals in Australia In Chapter 3 we commence our analysis of the criminal appeal provisions in Australia. Many people are surprised to learn that once a person has been

convicted and has had an unsuccessful appeal, they then have no legal right to any [page 9] further appeal. Even if totally compelling evidence emerges to show that they are innocent of the crime for which they are convicted, they have no legal right to put that evidence before any court. If they apply to the Court of Appeal for a further review of their case, they will be told that the court cannot reopen the previous appeal, and is not allowed to hear a second appeal. But this is where the story gets confusing. They will be told that the appeal rights are the creation of statute and that it is important that the words of the statute are closely followed and strictly applied. However, when we turn to examine the words of the statute, it says nothing about there being only one right of appeal.7 It simply says that a person ‘may’ appeal. The courts have interpreted that to mean ‘one’ appeal. The courts have not followed their own rule of interpretation and closely followed the words of the statute. The courts then go on to say that a further right of appeal is not necessary. For the exceptional case which is not corrected on a first appeal, there is a safety valve in that the Attorney-General has a statutory power to refer a case back to the appeal court. That leads us to another confusing situation. The courts then interpret the statutory referral power to mean that the Attorney-General has an ‘unfettered discretion’ and may refuse a referral for any reason or for no reason at all. When you add to that the fact that an AttorneyGeneral may well decide not to refer a case to the court because it might be unpopular or lead to some embarrassment for the government, what was thought to be a safety valve appears to be closed off. One might think of taking the case to the High Court, but that will not provide any solace. If the case involves any ‘fresh evidence’ which shows that there has been a wrongful conviction, the High Court will say that it cannot admit that evidence for ‘constitutional reasons’. It is interesting to note that these appeal arrangements have been in place in Australia for around 100 years, since being adopted from the United Kingdom Criminal Appeal Act of 1907. They are ‘common form’ provisions, which means that each state and territory in Australia has enacted similar provisions.

Whilst we are outlining the criminal appeal provisions, it is appropriate to identify the various ancillary powers which are available in the Australian Capital Territory and New South Wales, and which allow inquiries to be triggered into possible wrongful convictions in various ways. It is also appropriate to compare the similar provisions which apply in the United Kingdom and Canada. There have been some cases in the United Kingdom (particularly Northern Ireland) which have stated that the appeal court has an inherent power to reopen an appeal. If the Australian statutory provisions have a common source to those of the United Kingdom, then it is difficult to understand why an inherent power there would not also be part of a similar inherent power in Australia. [page 10] Another useful source of comparison is the provisions which apply in Canada. The petition powers there require applications to be made to the Federal Attorney-General. They also require reasons to be given for decisions, and where reasons are given and thought to be inadequate, that tends to open up a discussion about judicial review. That conveniently brings us to the topic for the next chapter, which looks in more detail at the petition referral power.

1.3.3 Chapter 4: Post-appeal Petitions The statutory power allows for an application to be made to the AttorneyGeneral to refer a deserving case to the appeal court for review. Unfortunately, the statutory provision starts by referring to a ‘petition for mercy’. It is therefore necessary in talking about this subject to explain what ‘mercy’ is and how it differs from the powers to be exercised upon a statutory right to an appeal. This has been the source of much unnecessary confusion. The exercise of mercy, in this context, involves an initial acceptance that a person is in fact guilty of a crime. The exercise of mercy then involves releasing the person from some or all of the penalties which might otherwise be applicable. This may be done because they are suffering from a terminal condition and it is thought to be merciful to allow them to be at home for their final days, for example.

If a person claims to have been wrongly convicted, then they do not want to be granted mercy. Release from some part of their punishment will also leave the conviction intact. What they want is for the conviction to be set aside. As the court is the only body with the power to do that, they need access to the court. Unfortunately, the statutory referral power starts off by saying that a person has to lodge a ‘petition for mercy’ first. Having done that, if the petition gives rise to a wrongful conviction issue, it can then be referred to the Attorney-General to consider a referral to the courts. If people clearly understood the difference between mercy and a statutory referral there would be no problem, but because the two are often confused, all sorts of errors ensue. The real problem here is that the leading decision on this issue goes to great lengths to explain that the petition referral process is a matter of an ‘unfettered discretion’, which may be exercised arbitrarily or for any reason or for no reason at all. It even goes so far as to say that a petitioner for a statutory referral to the courts has no legal rights in respect of that petition. That means that we have to spend some time explaining that this position is unconstitutional and contrary to the rule of law and fundamental human rights principles. That decision is also inconsistent with one of the leading decisions in the federal jurisdiction. Interestingly, that decision is interpreting the same state statutory referral power. So, a single statutory provision can mean one thing when being interpreted by a federal court, and another when being interpreted by a state court. As this is a provision dealing with a fundamental right of access to the courts in respect of a matter often concerning the liberty of a person, it is a confusion which is best avoided. [page 11] It is not difficult for us now to explain that the idea of an ‘unfettered discretion’ in the context of a person claiming to be the victim of a miscarriage of justice is contrary to the rule of law principles. It is also contrary to the international human rights principles which give a person an effective right to a review of a conviction. This would be especially so in circumstances where the initial appeal failed because those acting on behalf of the state had concealed or not disclosed information which would have assisted in revealing the existence of a wrongful conviction.

1.3.4 Chapter 5: Grounds of Appeal in Australian Criminal Cases After having discussed the right to having an appeal, it is appropriate to discuss the grounds on which an appeal might be allowed. Our purpose here is to suggest that from the outset, there may have been an underlying error which has contributed to a good deal of confusion over the years. The statutory appeal provisions in Australia were copied from Britain’s Criminal Appeal Act of 1907. At that time in Britain, the various grounds of appeal were accompanied by what was called ‘the proviso’. The proviso said that if a point raised by an appellant on an appeal was successful, the appeal might nevertheless be refused if it was thought that the error at trial did not lead to a ‘substantial miscarriage of justice’. This provision had been necessary in Britain for two reasons. The first was that there had been a history there of setting aside convictions for what were regarded as unmeritorious errors. There may have been technical or procedural errors which it was thought did not affect the merits of the conviction. The second was that Britain at that time did not have a right to order a retrial. That meant that if a conviction was to be set aside, it would lead, in effect, to an acquittal, because of the inability to bring the person back for a further trial. The proviso thus enabled the courts to say that although a point made by the appellant was successful, nevertheless, the conviction would stand. When the appeal provisions were transferred to Australia, the circumstances there were different. There had not been a similar history in Australia of overturning convictions for technical error, and, in addition, Australia, since the introduction of the appeal provisions, always had a right to order a retrial. For these reasons, we say, copying the proviso into the Australian appeal provisions was an error which could well have been avoided. The importance of this point is that the grounds of appeal, in effect, say that an appeal should be allowed where there has been a miscarriage of justice. The effect of the proviso is to say that the error can then be overlooked if the miscarriage of justice does not amount to a ‘substantial’ miscarriage of justice. The net result of this is that there are people who have been convicted of serious criminal offences who can say, with ample justification, that their case has been recognised as a ‘miscarriage of justice’, but that the criminal appeal system in Australia says it can be ignored. On any view that is an unfortunate state of affairs.

[page 12] It is interesting to note that Britain has since revised and simplified its grounds of appeal. It has introduced the right to a retrial. It has also abolished the proviso. We say there are persuasive reasons why Australia should consider similar reforms. We also note that there is a marked difference between both the length and focus of the judgments in criminal appeal cases between Britain and Australia. Britain has legislated to require just one judgment in criminal appeals; the judgments there are invariably considerably shorter, which makes them much easier to comprehend. Once judges identify significant procedural error or other major deficiency in the proceedings, they find it easier to conclude that the conviction must be set aside. In Australia, there is a requirement in cases, other than those involving ‘fundamental error’, for the court to consider the whole of the record of the trial. Appeal judgments, in order to demonstrate that they have considered the whole of the record of the trial, tend to be focussed upon confidence in the outcome of the trial. Many appeal court judgments in Australia are 10 times longer than their counterparts in Britain, or longer. We conclude with some observations about the role of the difference in ‘background values’ of the British and Australian lawyers. Britain has overturned a significant number of major criminal convictions. The IRA bombing cases from the 1970s were overturned in the early 1990s. That led to the establishment of the Criminal Cases Review Commission, which has in turn led to the overturning of nearly 400 criminal convictions. Four people who were hanged have had their convictions overturned. By contrast, in Australia, relatively few convictions have been overturned. Only sporadic insights can be gleaned from those cases, and it would be hard to convince people that the difference is explicable simply by the fact that mistakes are not made in Australian criminal trials. The more likely explanation is that there is no effective review procedure for dealing with miscarriages of justice in Australia. Gradually that is beginning to change.

1.3.5 Chapter 6: The Right to a Second or Subsequent Appeal

In this chapter we set out the experience which has unfolded in South Australia in trying to obtain effective appellate review of what were thought to be wrongful convictions. Various attempts were made to either reopen an appeal, to have a second or further appeal or to have the matter heard by the High Court. Those attempts were all unsuccessful for the reasons explained in Chapter 3. Several attempts were made to engage the petition procedure to obtain a statutory referral to the court, but they too were unsuccessful. In the belief that every wrong demands a remedy, and working from the MacCormick principles that the law should be rational, fair and consistent with the rule of law principles, the lawyers involved then considered other strategies. It was thought to be a good idea to introduce a Bill into the South Australian Parliament to establish a criminal cases review commission (CCRC). That Bill was referred to the Legislative Review Committee (LRC) of the Parliament, which then [page 13] sought public submissions. In the meantime, complaints had been lodged with the Australian Human Rights Commission (AHRC) that the existing procedural rules governing criminal appeals in Australia did not comply with the international human rights obligations which Australia had committed itself to in ratifying the International Covenant on Civil and Political Rights. The AHRC sent a report to the LRC stating that it considered that the criminal appeal system, throughout Australia, did not comply with Australia’s international human rights obligations, in that it failed to protect properly the right to a fair trial and it also failed to ensure the right to an effective appeal. The LRC then recommended that a new statutory right of appeal should be established. It also recommended that a forensic review panel should be established with the power to refer questionable cases back to the appeal court for review. It also recommended setting up a review of the way in which ‘expert evidence’ is used in criminal trials. The Parliament in South Australia decided to implement the first of those three recommendations. Whilst it was an excellent idea in principle, there were some problems with the details of the recommendation. The Parliament had modelled the new statutory right of appeal upon the legislation which had previously granted an exception to

the double-jeopardy provisions. We say that this was a further error introduced into the statutory appeal provisions. The legislation grants the right to a second or further appeal in circumstances where there is ‘fresh and compelling’ evidence. However, there are other types of errors which may have occurred at trial and which may not have been identified or corrected on a first appeal: for example, those involving legal error, or evidence which may not satisfy the strict test of ‘fresh and compelling’. On a first appeal they might be sufficient to ensure that the appeal is allowed, but on a second appeal they may not satisfy the more demanding test for leave to appeal. This means that either the test for leave to appeal or the test for allowing the substantive appeal on a second appeal is more demanding than those for a first appeal. This in turn means that the appeal provisions may still not be consistent with the international human rights obligations which require the same procedural rights to be available at each level of appeal. Also, it would offend against the basic rule of law requirements if a conviction which might have been overturned on a first appeal is rejected by the court simply because the same evidence and arguments are being raised as part of a second appeal. It is important to note that the principle of allowing a second or further appeal is a substantial advance over the appeal rights which have been previously allowed in Australia, and also over those which have been allowed in Britain or Canada. The formulation of the right needs to be considered further. Tasmania has committed to introducing a similar right of appeal. Given that the appeal rights have been in ‘common form’ in Australia for just over 100 years, it is obviously important that all states and territories consider restoration of common form provisions and also of compliance with international human rights obligations. [page 14]

1.3.6 Chapter 7: Fraud in Criminal Proceedings The issue of fraud in criminal proceedings is explored in a context where it is said that there is no right to a second or further appeal, and that the right to a statutory referral involves no legal right to even a fair hearing of the application. What if it could be said that the conviction had been obtained by fraud?

The common sense approach to such an analysis would be to say that the courts will not provide their assistance to any person who has obtained any advantage by fraudulent means. The usual expression is that ‘fraud unravels everything’. If a judgment of a court has been obtained by fraud, then it is in effect a ‘nullity’ and to be treated as if it had never happened. If that were true of civil cases, then why would it be any different in criminal cases? The principle is that where a conviction has been obtained by fraud, then what one needs is not an appeal but a procedure by which the court can be informed that it has been duped, and that it be given the opportunity to set aside the erroneously obtained conviction. Happily, in pursuit of the goal that every legal wrong demands a remedy, there are precedents in both the United Kingdom and Australia to support the proposition that such a remedy in fact is recognised in law. Normally, one would think that errors — especially egregious errors — can be fixed on appeal. But here we are considering a situation where there is said to be no right of appeal. Similar situations have occurred in Britain where people had erroneously entered guilty pleas in criminal cases. In some cases, people were told that the forensic tests revealed that they had been driving over the permitted alcohol limit, so they pleaded guilty to the charges. Later they were informed that the test material had been contaminated with ethanol, which is a form of alcohol. The test results were therefore misleading. The problem was that there was no right to an appeal from a guilty plea. The courts said that where a plea had been induced by fraud, deceit or manifest error (conduct amounting to fraud), the person should have the right to have the conviction set aside. Whilst one would hope, of course, that prosecutors would not engage in fraudulent conduct, it is not beyond the realms of possibility that they might do so. However, the ‘prosecution’ for such purposes is wide enough to include the police and others working to assist the police, which may include a wide range of forensic experts. Sadly, experience has shown that the police sometimes engage in conduct amounting not only to fraud but also to torture, as we will see in later chapters. Expert forensic witnesses have sometimes, knowingly and unknowingly, provided false and misleading evidence to the courts. As it was said in one of the cases, once it is established that the evidence given to the court is wrong, the person who is convicted may not be concerned about whether it was provided intentionally or unknowingly. The effect upon the convicted person is the same.

There has been some debate about whether the remedy for fraud is available only in civil cases, or whether it extends also to criminal cases. A rational approach to the issue would suggest that if it is available in the civil courts dealing with [page 15] property and possessions, it should also be available in the criminal courts, where issues of personal liberty are at stake. We discuss some of the Australian case law which appears to support the view that it is available in criminal cases. However, we note that there is a recent Australian case which suggests otherwise, although, for reasons we explain, we are not convinced of the authority of the case or the soundness of the argument put forward there.

1.3.7 Chapter 8: Investigations and Prosecutions At this point in the book, we move to a different type of analysis. Instead of looking to structural and procedural issues in relation to criminal appeals, we look to some of the internal dynamics. Investigators and prosecutors are not infrequently caught up in difficult and demanding case work. The cases may involve tragic circumstances, where emotions and public alarm run high. A young girl attacked and killed in a public city-centre park, or on a popular beach frequented by families and young children. An elderly woman raped and murdered in her own home. In such circumstances, it is not difficult to imagine suspicion falling upon some person seen in or about the area at the time of the alleged offence. In situations of heightened sensitivity or alarm, ‘suspicion’ does not have to amount to anything terribly obvious. In one case the police reported that they thought a person to be suspicious because he ‘played the flute’. In another case a person aroused suspicion because he had an aviary in his back garden. In yet another, the suspicion arose because the people involved did not appear to be responding ‘normally’ to the situation. Indeed, not being ‘normal’ is thought by investigators to be a common sign of delinquency. Others might think that acting normally in a clearly abnormal situation is itself grounds for suspicion.

Public alarm and public pressure to get a result can sometimes provide the environment within which shortcuts, oversights or errors can occur. Of course, investigators and prosecutors work to codes of conduct, manuals and other public policy statements to reassure the public that proper procedures are being followed. However, we must remind ourselves that normative statements contained in rule books are not necessarily descriptive of prevailing practices. In this and the following chapter, we set out what the rules require, whether in formalised statements such as codes of conduct or in the prevailing statements relating to those practices in the judgments of the courts. We then contrast those statements of formal commitments to the actual conduct of players exhibited in some of the cases which have come before the courts. Investigators and prosecutors are required to consider all reasonable possibilities before committing themselves to any one of them. They are to be objective and independent. The rules say that prosecutors must act as ministers for justice, and not go overboard in their pursuit of a prosecution. In their conduct of a trial they [page 16] must be fair and balanced, and not unreasonably denigrate or humiliate anyone charged with a criminal offence in front of a jury. The cases which we review and which have been found to constitute miscarriages of justice span many years, yet have a remarkable ring of familiarity. Investigators and prosecutors have been found at times to pursue untenable theories, and at times to do so when the evidence appears to be against them. Sometimes exculpatory evidence has been withheld, and at others evidence has either been fabricated or seriously misinterpreted, all in the pursuit of injustice. One of the common features of the cases which we examine here is the fact that there is seldom just a single error in a miscarriage of justice case. Many of them involve a whole series of errors, at times committed by a substantial range of witnesses. Looking back on some of the cases discussed here, one might marvel at how they made it through the system in the way they did, and how the errors were not discovered sooner. The intriguing fact is that the errors all seem to favour the prosecution case and seldom, if ever, the accused person. If they were random

errors one might expect to find some distribution between the prosecution and defence case. One can only conclude that when investigators and prosecutors become committed to an untenable view of a case, they sometimes feel bound to pursue it to what is seen to be a face-saving conclusion, and to leave the justice of the matter to another day.

1.3.8 Chapter 9: Expert Witnesses in Criminal Cases In some respects, Chapter 9 is one of the more technical chapters. The rules constituting the proper role of a prosecutor are extremely easy to comprehend, and simply represent fairness and common sense. The rules governing the role of an expert witness require a little background knowledge about the rules of evidence and procedure. We need to know, for example, that opinion evidence is generally inadmissible in criminal proceedings. An exception is made for the ‘expert’ where the expert knowledge is required to assist the jury, or the judge, to understand things which are essential to their task, but which otherwise they could not be expected to understand. There are then two important things which need to be understood: what makes a person an expert, and what they can tell the court to assist in the work of the criminal trial. Again, there is an abundance of codes of conduct and decided cases which will set out the requirements in each case. An expert is expected to be specially qualified in some way, and the knowledge which they impart is expected to be based upon their specialist knowledge, qualifications and experience. There are two bases for determining the relevant rules which are applicable here. There is the uniform evidence law, which applies in some states, and the common law, which applies in others. Fortunately, there have been two major recent cases in which Justice Heydon has gone to considerable lengths to set out the issues under both the common law and the statutory regimes in major judgments in each of those appeals. He is an editor of a major text on the law of [page 17] evidence. In the first case, he was an appeal court judge in New South Wales; in the second, a judge of the High Court.

The essential problem is whether the reliability of expert evidence is a condition of its admissibility, or whether it simply goes to the weight which is to be attributed to it once admitted. Historically, it seems, judges have tended to admit the evidence and then leave it to the jury to determine what to make of it. Of course, jurors are seldom equipped with the necessary analytical skills to enable them to judge whether expert knowledge is sound or not, and they undoubtedly can be influenced by the apparent prestige and status of the person giving the evidence. Add to that the fact that the prosecution can invariably afford to retain more or better qualified experts than the defence, and one can readily see that this is not always a level playing field. All the more important then that the prosecution should ‘play it straight’ and only put forward people who are genuine experts in their field. Regrettably, people who claim to be experts do not always turn out to be so, and their evidence is sometimes found to be less reliable on subsequent scrutiny than it was thought to be initially. Where the issues are complex, the unscrambling of the egg invariably takes considerably longer than did the scrambling of it in the first place. What may be accepted at a criminal trial lasting just a week or two may eventually be rejected after an inquiry lasting months and costing many millions of dollars. It is interesting to note here that judges in Victoria introduced a particularly innovative reform in the form of a practice direction to try to put a stop to what were perceived to be inadequate practices. The strategy could no doubt be adopted elsewhere and for other issues, so that the legal system can retain its integrity, where legislative reform is not yet able to assist. In the scheme of things, there are very few people fortunate enough or tenacious enough to obtain thorough review of expert evidence put forward at their trial. When it does occur, it is astonishing how many emperors subsequently appear to be lacking adequate clothing.

1.3.9 Chapter 10: The South Australian Cases This chapter is necessary to the development of an understanding of the reasons for the introduction of the new right of appeal which we discussed in Chapter 6. The detailed submission which had been provided to the South Australian Parliament in support of the establishment of a CCRC was, in essence, an earlier

draft of this chapter. It set out the rather unusual circumstances which arose from our research into a series of related cases in South Australia. Initially, the substance of the analysis set out here was presented to the public in an ABC Four Corners programme in October 2001. However, instead of that analysis leading to an inquiry into the cases and issues which had been raised, it instead led to a series of denials and obfuscations which have involved a wide range of politicians and media people and which have taken a further 15 years to clarify. [page 18] The substance of the challenge is the extent to which a person who had a key responsibility for giving forensic pathology evidence in South Australia had complied with the standards set out in the previous chapter, in the context of a particular series of cases. This chapter examines those cases and the evidence which had been put forward to support convictions in them. It also looks to a series of ancillary proceedings and the somewhat disturbing findings which were arrived at in those proceedings. A coronial inquiry into a number of baby deaths concluded that the evidence which had been given in those cases was not only unreliable, but also wrong. It concluded that the evidence had impacted adversely on the inquiries into those cases. Later on, the Medical Board of South Australia held an inquiry into the work of the forensic pathologist in relation to a murder trial in which he had given evidence. It absolved him of the charge of unprofessional conduct. Later still, it was revealed that during the inquiry, various members of the board had formed seriously critical views of the work undertaken. The important point for the criminal proceedings which had initiated this inquiry was that the pathologist concerned had made some ‘recantations’ of the evidence which he had previously given at the trial. When the new statutory right of appeal was eventually introduced in South Australia, that criminal conviction was the first to be reviewed by the appeal court. It turned out to be an important case, because it gave the appeal court the opportunity to give an authoritative interpretation of the new appeal provisions, as well as overturning the conviction in that case. At least three further cases discussed in Chapter 10 are being prepared for

review by the appeal court, and no doubt, in due course, there will be others. As it is the South Australian appeal provisions which provided the basis for a statement by the Attorney-General of Tasmania that Tasmania too would be seeking to introduce a new statutory right of appeal, one can expect that this development will in due course influence similar developments in other states also.

1.3.10 Chapter 11: Post-appeal and Post-exoneration Issues At this point in our discussion we move onto the analysis of more systemic and strategic issues. How does the legal system respond once it has been determined that a criminal conviction should be overturned, and what, if anything, does it do to assist with the recovery and rehabilitation of the person who was wrongly convicted? As mentioned earlier, we take the opportunity to discuss the difference between a wrongful conviction and a miscarriage of justice, and explain why we have used the terms as we have done. We also take the opportunity to point out that even where a court determines that a person has neither been wrongly convicted nor suffered a miscarriage of justice, their lives may have been irretrievably and profoundly damaged by their involvement with the criminal justice system. Sometimes the justice system does not even give a person a convenient label to describe the damage which it has inflicted upon them. [page 19] We also take the opportunity to assess the situation from the point of view of the prosecutor and the person who has been exonerated. In what circumstances can a prosecutor appeal against an acquittal, and in what circumstances might it be appropriate for them to retry a person who has had their conviction overturned? If the prosecution seeks to proceed to a retrial, what factors do they need to consider? One of the factors which will require careful consideration is the balance between ensuring that people are held to account for what it is alleged that they have done, and ensuring that proper respect is given to the

double-jeopardy principle. This requires that a person not be put on trial twice for a crime arising from the same set of circumstances. In this context the double-jeopardy principle means that the prosecution is not entitled to proceed to a retrial on a substantially different basis from a first trial. If there has been a fundamental error at trial, the prosecution is not entitled to patch up its case and bring the accused to trial again on a significantly different basis. This explains why an appeal court which has determined that a verdict of a jury was unreasonable will usually acquit the accused, thereby ensuring that there cannot be a retrial. Having said that, when a conviction is overturned the usual expectation is that there will be a new trial. The public is entitled to expect that the question of guilt and innocence will be determined by a jury, and that where there is credible evidence that people have done wrong they will be held to account for it. Whilst proceeding to a retrial, there is always the possibility that the prosecution will apply for a stay of proceedings or enter a nolle prosequi. Whilst these have the effect of halting the proceedings, they still allow for the possibility of continuing with them at a later stage. It is a very unsatisfactory outcome for someone accused of a serious crime. A person accused may apply to the court for a stay of proceedings, or they may wait until the retrial and then ask the court to determine that there is no case to answer. That would mean that they then obtain the advantage of an acquittal. Once the prosecution is resolved in favour of the accused, consideration is invariably given to the prospects of compensation. It has to be said that this often gives rise to a fairly stark contrast between the principles and the practice. On the one hand we have public statements by states that they will act as model litigants and not unfairly take technical points, nor use their deep pockets to unfairly disadvantage a meritorious claimant. On the other hand we have the fact that it remains extremely difficult for a person who has had a conviction overturned to successfully sue the state for compensation. The usual requirement is that the applicant has to claim that the prosecution was actuated by malice. The principles of civil litigation based upon negligence will not suffice. Judges and prosecutors usually have the benefit of an immunity for the work that they do in prosecuting and hearing cases. Witnesses too will have an immunity in respect of the evidence which they give in court. Interesting questions arise as to the extent to which this covers preparatory work which they

[page 20] do prior to giving evidence in court, and the extent to which it might also protect against claims of incompetence or worse. In the United Kingdom, the immunities of legal practitioners and witness immunity have been wound back considerably in recent years. It has been held there that any protection for the giving of false or contrived evidence is not protecting the system of justice, but undermining it. The United Kingdom system has held people to account more robustly for the work that they do in this area. That influence has not been translated into the Australian practice. Having said that, a number of cases are currently proceeding in this area, and may provide the opportunity for further clarification of the law.

1.3.11 Chapter 12: Systemic Responses to Miscarriages of Justice In this final chapter we wish to bring to the reader’s attention some interesting developments in other jurisdictions, which might well influence practice in Australia. The first and perhaps most important development comprises the revelations which have been and are being made in respect of the forensic sciences. The National Academy of Sciences (NAS) in the United States conducted a detailed study of a number of the forensic sciences in 2009, which revealed that many of them do not have an adequate scientific basis. This is said to apply even in respect of fingerprint analysis, which has been supposed to be one of the most established and reliable of the forensic sciences. A 2012 report by the prestigious National Institute of Science and Technology backed up the findings of the NAS report. The research shows that there are elements of subjectivity involved in fingerprint analysis. Where examiners look at a set of prints without realising that they have previously examined them, there is a significant possibility of their arriving at a different result the second time. The same applies to different examiners looking at the same print. In what represents the first official recognition of the issue, the NAS report stated clearly that apart from DNA profiling, the forensic sciences are frequently oversold in legal proceedings. A report from 2015 has stated that in as many as

96 per cent of cases, forensic experts have given what amounts to false evidence in terms of stating the reliability of their results. There is no doubt that this could provide significant ammunition for those wishing to mount fresh appeals on behalf of their convicted clients. We look also to the Goudge Judicial Inquiry in Toronto. This has some resonance with the concerns which were raised in our discussion of the South Australian cases in Chapter 10. The inquiry concerned paediatric forensic pathology cases. All cases involving incorrect or doubtful forensic pathology have the potential for devastating effects in individual cases. In the case of injuries to young children, wrongful diagnoses can lead not only to wrongful imprisonment, but also to long-term separation of children from parents and other siblings. The revelations [page 21] of errors of judgment in the Goudge Inquiry subsequently led to very substantial investment in the improvement of forensic pathology services in Toronto, such that the area now has a world-leading facility. Like the NAS Report, the Goudge Inquiry made some significant recommendations, particularly in relation to the oversight and accountability of the forensic sciences. The NAS Report particularly speaks about the need for proper validation studies in respect of each of the forensic science disciplines, and proper accreditation for those who claim to be experts in respect of each of them. It also speaks at length about the need for a national institute of forensic sciences. This topic was raised in one of the royal commissions in Australia nearly 40 years ago. A common recommendation in Australia and the United States was that such an institute be independent of the police and law enforcement agencies. This has not occurred in Australia; the Australian National Institute of Forensic Sciences is under the control of both state and federal police commissioners. One of the most important considerations in this area of the criminal law would have to be the desirability of establishing a criminal cases review commission based upon the United Kingdom model. The issue has obtained wide support from around Australia, as we explain in Chapter 6. It is in our view

the most rational and cost-effective means to ensure that the quality of justice in Australia meets the high standards to which we aspire.

1.

2.

3. 4. 5.

6. 7.

S Tilmouth, ‘The Wrong Direction: A case study and anatomy of successful Australian criminal appeals’ (‘The Wrong Direction’), previously presented at the Criminal Lawyers Association of the Northern Territory Bali Conference, 24 June 2013. The period of the research for the report ran from 1 June 2005 to 31 December 2012. Available at (accessed 26 July 2015). Tilmouth is a judge of the District Court of South Australia. He is the co-author with J Glissan of Australian Criminal Trial Directions, LexisNexis Butterworths, Sydney, first published 1990 as The Right Direction. Tilmouth, ‘The Wrong Direction’, p 5 citing Doney v R (1990) 171 CLR 207 at 213–14; 96 ALR 539; [1990] HCA 51, where, it is explained, the judge only has power to stop a trial where there is ‘no case to answer’ or where a Prasad direction (an invitation by the judge to the jury to consider a ‘not guilty’ verdict at the close of the Crown case) would be appropriate. As we will see later in Chapter 11, a Judicial Commission study in New South Wales in 2011 stated that where a conviction is overturned on this basis, the usual result is to enter a verdict of acquittal. Tilmouth, ‘The Wrong Direction’, p 14, citing R v Heyde (1990) 20 NSWLR 234 at 236. Tilmouth, ‘The Wrong Direction’, p 17. Tilmouth, ‘The Wrong Direction’, p 18, referring to the judgment of Heydon J in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305. This issue is discussed in detail in Chapter 9, including some more recent cases. Tilmouth, ‘The Wrong Direction’, p 44. In fact, as we point out in Chapter 5, the proviso was removed in Victoria in 2009. See detailed discussion of this topic at para [3.3.1] below.

[page 23]

Chapter 2 Institution of Law, Rule of Law and Human Rights 2.1 Introduction One of the pervasive problems in discussions of law is to determine what it is that we are talking about. Judges often speak about the ‘law’ as if it were a fixed and defined external reality which they identify (find) and then apply to resolve the cases which come before them. To some extent, that is true. Yet the very nature of the common law system is that the judges also have the ability to change and develop the law in the process of determining those cases. There has been much debate over the years on the extent to which it is legitimate for judges to do so. The underlying problem is that if judges can change the law in the course of their work, then how could it possibly make sense to say that they are ‘bound’ by it at the same time? One response might be to adopt a position often attributed to the legal realists, and say that the law is no more nor less than what the judges say it is. On that view, the last pronouncement is presumably the most authoritative. One problem with such a view is that if one subscribed to it, it would hardly be possible to say that a judicial determination was ‘wrong’. There would be no independent test for the correctness of what the law is, apart from what judges have to say about it. We are interested in the topic of ‘miscarriages of justice’. The focus for our discussion in this book is upon the criminal appeal rights and the legal cases in the area of the criminal law which have ‘miscarried’ in some way. The use of that term implies that there is in fact some independent method for assessing the correctness of legal procedures and judicial determinations. Broadly speaking,

the values which are embodied in our legal system are best described as the ‘rule of law’ and ‘human rights’ standards. It is helpful to consider how those values may be said to have arisen; to locate them within a theoretical framework. One such framework is a view of law as one particular type of social institution. We therefore commence our analysis by looking to the work of John Searle, a philosopher, who sets out a general theory of social institutions, of which the institution of law is but one example. We then look to the work of Neil MacCormick, who, as a legal theorist, developed an institutional theory of law. In doing so, he explains why his theory requires an understanding of the values which are implicit [page 24] in the legal enterprise. Collectively, those values find expression as ‘the rule of law’ principles. We then have to ensure that our discussion is not just some abstract academic debate about theory, without practical relevance. We do so by considering the extent to which the theories we discuss are recognised by key legal officials within the system of law. To do so, we look to the views expressed by some of the most senior judges in the United Kingdom and Australia.

2.2 John Searle’s theory of social institutions As a philosopher of language, John Searle is interested in the way in which we as human beings engage in what he calls ‘speech acts’, which create important aspects of our social reality.1 In some areas of our lives our ‘ideas’ seem to shape our reality to a greater extent than others. We might accept that a ‘mountain’ is just there. It doesn’t matter whether we think about it, or whether we don’t — it is still there. On the other hand, could the same be true of ‘money’? The paper and metal of which it is made is a physical entity which exists, just like the mountain. But if people in a community changed their ideas — or ceased to exist — would that paper and metal still be money? No, because in order for it to be

‘money’ there must be some ‘intentionality’ on the part of the members of the community that the paper and metal be used as part of some process of exchange. When we discover an old papyrus with markings on it, we have to determine if those markings are just decorative, or part of a language. Is it wallpaper, or a ‘constitution’ of that earlier society? Searle wants us to appreciate that our ideas not only reflect reality, but actually constitute it. He says there is an important difference between: ‘mental states’, which involve a form of ‘intentionality’ which is an integral part of human consciousness; and ‘social reality’, which refers to things such as ‘money’, ‘marriage’, ‘government’ and ‘law’; and ‘physical reality’, which is the external ‘stuff’ of which the world is made and includes mountains and molehills. Each of these elements, Searle says, has a complex relationship with the others in constituting our knowledge of the social world. If we accept that aspects of social reality are in fact constructed by us, or exist by agreement between us (as is the case with ‘money’ or ‘marriage’), then how can they have an element of ‘objectivity’ to them? [page 25] According to Searle, the underlying problem is that the theorists of the 19th and 20th centuries (such as Max Weber and Émile Durkheim) lacked a theory of ‘collective intentionality’ — what we call ‘rule-governed’ behaviour. ‘Law’ can be seen as an attempt to bring about conforming (rule-governed) behaviour through the social institutions which make up a legal system. Whole societies can be discussed in terms of those which have ‘the rule of law’ and those which do not. Implicit in this way of thinking is the need to explain what is meant by a ‘rule’ of the system, or, indeed, by a ‘system’. We need to see how the system of law might then relate to other social systems (or institutions) such as business, government and family life. There is nothing strange or startling in such reflections. John Austin said, at the beginning of the 19th century, that he would commence the study of law by

looking at ‘the logic and history of the human mind’;2 what we would call the cognitive sciences. First of all, Searle wants us to understand the difference between ‘institutional facts’ and ‘brute facts’.

2.2.1 Institutional and brute facts Brute facts exist independently of any human volition or opinions.3 The rising and setting of the sun, the laws of physics, and the existence of mountains and seas are unrelated to what anyone thinks about them. On the other hand, says Searle, ‘institutional facts’ exist only as a result of human agreement. If we think of what constitutes a ‘restaurant’ or a ‘chair’ or a ‘table’ we can see that they all have physical aspects to them. Yet, at the same time, there is also something implicit in each of these which is not part of their physical characteristics.4 The non-physical aspects of a restaurant, for example, might be illustrated by questions such as ‘who licenses the restaurant?’ or ‘who owns the beer?’ or ‘who employs the waiter?’5 Referring to objects as ‘chairs’ and ‘tables’ implies some purpose or use we have for them.6 We now need to look at the distinction between objectivity and subjectivity and the way in which it is incorporated it into the development of our ideas. [page 26]

2.2.2 The objective/subjective distinction Searle says we need to distinguish ‘epistemology’ from ‘ontology’.7 Ontology is the study of something ‘as it is’. ‘Epistemology’ is the study of how we ‘know’ what it is. The epistemology gives us access to the ontology. This is why some people say that all knowledge is subjective: we can only know the external world through the ideas we form about it. The process of forming those ideas will depend in part upon our values or attitudes. It will also depend upon objective elements which are independent of such judgments. That Rembrandt lived in 1632 is not a good or bad thing; it is just the way it was. As Searle puts it, ontologically the predicates of entities ascribe modes of existence which are independent of any perceiver or mental state.

So, we can distinguish between features which are intrinsic to the nature of a particular object and those which are relative to the intentionality of observers. The fact that a particular object is made of wood or metal is intrinsic to it. That it is a screwdriver or a chair is ‘user-relative’. Searle now makes a claim which will be important to our understanding of the objectivity of law. He says that ‘ontological subjectivity’ does not prevent claims from being ‘epistemically objective’. He takes as an example the statement that ‘earthquakes are bad for property values’. Whilst ‘property values’ are subjective in the sense that they are dependent on people attributing value to things, there is also an objective element to that subjectivity; bankers and insurance companies can attest to what happens to property values after earthquakes have hit an area. Searle uses the term ‘agentive functions’ to make explicit the purposive aspects of our knowledge, whether it be knowledge of a chair or a screwdriver. He uses ‘non-agentive functions’ to refer to the other part of the phenomena in question. He says that some agentive functions ‘stand for’ or ‘represent’ other things. For example, the marks on a page ‘stand for’ something in the world. Language, he says, is the most well-understood agentive function.

2.2.3 Collective intentionality Searle now adds that besides brute facts and institutional facts, there are ‘regulative’ and ‘constitutive’ rules. Activities governed by ‘constitutive’ rules cannot exist without the rules first being in place. It is hard to think of the game of chess without the rules required to create the activity.8 If the idea of ‘function’ helps us to understand or is part of the ‘collective intentionality’, then constitutive and regulative rules are the building blocks of our ‘institutional’ reality. When we speak of constitutional law, we are speaking of the way in which a legal system is created. When we speak of administrative law, we are speaking of the way in which the operational activities of the state are regulated. [page 27]

2.2.4 Creating institutional facts Searle acknowledges that concepts identifying social facts have a sense of self-

referentiality about them. In order for a piece of paper to be money, people have to regard it as money.9 The general concept is distinguished from some of the individual instances of it — about which we may be mistaken. This idea is important when we speak about the institution of law. For a rule to be law, certain people, particularly the judges, must regard it as law. However, this does not prevent us from identifying some instances where judges may regard something as law, and we say they are mistaken. This is central to the task which lies ahead of us in this book. However, before we get to that, we need to bring in the idea of ‘performative utterances’. These are a special form of declaration which has the effect of making what is declared so. The statements ‘we are at war’ or ‘the meeting is adjourned’, for example, when uttered in appropriate circumstances by appropriate people, have the effect of commencing war or ending the meeting. From the components of the discussion so far, we can now see that we can create through a constitutive rule a new and collectively recognised ‘status’ to which a ‘function’ is attached. Where the imposition of the status function becomes general policy, the formula acquires a normative (‘ought’) status. This will be important to our discussion of the role of prosecutors and experts in later chapters. Their obligation to obey the rules in respect of their core function is part of their ‘status function’. We may say that the rules of the criminal law are constitutive rules in that they determine what it is to be a criminal. The purpose of the criminal law is to specifically reassign a person’s status from ordinary citizen (with all the rights which that entails) to ‘criminal’, a status which may involve having fewer rights. Performative utterances may involve the creation of new institutional facts or the changing of a person’s status by a declaration which is both authoritative and appropriate. When a jury says that a person is ‘guilty’ it has quite a different effect to the same thing being said by a friend. In defining or identifying social objects (rules of law, for example), we really mean to refer to them as indicators of underlying patterns of activities.10 The status function imposed on an object (for example, a piece of paper, which might be an Act of Parliament, a death warrant or a fifty-dollar note) both makes and reaffirms it as an institutional object. An important point [page 28]

which Searle makes and which finds expression in MacCormick’s work is that each use of the institution is a renewal or reaffirmation of it. It is a renewed manifestation of the collective intentionality, which it symbolises. So each time a judge states what the law is, its status is being reaffirmed and renewed.

2.2.5 Language and social reality Searle says that it is our language which is essentially constitutive of our shared institutional reality.11 Institutional facts require the use of symbols which represent something beyond themselves, and are publicly accessible. They require representation which is expressive of some mental element. To return to the language used earlier by Searle, all institutional facts are ‘ontologically subjective’ and ‘epistemically objective’. They arise from a shared subjectivity, but exist as part of an objective reality. As abstract thoughts they can only find expression through words and symbols. This is true of ‘money’, ‘property’ and all legal relationships. We are now in the realm of shared ideas. The status of institutional facts has no pre-linguistic correlative. The deontic phenomena of rights and obligations are not reducible to observational forms.12 Searle’s example is that a dog may chase dollar bills and get food when it returns them to its owner, but the dog cannot conceptualise ‘the right to buy things’ which ‘money’ represents. Language now constitutes and creates or brings into being the entity, as well as being needed to communicate about it. In this way such ‘facts’, although socially constructed, can have an existence independently of the individual participants. The legal rule comes into existence through the subjective expressions of judges, but can then be spoken of independently of any particular judge or judges. A judge or prosecutor may be bound by rules which are necessarily entailed by their status function.

2.2.6 The general theory of institutional facts To complete this stage of his discussion, which has particular interest for us as lawyers, Searle refers to ‘iterated structures’.13 He presents the idea that the abstract entities (institutional facts) we create can be the building blocks of other more complex entities at higher levels. We understand the idea of a (legally) nonbinding promise. We also understand that a promise can be binding if it is part of a contract. Contracts in turn can be used to form companies and tax

avoidance schemes and transfer assets overseas, and this in turn requires an understanding of a legal system or systems. In this way, we have a series of interlocking structures iterated through time. More complex structures can exist without the physical proximity or control of those who have put them in place. Saying words in front of a presiding official [page 29] might constitute a marriage. However, what constitutes ‘a presiding official’ is the result of a previous status-imposing function. Complex systems of ownership require complex marks of that ownership, which in turn require systems for the transfer and acquisition of those marks. All of these status-transforming functions are indicated by speech acts and their recording. Clearly, the whole complex system works by some form of collective acceptance, but as the legal theorists acknowledge, ‘within the coercive framework of the law’. To say that institutional structures ultimately depend upon the military power of the state might well be true. However, the power behind the state has to struggle for ‘legitimacy’ if it is to operate effectively. The struggle then becomes one to control ‘meaning’ and decide which view of the institutional facts is to prevail. Having identified how social institutions arise, we can now look to one of the most contemporary and sophisticated explanations concerning the institutional status of law; one which has particular resonance for those interested in the idea of miscarriages of justice and the rule of law.

2.3

Neil MacCormick’s institutional theory and the rule of law

The ‘rule of law’ is at the very heart of the philosophical problem we have been addressing. Laws, like ideas, do not have any necessary phenomenal aspect to their existence. We used to think they were somehow contained within bound copies of the legislation and law reports, and we now have online databases

which are said to contain them. However, when we look to those books or databases, we still have to construct ‘the rules’ they are said to contain. Neil MacCormick is a leading exponent of a theory which sees law as an institutional normative order.14 His explanation is consistent with Searle’s more general theory of social institutions.15 As MacCormick says, we are dealing here with an ‘ideal construct’ or thought object.16 [page 30]

2.3.1 Inter-subjective unity There are certain practical requirements of the inter-subjective unity required for law. Some can be derived from the requirements of practical reasoning. This involves the concepts of coherence, consistency and compliance, which are the basic methodological requirements of good reasoning. Where reasoning is found to be incoherent, it fails to fit together and cannot provide a rational guide to conduct. Where it is inconsistent, it has internal contradictions, and again, cannot provide a clear guide to conduct. A lack of compliance indicates either a lack of coherence or a lack of consistency between the practical action and the norms which are said to regulate or constitute the activity in question. The other requirement of inter-subjective unity is an overarching concept or set of principles which provides coherence and legitimacy to the legal system itself. This is most evident in discussion of the rule of law. Forms of good legal reasoning are arguments about the fundamental values we impute to the legal order. The highest expression of those values is given in elucidation of what is implicit in ‘the rule of law’ principles. This is the conceptual bridge which links the philosophical underpinnings of Searle with the discussion of the rule of law, which then informs the discussion of human rights in the concluding section of this chapter. We first look to MacCormick’s conception of the rule of law, because it is MacCormick’s explanation of it which gives it a proper philosophical grounding in the legal context. We then look to discussion of it by British and Australian lawyers who have explained its importance and contemporary significance. It will prove to be an essential factor for our subsequent discussion of criminal appeals and miscarriages of justice.

2.3.2 Legal reasoning and the institutional theory of law As a species of practical reasoning, MacCormick’s theory of law recognises that legal reasoning may at best be ‘persuasive’ — but it cannot attain the level of ‘demonstrative’ knowledge one might attain with certain types of logic or mathematics. It entails elements of subjectivity and the identification of appropriate values or purposes, which will always be contestable. The values which MacCormick recognises as being implicit in ‘the rule of law’ are of central importance:17 To have properly published and prospective laws, equality of citizens before them, and limitation of official power with respect to them, are foundations for democratic liberty and essentials for a stable economy.

[page 31] Otherwise, anything would go. It is important to note that the ‘limitation of official power’ is a key concept in MacCormick’s articulation of the rule of law principles, and it is one which finds expression in the work of many others who write on this topic. It will be a key component of our critique in subsequent chapters. The institutional theory of law involves issues such as ‘compliance’, ‘adjudication’ and ‘enforcement’ by officials, and criteria of ‘recognition’ and ‘change’, each of which have their own norms.18 There will be a separation of powers between the various officials with different status functions. MacCormick says the institutional order is best described as a ‘shared framework’ of understanding the interpretation of which engages the interests and values of the individuals and groups who have to engage in the activity of argumentation and adjudication. The study of what makes good and bad arguments is called ‘rhetoric’, and it is this which identifies the specific social and moral values which ensure peace, predictability and fairness.19 MacCormick commences his discussion by saying that ‘[t]he Rule of Law is a signal virtue of civilised societies’.20 It ensures the independence and dignity of each citizen, as well as protection from arbitrary intervention from others. It engages a ‘practical skill’ rather than scientific skills, and it will always leave

room for arguments about the applicable law or facts. Despite that, it provides reasonable certainty about the applicable standards for conduct. It gives security to people’s expectations by allowing them to challenge official action by ‘demanding a clear legal warrant for official action’ — or its nullification by an independent judiciary.21 The idea of a ‘clear legal warrant’ for official action is tied in to the point which MacCormick makes about the fact that legal argument ‘must conform to conditions of rationality and reasonableness’. It implies that assertions will be supported by reasons.22 An important part of our work in subsequent chapters will be to examine the reasons or justifications which judges give in support of their rulings. We will find that in some instances they are not always persuasive. MacCormick says there is an important distinction to be made between ‘reasonable persuasion’ on the one hand and ‘intellectual coercion’ and ‘deceit’ on the other. The reasoning can work from or to commonplace presumptions or ‘pre-understandings’, which are the taken-for-granted assumptions we all work with. MacCormick notes that ‘[t]he issue for a theory of reasoning-asjustification is not [page 32] what argument actually persuades a particular judge or jury, but what argument ought to convince any rational decision maker’.23 For MacCormick, there are some procedural aspects of legal reasoning which may narrow down appeals to intuition. In legal argument, no one starts with a blank sheet to work out a reasonable conclusion a priori. An offered solution must ground itself in some proposition that can be presented with at least some credibility as a proposition of law, and such a proposition must be shown to cohere in some way with other propositions that we take to state established laws. The material in question comprises constitutions, treaties, statutes and precedents. MacCormick recognises that states are territorially organised coercive associations of human beings which deploy organised coercive power:24 ‘In this context, the demand for rational justifiability of governmental action is an urgent one if government is not to be the mere mask of tyranny.’25 It is generally understood as legitimate to demand that any governmental act be warranted by

explicit provisions that must obtain to mandate, to permit, to authorise decisions that affect other citizens. Importantly, MacCormick notes that any discretionary element can exist only within quite clearly stated limits. Such provisions, derived from legislation and precedents, are typically called ‘rules’ to distinguish them from other norms such as conventions, standards, values or principles:26 A legal rule is a normative provision stated in or constructed from a recognized legal source that has the form of linking a determinate normative consequence to determinate operative facts.

Some rules may prescribe the conditions in which decisions are made, and are included as part of the idea of ‘normative consequences’:27 At the heart of the liberal ideal of free government, and at the heart of the distinction between free and despotic governments, is the idea that when governments act towards its citizens, their action must be warrantable under a rule that exhibits the structural characteristics we have noted.

The rule of law requires an averment of relevant facts supported by evidence in open proceedings in which the party charged may contest each item of evidence and the relevancy of the accusation or claim: ‘A vital part of the guarantee of liberty in the governing conception of the Rule of Law is that the opportunity to mount such a challenge on fair terms and with adequate legal assistance be afforded [page 33] to every person.’28 The rule of law insists on the right of any accused person to challenge the case against them: ‘There is no security against arbitrary government unless such challenges are freely permitted’ and adjudicated upon by those not involved in prosecutions.29 It will become clear in the following chapters that the restrictions on appeal rights in Australia, and the inability to obtain reasons for some decisions or to challenge decisions under the petition procedure, do not comply with these rule of law requirements. The rule of law requirements also have obvious significance for the rules relating to the disclosure obligations for people such as police, prosecutors and expert witnesses.

2.3.3 The interpretive nature of law

MacCormick acknowledges ‘the open texture of law’ and the uncertainties which arise from the argumentative possibilities regarding applicable principles and facts.30 However, he does not see this as some ‘pathological excrescence on a system that would otherwise run smoothly’. It is ‘an integral element in a legal order working according to the ideal of the rule of law’. Whatever care one takes in formulating the source materials, they are always defeasible.31 MacCormick aligns himself with Ronald Dworkin when he states that ‘legality’ (the rule of law) is the political value which lies at the heart of any interpretive attempt to characterise law. The ‘rational reconstruction’ of legal arguments which is involved in issuing written judgments deals with the issue of interpretation and its attempts to keep faith with its past. In identifying the key components of his thinking, MacCormick said that he remained attached to marrying Adam Smith’s account of moral sentiments with a Kantian universalistic moral philosophy, to allow for defeasibility and in the process to align himself closer to Ronald Dworkin. Here we can see the very source of MacCormick’s attachment to the nature of the institution of law as an inherently moral but uncertain enterprise. As the Chief Justice of the Australian High Court (French CJ) has acknowledged, there is room in judging for choices to be made which are informed by what might popularly be called moral values.32 [page 34] For MacCormick, the rule of law is not an ideal to be taken in isolation; it has to be understood as a dynamic aspect of a functioning legal system. Whilst a logically demonstrative argument in the form of the syllogism has a modest role to play, where that form of rationality stops working, we then look to persuasive modes of argumentation (rhetoric). For MacCormick, we have to understand the interaction of both in order to to reconcile rhetoric (persuasion) with the rule of law.

2.3.4 On the legal syllogism MacCormick says that in order to develop a legal argument one has to identify the relevant legal provision which applies, together with relevant issues of fact.33

Pleadings may amount to an attempt to construct a legal syllogism. Statutes or the ratio of a precedent case can be seen to provide major premises, or a universal rule which applies. The factual averments amount to a set of minor premises, which are instantiations which fall within the rule. The claim is the conclusion of the syllogism. A syllogism may well be valid, but that tells us nothing about the truth or otherwise of the premises which it contains. An example is the following valid syllogism: Major premise: All lecturers are wealthy Minor premise: Arthur Smith is a lecturer Conclusion: Arthur Smith is wealthy.

The conclusion brings together the predicate of the major premise with the subject of the minor premise; whilst it may be ‘valid’, it may also be untrue. The syllogism has to sit within the context of an interpretive framework. Each term in the syllogism requires possibly complex issues of interpretation in the context of the point of law. The pleading and proving of a case involves the construction of narratives, which in turn involves problems of ‘classification’, ‘characterisation’ or ‘evaluation’. The syllogism can provide a context within which the other argumentative strategies make sense. The common law depends upon an acceptance that precedent cases implicitly contain rules for conduct and textbooks and commentaries state propositions of law by citing cases as ‘authorities’ for them. An asserted proposition’s inconsistency with pre-established law may be fatal, whereas ‘coherence of the proposition with the pre-existing law will tell in its favour’.34 At the same time, we always have to be mindful that legal change can take place in and through the cases, and may well impact upon the individual case. [page 35] For MacCormick, understanding how the parts and the whole of the legal system are related represents a ‘hermeneutic’ (interpretive) circle which is interdependent.

2.3.5 Decision-making and justification in law MacCormick makes the point that ‘respect for the Rule of Law requires respect for the rules of law’.35 However, he also makes the important distinction that decisions are acts of will, not just inferences or acts of cognition. They are ‘made’, rather like ‘speech acts’ in Searle’s discussion, and not simply deduced. However, MacCormick says, the justification of a decision may well be derived from appropriate premises. To say that a court ought to do something is not a decision but a conclusion derived from relevant premises. If the court were to do otherwise, ‘we would surely demand to know … with what legal justification it could possibly do so’.36 In a sense, this is the very question which is the concern of the following chapters of this book. The rule of law not only requires that normative syllogisms are possible, but also requires an interpretative practice exhibiting coherence and consistency across decision-makers and time. MacCormick’s Institutional Theory of Law says that the logic of justification involves assertions about what one understands to be the content of a legal norm or rule. As statements of institutional facts, they do have truth value (‘epistemic objectivity’ in Searle’s terms), but this can only be understood in the context of an interpretive community which involves some account of custom or convention.37 The judges’ justifications of the decisions they make are effective as justifications only insofar as they offer genuine attempts to interpret the law. Plain mistakes (like some of those we identify in subsequent chapters) will remain plain mistakes, whether committed by judges or scholars. Judges and other legal officials must show that the decisions they give fulfil the judicial obligation to respect the law. The fact-finding subsumed in that process is not arbitrary, but has itself to be supported by adequate justifying reasons. MacCormick acknowledges that every statement of law will depend to some extent upon an interpretative argument which will presuppose value judgments. However, those values are not (or should not be) idiosyncratic to the judge or individual advocate, but should be derived from the system itself, which will contain truth-determining processes.38 Chief Justice French endorsed a similar view when he emphasised the requirement for justification based upon reasoned explanation as an integral part of the legal process. Whilst he recognised that intuitive judgments based upon expertise and experience can be an important part of professional (medical)

[page 36] practice, he said the situation changes when it becomes part of the legal process.39 Here, ambiguous circumstances and speculative conjectures are not sufficient:40 However valuable intuitive judgment founded upon experience may be in diagnosis and treatment, it requires the justification of reasoned explanation when its conclusions are controverted. Reasoned explanation requires care and forethought — qualities the presence of which is not always transparently visible in expert evidence.41

Nevertheless the courts must recognise that even the justification of reasoned explanation of medical events may not, in many cases, be able to travel beyond probabilistic statements of what has caused those events.42

2.3.6 The role of universals For MacCormick, a key feature of the rule of law is the emphasis it brings to universalist and egalitarian factors. Important to the justificatory relationship between a reason and a decision is the universalisability of the grounds for a decision. However, precedents can never be more than analogies for decisions, because of the individuality of time, place and circumstance. All instances of rule application are also endorsements of the correctness of the rule application process, as reasons for decisions are ‘rightness’ and ‘goal’-directed reasons.43 This is not to say that there may not be countervailing tensions in the process. Intuition, moral sentiment and empathy may all be engaged. However, for MacCormick, the requirement for the giving of reasons brings with it the universalisable and system-building capacity of legal reasoning. Again, this will become an important part of our critique in subsequent chapters. However, the giving of reasons doesn’t require an exhaustive restatement of all possible reasons on every occasion.44 We learn to formulate rules, or principles or maxims, to assist us as ‘handy abridgments’ of the more complex reasoning they represent.45 However, in order for the rules to make sense, they have to be capable of forming a coherent and consistent part of a general theory.46 The public process of the law requires judges to state publicly what they are doing and why it is right to

[page 37] decide as they are deciding. If justifying a decision requires universalisation, then that universal also requires its own justification. For MacCormick, this requires us to understand the idea of ‘justification by consequences’.

2.3.7 Justification by consequences MacCormick claims that the quality of an act cannot be measured without taking into account the consequences.47 Whilst it is clearly a difficult task to work out what consequences might eventuate, consequentialist reasoning focuses not so much on the probability of behavioural changes, but on the normative status of possible conduct. This leads us to an understanding of the values implicit in law and what they are to protect. The most fundamental legal precepts, says MacCormick, are to live honestly, harm nobody and treat all persons with respect — the most basic values of civil law, criminal law and human rights law. He points out that ‘Ronald Dworkin contends that the most basic legal right of human beings is to be treated with equal concern and respect by the agencies of the state’.48 Dworkin made an important distinction between the ‘policies’ and ‘principles’ in the development of the law. The ‘policy’ aspect refers to the collective good and the ‘principle’ aspect to the issues of rights. For MacCormick, the underlying values inherent in the rule of law must be seen as a standing policy; they are always justifiable in terms of their consequences. Judges pursue them under the constraint which universalisability entails, and recognise that they must always be principled.

2.3.8 The role of interpretation It is clear that every act of applying the law requires some act of interpretation.49 In some cases the emphasis may be placed on the meaning of an authoritative text, and in others on the way in which the situation is characterised. The arguments can range from the linguistic to the systemic or evaluative issues. MacCormick’s typology for classifying some of the systemic elements in interpretation include: 1.

contextual harmonisation — the whole statute, related statutes and earlier statutes;

2. 3. 4. 5. 6.

the argument from precedent; the argument from analogy; conceptual consistency within a particular area of law, or across the law as a whole; general principles of law and conformity with the instant case; and the argument from history. [page 38]

We use many of these strategies in our assessment of the Australian appeal rights, including related statutes, conceptual consistency and the argument from history. MacCormick says that the ‘whole systemic context’ emphasises the importance of ‘overall coherence’, which is a significant factor in our discussion of appeal rights in this book. The law cannot become a wilderness of single instances, but has to be developed into a properly ordered arrangement of intellectually and morally respectable differentiations between cases. Rationality is seen as a key factor in judicial interpretation, and is based upon a concept of justice. Clearly there are different types of arguments, which can pull in different directions. Where the issue of precedent is emphasised, the systemic aspects of interpretation are most prominent. Other issues might appeal more to conceptual logic, and promote aspects of linguistic coherence — as we do to some extent in subsequent chapters. MacCormick sees these different forms of interpretation as both ‘genuine and generally operative legal values connected with the idea of the Rule of Law’.50 They have a common concern: the need to achieve a universal formulation which applies to a whole class, which is the basis of the concept of legality and the rule of law.51 The philosophical idea of developing general rules applying to classes of persons and conduct is to mitigate against the possibility of personal bias.52

2.3.9 General rules and the normative force of precedents The principle of precedential reasoning is to ensure that like cases are treated

alike:53 … the idea of an impartial legal system that does the same justice to everyone, regardless of who are the parties to a case and who is judging it. Faithfulness to the Rule of Law calls for avoiding any frivolous variation in the pattern of decision-making from one judge or court to another.

For MacCormick, it is the justificatory element which makes the precedents normative and guides to future conduct. As precedents they may be more or less persuasive rather than absolutely binding. Whilst there may be a strong presumption against departing from previous rulings, a departure may be necessary where a new ruling has a better coherence with the underlying principles or policies of the [page 39] law. The main point MacCormick makes is that the legal institution will restrict the range of legally justifiable outcomes that can be advanced. In this book, we identify cases where the outcomes are not consistent with the rules as declared, and where they cannot be justified as a morally defensible departures from the existing norms. In other words, the following chapters are intended to validate the MacCormick thesis by identifying cases which are not justifiable departures from existing norms. As MacCormick points out, ‘[t]he perennial risk arising from positive legal institutions is that they will generate purported justifications of actually unjustifiable actions.’ This is the focal point for this book. MacCormick adds that human rights instruments can provide some protection; this is also an important component of the issues we raise in this book. Reasoned deliberation has an important procedural character to it. MacCormick says that even where there is no single reasonable answer, we may still be able to identify unreasonable ones. In the earlier part of this book, we find elements of incoherence and inconsistency in the explanations and justifications given by judges in dealing with appeal rights. On the one hand they say that people convicted of serious crimes only need one right of appeal, because thereafter they can petition an Attorney-General to ensure that meritorious cases can get back to the courts. On the other hand, when dealing with petitions, they say that people applying to an Attorney-General have no legal rights to even a fair hearing of their petition application. The Attorneys-General of two states in

Australia have now recognised that this is an unreasonable situation, and have taken steps to correct it. In the latter part of the book we refer to cases in which senior judges have identified non-compliance with the standards which define the status function of legal officials and others and which the various participants have signed up to as appropriate to govern their conduct. These include prosecutors and expert witnesses, and sometimes defence lawyers and trial judges. As MacCormick points out, each area of law requires a balancing of competing interests, invariably both public and private. In the final chapters of this book we point to factors which require consideration of short-term and long-term interests and possibly individual and systemic interests. Why are there sometimes long delays in responding to claims relating to serious miscarriages of justice? Why do prosecutors or expert witnesses sometimes withhold important information which would otherwise lead to the exposure of a serious wrongful conviction? Why do expert witnesses sometimes misinform courts, or overstate their capabilities or their confidence in the accuracy of their results? Clearly there are functional and dysfunctional ways in which the competing interests can be balanced. MacCormick points to the fact that social values and expectations change over time. In ascribing weights to the factors involved in deliberations, one should be astute to identify the basis upon which those ascriptions are made. In our discussion we point to Britain, where nearly 400 miscarriage of justice cases have been identified over the last 20 years or so, and compare it with Australia, where well under 10 per cent of that number have been identified. British prosecutors [page 40] regularly concede the point where appealable error has occurred, and Australian prosecutors rarely do so. If social expectations in each of the two jurisdictions are substantially different because of their different experiences, then we might be able to change those expectations with the provision of new information — which is also one of the goals of this book. To some extent that process is already under way. Attorneys-General in two states have recognised the inadequacy of existing procedures to deal with alleged wrongful convictions, and have changed or are changing them, for the first time in 100 years.

2.3.10 Coherence and consistency MacCormick says that coherence may have both normative and narrative aspects. Incoherence means a failure to make sense, and it may do so without contradiction. Consistency refers to non-contradiction. He illustrates his point by saying that there are some circumstances in which perfect consistency might give rise to a suspicion that a concocted or untruthful story is being told.54 He says that the coherence of norms involves the extent to which norms have a rational relationship to a set of values. In this book we look at the legal norms governing appeals and ask whether they coherently and consistently promote the interests of a fair trial and the right to an independent review when things go wrong. MacCormick says that ‘[a] legislature that respects the Rule of Law cannot be one that chooses arbitrarily to exercise legislative power without regard to the way in which new laws hang together with the legal system as a whole’.55 The rule of law requires balance from the courts, the legislature and the executive in promoting the public good, and the detailed rules ought to be interpretable as serving a set of mutually compatible values. This is important to our analysis of the new statutory right to a second or further appeal. The argument is that it inappropriately excludes some meritorious cases from applying for a further appeal, and at the same time requires others to prove things which may not be essential to the successful outcome of the appeal. To the extent that it is irrational, we should expect further changes to be made.

2.3.11 Judging mistakenly MacCormick identifies an important tension between the arguable character of law and the ideal of legal certainty implicit in the rule of law. It is essential to clarify that the position taken in our work on miscarriages of justice rests upon the view that there are genuine constraints upon legal argument. We accept that the law is non-arbitrary and based upon grounds of a distinctively legal form. [page 41] The resolution is an act of practical reason, and accounting for it requires a

statement of reasons which have certain characteristics. We are of the view that working with the intellectual tools MacCormick provides, we can use his theory diagnostically to identify procedural and substantive issues which can help with systemic reform and the identification and resolution of miscarriage of justice cases. We accept with MacCormick that the concepts of reasonableness, coherence, consistency and compliance impose significant constraints upon what is acceptable in terms of principled arguments and arguments from analogy. However, it is a demand of justice that the institutions of the state protect citizens from needless uncertainty and undue delays concerning their rights. Any discourse about law and order and the rule of law is crucially connected to the idea that those involved in the conduct of legal proceedings can and do make mistakes or otherwise act inappropriately. MacCormick says it is important to look beyond what judges say they do to what they actually do — and this is an important theme of our book. MacCormick concludes that the rule of law has value in promoting predictability and certainty. He recognises, and some of the cases in this book show, that ‘[o]bfuscating tactics beyond these constraints can be and are from time to time utilized by lawyers. That is not within the legitimate rhetoric of their profession but is a betrayal of it’.56 He then adds that ‘[e]rosion of the Rule of Law would not be a good way of warding off threats to civilization, but a way of yielding to them’. In MacCormick’s view, the ‘critical reflective attitude’ in the context of incoherence, inconsistency or non-compliance is essential to the considered development of the law. Where we can identify elements of incoherence or inconsistency within the applicable norms, or elements of non-compliance by legal officials with those norms, according to MacCormick, we should expect a desire to reflect upon the underlying values which they seek to protect and to act so as to resolve those dysfunctional elements. To some extent this is already evident; for example, in the move in two states to introduce new legislation to create new appeal rights in response to the claims which have been made. Whilst far from perfect, as we explain in later chapters, the significance of these developments should not be underestimated. Having set out the theoretical basis for our subsequent discussion in this book, we now need to extend the discussion of the practical implications of the rule of law. We do this in two stages: first by looking to the discussion of the issue by

Lord Bingham, a leading United Kingdom judge, who has in recent years had an important influence on developing a new appreciation of the importance of the rule of law, and then by considering the rule of law as an integral part of the Australian legal system. [page 42]

2.4 Lord Bingham and the rule of law The Guardian described Lord Bingham as ‘the most eminent of our judges’. He held office successively as Master of the Rolls (head of the Court of Appeal), Lord Chief Justice of England and Wales and Senior Law Lord (of the Supreme Court) of the United Kingdom — he is the only person ever to have held all three offices.57 The Bingham Centre for the Rule of Law (part of the British Institute of International and Comparative Law) was established in 2010. Lord Bingham’s book The Rule of Law was a development of his David Williams Lecture from 2006.58 Bingham approached the rule of law from the perspective of history and legal principles, rather than through the philosophical analysis found in MacCormick’s work. He recognised, as MacCormick did, a clear tension between the rule of law, human rights and civil liberties on the one hand and the threat of terrorism on the other. He took the view (in common with MacCormick and many Australian judges) that the rule of law was the key value or principle underlying the constitution. Bingham’s starting point is that ‘the rule of law’ means that:59 1. 2.

No one can be punished except for a distinct breach of the law established in a proper legal manner before established courts. No one is above the law, everyone is subject to the law and all are subject to the same law administered in the same courts.

He acknowledges that some legal scholars, such as Joseph Raz, John Finnis, Judith Shklar and Jeremy Waldron, have suggested that the rule of law is little more than a self-congratulatory rhetorical device — ‘ruling class chatter’

according to Judith Shklar, and ‘hurrah for our side’ according to Jeremy Waldron. On the other hand, he notes, the rule of law is frequently referred to in modern legal judgments, and is used to enforce minimum standards both substantive and procedural. He refers, for example, to Lord Steyn, who stated that parliament must be presumed not to legislate contrary to the rule of law.60 Bingham notes that the rule of law is embedded in international instruments such as the Universal Declaration of Human Rights (in its preamble): ‘It is essential, if man is not to be compelled to have recourse, as a last result, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ Bingham says the rule of law is an important factor in the European Convention on Human Rights (1950), which refers to governments with a ‘common heritage of [page 43] political traditions, ideals, freedom and the rule of law’. It is widely recognised in many countries throughout the world. Bingham notes that under the Constitutional Reform Act 2005, in the United Kingdom, the Lord Chancellor on taking office must swear to respect the rule of law and defend the independence of the judges. The expression ‘rule of law’ was not defined in the Act; its meaning therefore must be left to be worked out in the context of particular cases. The core meaning is that all persons and authorities within the state are bound by and entitled to the benefit of laws publicly made and applied in the future by courts in public. Bingham refers to John Locke, who said, ‘[w]herever law ends, tyranny begins.’61 However, he says, the acknowledgment of this does not require the adulation of the law or lawyers, and there are many who might sympathise with Shakespeare: ‘the first thing we do, let’s kill all the lawyers’.62 Bingham’s historical review of the rule of law goes back to the principles contained in the Magna Carta of 1215, which stated that:63 No free man shall be seized or imprisoned or stripped of his rights or possessions … or deprived of his standing … except by the lawful judgement of his equals or by the law of the land. To no one will we sell, deny or delay right or justice.

He notes that the Coronation oath contains a promise to exercise justice and mercy in all judgments. It is accepted that even the supreme power in the state must be subject to certain overriding rules, the supreme executive authority being vested in Her Majesty’s Ministers. As Bingham states, the lesson that the supreme authority in the state is subject to the law has, historically, been painfully learned: ‘It cost one king his head and another his throne’.64 Bingham outlines a number of remedies which have evolved to protect the rule of law. The writ of ‘habeas corpus ad subjiciendum’ can be issued where it is alleged that a person has been unlawfully detained. This writ, addressed to the governor of the prison where the person is detained, requires the governor to produce the person before the court to determine if the detention is legal:65 The simplicity of the writ is its strength and virtue. It has been widely recognised as the most effective remedy against executive lawlessness that the world has ever seen, a remedy introduced and developed by the judges … Thus a person may not be detained against his will on the say-so of a minister or official, unless such direction has the authority of law.

Similarly, the Petition of Right, created in 1628, prevented people from being detained by some special direction of the sovereign. [page 44] Bingham refers to Sir Mathew Hale, who, on taking office as Chief Justice, resolved that in the execution of justice, ‘I carefully lay aside my own passions, and not give way to them however provoked’.66 He says that Hale was committed to do what was just, irrespective of public opinion. Bingham advocates that parliamentary and public opinion, informed by the media, should be alert to detect and scrutinise any infringement of the rule of law. It is here, he says, that the judges’ role in maintaining the rule of law is crucial. Bingham sees the Bill of Rights 1689 and the Act of Settlement 1701 as, in effect, an agreement between the monarch and parliament whereby the power to suspend laws without the consent of parliament was declared illegal. In addition, the legislation laid the foundation of judicial independence, so that judges could enforce the laws without intimidation or victimisation. In Bingham’s view ‘[a] truly independent judiciary is one of the strongest safeguards against executive unlawfulness’.67

2.4.1 The meaning of the rule of law Bingham says the law must be accessible, clear and predictable. He points to Alan Greenspan (chairman of the Federal Reserve Bank of the United States), who said that the single most important contributor to economic growth was the rule of law. The requirement is clearly stated by courts all over the world. Interestingly for our subsequent discussion, Bingham notes that in continental Europe the court speaks with a single authoritative voice, and no dissent is permitted. In the United Kingdom, the Court of Appeal (Criminal Division) is required to issue a single judgment, except when the presiding judge says the question is one of law, in which case separate judgments may be provided.68 It is a course which, Bingham says, is never adopted in practice. Bingham agrees with Heydon J of the Australian High Court that there is always a fear that judicial activism, taken to extremes, can spell the death of the rule of law.69 It is one thing to adapt the law in the direction in which it is going, but quite another to recast it in a radically innovative way, because that makes it uncertain and unpredictable, which, he says, would be the antithesis of the rule of law.70 Bingham then identifies a number of key issues arising from the rule of law requirements, which are of particular importance in our discussion of possible wrongful convictions. [page 45]

2.4.2 The right to a fair trial Bingham describes the right to a fair trial as the ‘cardinal requirement of the rule of law’.71 A trial is not fair if the procedural dice are loaded in favour of one side or the other; if there is no ‘equality of arms’.72 Bingham says the constitution of a modern democracy governed by the rule of law must guarantee the independence of judicial decision-makers. This expression must include all those who make decisions of a judicial character, ‘whether judges (or jurors or magistrates) or not’.73 In the United Kingdom, statutory provisions state that Ministers of the Crown and others with responsibility for the administration of justice must uphold the independence of the judiciary. Ministers must not seek

to influence particular judicial decisions through their special access to the judiciary.74 Judges ‘and all decision-makers in the fields under discussion’ must be independent of ministers, government and all forms of social and political pressure.75 Bingham says there would be an obvious threat to decision-makers’ independence if their prospects of promotion were dependent upon the acceptability of judgments to those affected by them. They must decide the questions solely on the legal and factual merits of the case as they judge them to be. Bingham also emphasises the need for an independent legal profession fearless in its representation of those who cannot represent themselves. Decision-makers must be impartial. There is an obvious danger where judicial offices are held by political appointees; for this reason, in the United Kingdom, judicial appointments are made by independent selection boards. Bingham states that it would be wrong for the Administration to ask judges for advice, or for judges ‘to take any part in advising the Administration’.76 If that were to occur, it might prejudice the judges if the same matter arose in a real case before the court. He says the right to a fair trial is said to be fundamental and absolute.77 This means that an accused person must have disclosure of material which would be helpful to establishing any defence to the charges. Bingham says, ‘All these rights would, I think, strike most people as a very basic entitlement.’78 He also refers to the basic rule that a person should be able to confront and cross-examine prosecution witnesses.79 This is presumably linked to the disclosure rule, because any cross-examination will depend on having access to information which would aid that process of inquiry. As Bingham points out, ‘[i]f the effect [page 46] of non-disclosure is to render a hearing unfair, the rule of law is violated.’80 As an example, Bingham states that if a parole board were to act on information that parties or their legal advisors had not seen, the subsequent hearing would lack the essential characteristics of a fair hearing. He adds, ‘[i]t is important not to pussyfoot about such a fundamental matter.’81

2.4.3 Law not discretion Bingham says that where an official claims to have a discretion, but will not explain the basis for its exercise, ‘such a regime would plainly violate the rule of law.’82 The exercise of discretion should be governed by law, not the arbitrary whim of an official. ‘What matters is that decisions should be based on stated criteria and that they should be amenable to legal challenge.’ He adds, ‘[i]t must be law, not discretion which is in command’:83 The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered.84

This will be important to our discussion of the petition procedure in Chapter 4.

2.4.4 Equality before the law Bingham’s discussion of this topic relates to MacCormick’s discussion of the role of universals, the need to establish general rules, the necessity to be able to justify distinctions between cases and the requirement to treat like cases alike. The rule of law requirement is that the laws of the land should apply equally to all save to the extent that objective differences justify differentiation. Bingham says that ordinary people regard equality before the law as a cornerstone of our society:85 ‘Every person within the jurisdiction enjoys the equal protection of our laws.’86 Bingham refers to Justice Jackson in the American Supreme Court, who said that there is no more effective guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that [page 47] might be visited upon them if larger numbers were affected. Bingham says courts

can take no better measure to assure that laws will be just than to require that laws be equal in operation.87 He says it is important to the rule of law that ministers and public officials must exercise powers in good faith, honestly and fairly for the purpose for which the powers were conferred:88 ‘This is the very heart of the rule of law principle’.89 Nothing ordinarily authorises the executive to act otherwise than in strict accordance with the law. To ensure that this occurs, judicial review has been around for centuries. But it is only for review, and not to usurp the decisionmaking power of the person to whom it has been delegated. The judges are, as it were, auditors of legality.90 A director of public prosecutions or other official may follow guidelines or policy, says Bingham, but:91 … there is a presumption that the decision made will be in accordance with the law. It is what lawyers call an irrebuttable presumption: one that is conclusive and cannot be trumped.

If a decision is activated by bad faith or vindictiveness, it will be found to be an abuse of power and contrary to the public good.92 In summing up, Bingham states that there must be fairness: no bias or personal interest. There is a right to be heard before any adverse judgment is made. A statutory power can only be used to advance the purpose of the Act, and not for some other purpose. It cannot be used for an improper purpose. Bingham then moves to locate his discussion of the rule of law within the context of human rights and international law, as we do in this book.

2.4.5 Human rights The general principle is that under the rule of law, the law must afford adequate protection of human rights. Michael Kirby, former Justice of the High Court in Australia, in his discussion of the issue, states:93 We can never ignore our duty as lawyers, and as citizens and human beings, to ask whether the law so appearing is contrary to universal human rights. If it is, it is a breach of the fourth of Lord Bingham’s subordinate attributes of the ‘rule of law’ as that principle is understood today.

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Bingham points to the issue raised by Joseph Raz when he suggests that a legal regime could satisfy all the formal requirements of legality whilst embracing slavery or other fundamental obstacles to human rights. Bingham thinks that, whilst that is technically correct, it would amount to a rather deficient view of the rule of law. He says Dicey referred to the issues we would now see as a central aspect of civil liberties within the section of his work devoted to the rule of law. Bingham makes the point that the Universal Declaration of Human Rights, the European Court of Human Rights and other human rights instruments link human rights with the rule of law. He says that law has to be more than the mere dictate of political authority. Even though there may be some difficulty in determining with any precision what human rights are, some fundamental rights are a matter of widespread agreement. The rule of law requires that the rights and freedoms which are seen as fundamental in developed societies should be protected. These fundamental rights include the right to liberty and security, and that ‘[a] person detained may bring proceedings by which the lawfulness of his detention can be speedily decided and his release ordered if it is unlawful’.94 Bingham refers to Lord Donaldson, Master of the Rolls, who stated, ‘[w]e have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms.’95 This view is supported historically by the Magna Carta, the Petition of Right, the Glorious Revolution and the story of James Somerset.96 To that one might add the processes of habeas corpus and judicial review, and the recognition in law of unjustified imprisonment as both a crime and an actionable civil wrong. Bingham says that whilst there are many basic rights and freedoms which fall under the purview of the rule of law, the most important for present purposes is the requirement that there be access to the courts without undue delay.97 He cites Gladstone’s view that justice delayed is justice denied. He also adds that the practical point is that for a judge to deliberate on judgments for years on end would be to exceed a tolerable period for reflection by a considerable margin.

2.4.6 International law Bingham states that the rule of law requires compliance by the state with its obligations in international law.98 He says the closeness of the relationship between the international protection of human rights and the rule of law has been increasingly recognised at national and international levels. The ministerial

code in the United Kingdom obliges ministers to comply with international law and treaty obligations. The Secretary General of the United Nations (UN) said that the [page 49] rule of law was at the heart of the UN’s mission, it being a principle of governance in which all persons and institutions, including the state itself, is accountable to laws that are publicly promulgated.99 The European Court of Human Rights has said that ‘the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention’.100 Bingham says that because of the interrelationship between national and international law, the rule of law cannot be plausibly argued to apply in one sphere but not the other.101 He notes that there are ongoing problems with this analysis. He cites the President of the International Court of Justice, who said that the absence of compulsory recourse to the Court falls short of a recognisable ‘rule of law’ model, and that the extent to which the rule of law is compatible with notions of sovereignty may be debatable.102 The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.

However, Bingham says, it must be recognised that the parliament must be supreme in any contest between parliament and the judiciary. A society dedicated to the rule of law means that, theoretically, parliament could legislate in ways which infringe the rule of law. Bingham concludes that aspiration without action is sterile. He said we must be doers of the word, not just hearers only.103 At the end of the day, he says, the difference between good and bad government lies in the rule of law. We now need to affirm that the issues we have been discussing are appropriately reflected in and are part of the Australian legal system.

2.5

The rule of law and the principle of

legality in Australia The former Solicitor-General for South Australia stated in the Introduction to his book on the Constitution of South Australia:104 To say that a State government is subject to the ‘rule of law’ does not merely mean that the government is required to comply with court orders, important as that principle is. It also means that the government has a positive obligation to ascertain

[page 50] for itself what the law is, and then to apply that law fairly and consistently. As the Privy Council put it: It is the duty of the Crown and of every branch of the Executive to abide by and obey the law … it is the duty of the Executive in cases of doubt to ascertain the law, in order to abide the law, not to disregard it.

The problem is that, sometimes, the complexity of the law can obscure the fundamental values it is meant to serve: ‘[T]he complexity of law today can deprive it of moral clarity and thus detach it from concepts of what is just and fair.’105 Our task in Part II of this book is to analyse the criminal appeal rights in stages. In doing so we hope to bring some clarity to some of the detailed considerations which they raise. When we do so we will find that unnecessary complexity has resulted in rules which are at times unfair and unjust. Later in the book, in our case analyses, we will find that confusion about the status function of people such as prosecutors and expert witnesses has also led to outcomes which are unfair or unjust. Moral clarity can be restored by reflecting upon what we understand by the rule of law, and its relationship to basic issues of human rights. Chief Justice French has spoken of the rule of law in Australia in a number of recent extra-curial addresses. His views closely mirror those we have discussed in the earlier stages of this chapter.

2.5.1 Justification Chief Justice French acknowledges, as MacCormick has done, that absolute certainty whether in the law or in science is mostly an illusion. The questions

posed by the law, including questions about legal responsibility for cause and effect, can only present a range of possible answers. They do so within the imprecise boundaries defined by the language of the law.106 However, French CJ also notes (as MacCormick did) that the reasoning and answers given by the courts to legal problems are not at large. There are criteria by which some answers may be preferred to others, and some may be called ‘wrong’.107 He says that to decide the legal rule — constitutional, statutory or judge-made — which applies to a case often involves choices, but they are legitimate choices if made according to generally accepted rules.108 Chief Justice French acknowledges that every judge faced with a question of interpretation must operate within accepted rules of interpretation, and must not work to some preconceived result based on personal, political, social or ideological [page 51] preferences. The judge must respect the limits of the language which has been chosen by the parliament.109 Chief Justice French makes a point which we refer to a number of times in the course of our work. In avoiding any excessive formalism he states that:110 The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.

However, he says that it is always possible that an act of interpretation will work with different background factors to those assumed by previous authors, and in so doing bring about subtle or not-so-subtle shifts in meaning.111 Chief Justice French accepts that there is room in judging for choices to be made which are informed by what might popularly be called moral values.112 He explains that a possible problem with this is when the moral nature of the judgment is hidden from view:113 But bad forensic science also has the capacity to seduce and mislead.114 The classification of some conditions as diseases, such as schizophrenia, and others as disorders, such as psychopathy, may reflect normative or moral judgments made in the classification process long before it gets to court.

He refers to Ronald Dworkin’s ‘big idea’ about moral value providing an objective basis for ideas of justice:115 We cannot defend a theory of justice without also defending, as part of the same enterprise, a theory of moral objectivity. It is irresponsible to try to do without such a theory.

On that basis French CJ refers to the fact that Dworkin was prepared to state his belief that there are objective truths about value, and ‘that some institutions really are unjust and some acts really are wrong no matter how many people [page 52] believe that they are not’.116 Perhaps we need to add in here Searle’s distinction between ‘epistemologically objective’ and ‘ontologically subjective’. When we also add MacCormick’s principles of coherence and consistency, we can see that those principles operate within the structure of our ideas (those which are epistemologically objective and reflect shared intentionality), and not between those ideas and any ontologically objective reality (the world of ‘brute facts’). In a more basic form, we may say that subscription to the fundamental rule of law and human rights principles which we discuss in this chapter will inevitably lead to the various forms of discontent which we express about the appeal rights in the subsequent chapters. With careful analysis, and using the tools provided by MacCormick dealing with coherence, consistency and compliance, we can identify tensions and points of irrationality within the structure of the appeal rights in Australia. If one accepts the rule of law principle that legal officials cannot have unfettered discretion or unlimited power, then it is simply inconsistent with that principle to accept such an unfettered discretion in relation to the petition procedure. If it is said that the appeal rights depend upon strict compliance with the words of the statute, then it is inconsistent to restrict the appeal right to one appeal, when the number of appeals is not stated in the statute. If the statute is read to mean one appeal on the basis that there is a petition procedure available for special cases, then it is either incoherent or inconsistent to assert that an applicant under the petition procedure has no legal rights. In the following chapters, we will maintain that some choices made by the courts in respect of the interpretation of the appeal rights were not just suboptimal, but in fact wrong. As we explain in Chapter 3, the restriction of the

criminal appeal right to only one appeal was not just a bad choice; it was indicative of an error of reasoning. In Chapter 4, we say that the claim that the Attorney-General can exercise an unfettered discretion in respect of the petition procedure was also an error of judgment. It conflicts with basic rule of law principles. In Chapter 5, we say that the adoption of the proviso in Australia as part of the grounds of appeal was also based upon a mistake. However, when we speak of an objective basis to the existence of error, the term is not meant in an absolutist sense, for that would go against much of the previous discussion based upon Searle and MacCormick and the nature of social and legal institutions. It is meant in a more restricted sense, using the criteria of coherence, consistency and compliance which MacCormick spoke of — in the context of the rules governing status functions which Searle spoke of. We merely need to point out that if judges uphold the rule of law principles (as part of their status function), then the decisions in respect of the appeal rights and of the petition procedure are inconsistent with those principles. On MacCormick’s consequentialist view, they lead to adverse or unintended outcomes — people with a credible claim to have been wrongfully convicted languish without any avenue for legal review of their claims. The Australian Human Rights Commission has declared this situation to be in breach of international human rights obligations. [page 53] The discussions in later chapters concerning wrongful convictions involve similar problems, where the claim is that the conduct at trials was inconsistent with other rules of law. In that sense we say that that our critique is based upon objective legal error. On the existence of objective error as advocated by Dworkin, French CJ has said, ‘[i]f you accept that proposition then you accept the possibility that acting in the interests of justice may involve swimming against the tide of public opinion.’117 Swimming against the tide is a common experience for those dealing with miscarriage of justice cases — more frequently in the early stages. It is not uncommon for those wrongfully accused, or wrongfully convicted, to be portrayed in accordance with negative stereotypes. Correcting legal error can

often be as much about changing social perceptions as it is about changing the legal perceptions. French CJ has said that in Australia, the rule of law is closely connected to the idea of justice; particularly administrative justice.118 He says it provides the framework within which official power, affecting individuals, must be exercised. It requires: 1. 2. 3. 4. 5.

lawfulness — decisions must be authorised by statute, prerogative or constitution; rationality — decisions must comply with the structure of the power under which they are made; consistency — decisions must treat like cases alike; fairness — decisions must be fair and impartial, and there must be a right to be heard; and good faith — decisions must be honest and conscientious as an aspect of rationality.

He says that these criteria apply to official decisions in the exercise of judicial power. In particular, he says that there are certain conclusions we can draw from our understanding of the rule of law principles.

2.5.2 No such thing as unlimited official power Chief Justice French says we should understand that all official power is based upon legal rules found in the Constitution, or from laws made under it.119 This is consistent with Searle’s discussion of the rules concerning status functions or the legal theorists’ discussions of power-conferring rules. Chief Justice French said there is no such thing as unlimited official power, whether legislative, executive or judicial. He refers to a statement of the Chief Justice of Singapore: ‘[a]ll legal powers, even a constitutional power, have legal limits. The notion of a subjective or unfettered discretion is contrary to the rule of law.’120 As French CJ says, ‘no law can confer upon a public official unlimited power’. [page 54]

2.5.3 Rationality requires consistency and fairness The Chief Justice goes on to say that legal powers must be exercised rationally, consistently, fairly and in good faith: ‘[t]he application of any legal rule is confined by its own internal logic’.121 He speaks of ‘the rules of reason’, saying that ‘[r]easonableness in the exercise of official power may be regarded as an aspect of the rule of law. So too may consistency which is perhaps a species of the genus of reasonableness.’ He speaks of consistency as an aspect of rationality, and makes the point that it implies ‘equality before the law’, ‘which in turn is an aspect of the rule of law’. He cites one of his own judgments to illustrate the point:122 Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’.

Just as MacCormick has done, French CJ explains that consistency is part of rationality, which is an essential element of the rule of law. He links it also to the general requirement of fairness, and particularly to procedural fairness, which is a requirement for rational decision-making:123 Fairness is not simply an ethical ornamentation upon official decision-making. It is an instrument of that rationality which the logic of the law and the rule of law demands.

French CJ explains that rationality, consistency, fairness and good faith are all ‘considered as an aspect of the concept of limitations on official power which are central to the rule of law’.124

2.5.4 Statutory interpretation The Chief Justice makes the point that statutory interpretation is ‘the application of the rule of law in court.’125 In reference to Lacey v A-G (Qld) he says that ‘legislative intention’ is a construct. It does not refer to ‘an objective collective mental state’, but is a statement which is indicative of ‘compliance with the rules of construction … which are known to parliamentary drafters and the courts.’126 This is suggestive of the ‘iterated structures’ which Searle referred to earlier. Intentionality is not a search for an historical psychological or mental state. It is an inference which leads to an attribution, based upon the rules governing the status function of those involved in this process.

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2.5.5 Statutory responses can be dysfunctional Chief Justice French has acknowledged that statutory provisions even if well intended might be the cause of further problems. He says that there is a class of laws which find their way on to the statute books because of a particularly bad case which has led to a public perception of inadequacy in the existing law.127 Such laws may rectify a deficiency which has led to an injustice, but, if produced hurriedly and under pressure, they too may unexpectedly cover a range of circumstances beyond those which inspired them. This is the basis of our critique of the new statutory right of appeal which we discuss in Chapter 6.

2.5.6 The rule of law’s basic values and the Constitution In emphasising the fundamental nature of the rule of law, the Chief Justice explains that it is the principle upon which the Constitution itself depends. In Totani, he stated that, ‘[t]here must be the universal application throughout the Commonwealth of the rule of law; an assumption “upon which the Constitution depends for its efficacy”.’128 As we have seen, MacCormick and Bingham also regard ‘access to justice’ as an integral aspect of the rule of law. Former Chief Justice Sir Gerard Brennan has referred to the problem of ‘failing to provide the dispute resolving mechanism that is the precondition of the rule of law’.129 French CJ also emphasises the ‘equality before the law’ aspect of the rule of law. He says:130 The rule of law, upon which the Constitution is based, does not vary in its application to any individual or group according to the measure of public or official condemnation, however justified, of that individual or that group. The requirements of judicial independence and impartiality are no less rigorous in the case of the criminal or anti-social defendant than they are in the case of the lawabiding person of impeccable character.

In the following chapters, we develop the view that it is a failure of access to justice to prevent people with meritorious claims from being able to have their cases heard by the courts. We also emphasise the fact that what we think about

the various applicants does not matter; their status function as citizens means that they should all have the same right of access to justice. [page 56] Chief Justice French in Totani made much of the idea of ‘judicial independence’ in the context of decisions which affect personal liberty:131 It is a requirement of the Constitution that judicial independence be maintained in reality and appearance for the courts … Observance of that requirement is never more important than when decisions affecting personal liberty and liability to criminal penalties are to be made.

It would hardly be a stretch of the analogy to say that Attorneys-General, when making determinations in respect of petitions, must also be, and be seen to be, acting independently of any political or other motivations. However, the only way in which that could be demonstrated would be to require full disclosure of submissions made during the decision-making process, and written reasons at the conclusion of it. Clearly, the better solution is to follow the example of South Australia and Tasmania; to create a new appeal procedure which would allow such matters to be dealt with by the open processes of the courts.

2.5.7 The unity of Australian law It is difficult to see how the problems of interpretation in relation to the criminal appeal rights and the statutory referral power can be quarantined. French CJ has said that the Constitution; the federal, state and territorial laws; and the common law in Australia together constitute the law of this country, and form ‘one system of jurisprudence’.132 He notes, in the context of broader arguments about the unity of the court system in Australia, that the system has a long history. He says that one of the proponents of unification was Sir Owen Dixon, who, in 1927, argued for one system of courts.133 He also indicates that the topic is of contemporary relevance, pointing out that there are principles emanating from the High Court in relation to the unity of Australian law.134 For example, French CJ says that intermediate appellate courts and trial judges in Australia should not depart from decisions of intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is

plainly wrong. He says that since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to nonstatutory law.135 [page 57]

2.5.8 Common law interpretation and the principle of legality The Chief Justice describes the principle of legality as an aspect of the rule of law derived from the common law, and as being ‘well established in Australia’.136 The principle ensures that statutes are construed so as to avoid infringing fundamental rights and freedoms in the absence of clear words to that effect. French CJ refers to an English case to make the point. In R v Secretary of State for the Home Department, Ex parte Simms, Lord Hoffmann said:137 In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

The Chief Justice then makes an important point about the status of this principle of legality. He explains that the Commonwealth and state constitutions do not guarantee to protect the common law rights and freedoms against legislative erosion. However, he adds, ‘[t]he principle of legality can nevertheless be regarded as “constitutional” in character even if the rights and freedoms which it protects are not.’138 He adds that:139 … the strength of the principle should not be underestimated … The common law principle of legality has a significant role to play in the protection of rights and freedoms in contemporary society while operating consistently with the principle of parliamentary supremacy.

The protection of fundamental values and the principle of legality is said to be a specific principle of statutory construction. Former Chief Justice Murray Gleeson, delivering an oration, defined in the following way: … courts will decline to impute to Parliament an intention to abrogate or curtail fundamental human rights or freedoms unless such an intention is clearly manifested by unambiguous language, which indicates that Parliament has directed its attention to the rights and freedoms in question, and has consciously decided upon abrogation and curtailment.140

As he points out, there is nothing revolutionary about the principle of legality. He explains that in 1908 the High Court in Potter v Minahan had adopted a passage [page 58] from Maxwell on Statutes which said that ‘[it] is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness’.141 As he concludes, ‘[i]t is the working hypothesis of a liberal democracy.’142 Gleeson says that in applying the ‘principle of legality’, courts will, of course, construe statutes, where constructional choices are open, so as to minimise their impact upon common law rights and freedoms. That principle, well known to the drafters of legislation, seeks to give effect to the presumed intention of the enacting parliament not to interfere with such rights and freedoms except by clear and unequivocal language for which the parliament may be accountable to the electorate.

2.6 Human rights Australia does not have a strong or detailed framework of human rights provisions, or a separate system of courts focussed upon the enforcement of human rights provisions. The United Kingdom by contrast has the European Convention on Human Rights and access to the European Court of Human Rights, and in addition the domestic Human Rights Act 1998 (UK). In Australia, the main human rights provisions are the International Covenant on Civil and Political Rights (ICCPR), which Australia ratified in 1980, the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). The legislation in Victoria and the Australian Capital Territory deal with a wide range of social, political and legal rights which directly or indirectly affect the application of the criminal law. They also reflect some of the more general provisions which are found in the ICCPR and which apply to all states and territories in Australia. Apart from the general

observations which have already been made about the relationship between rule of law principles and human rights, we only need to add here sufficient comments to support the discussion of later chapters about the applicability of human rights factors to the discussion about appeal rights. The Chief Justice of the Australian Capital Territory discussed that state’s Human Rights Act after it had been in force for 10 years.143 Her conclusion spoke directly of an issue which is an important theme of this book. She spoke of [page 59] procedural justice as a human right. She said it embodied the right to be heard — to have a voice. She said it required an impartial and sincere decision-maker. She said it required being treated with respect. However, it should be noted that the Chief Justice also said that ‘procedures are largely covered by the common law, which is unaffected by the HRA’.144 She added that it was her opinion that the HRA has had little direct impact upon the outcome of cases. She said that whilst it stands as a powerful symbolic statement, ‘there are very few in which it has made a difference to the outcome’.145

2.6.1 The International Covenant on Civil and Political Rights The ICCPR is part of the United Nations Human Rights regime. It was adopted and opened for signature on 16 December 1966, and came into force on 23 March 1976. It was ratified by Australia on 13 August 1980, and entered into force there on 13 November 1980.146 The preamble states that all citizens have a duty to promote and observe the rights in the Covenant. Article 2.2 states that each state party will ensure that all individuals within its territory can avail of the rights and that they will adopt such legislative or other measures as may be necessary to give effect to them. Article 2.3(a) states that each state party undertakes to ensure that any person whose rights or freedoms as therein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity. We develop the view in subsequent

chapters that the available appeal rights with the petition procedure do not amount to an ‘effective’ remedy. Article 2.3(b) says that any person claiming such a remedy shall have their rights determined by competent judicial authorities. We will say that the petition procedure, as currently construed, does not comply with this provision. Article 9.1 provides that there shall be no arbitrary detention, and deprivation of liberty must be based upon proper legal procedures. This book directs attention to the issue of continued detention after it can be shown that a person was wrongly convicted or did not have a fair trial. If such a person does not have access to a proper appeal procedure, then what was previously a lawful detention might have become an arbitrary detention. Article 9.3 provides for the right to a trial within a reasonable time. Article 9.5 provides that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. This can raise [page 60] interesting issues where it can be shown that a public official has withheld information showing that a person was wrongly convicted. Does the failure to disclose that information render any continuing detention unlawful? Article 14 states that a person shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The following sentence uses the word ‘trial’. Amongst other provisions, there is a right to a presumption of innocence, trial without undue delay and the right to a review of any conviction. Article 14.6 provides that where a person has had a conviction overturned on the basis of some new evidence which shows conclusively that there has been a miscarriage of justice, the person shall be compensated ‘according to law’ unless it is shown that the person was responsible for the non-disclosure. This is a rather vexed issue, which we discuss in Chapter 11. Article 50 ensures that the provisions extend to all parts of federal states without exceptions. The Australian Human Rights Commission website states that the United

Nations Human Rights Committee has made it clear that prisoners enjoy all the rights in the ICCPR and that Australian law has held that: It has been accepted that a statute of the Commonwealth or of a State is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law.147

It adds, ‘the content of Australia’s international obligations will therefore be relevant in determining the meaning of these provisions.’148

2.7

Conclusion

We have looked to the theory of John Searle to help us to understand the nature of institutional facts. We worked through the idea that entities created by people can have a degree of objectivity to them and become part of an objective reality which can meaningfully be said to control social outcomes. We then looked to the theory of Neil MacCormick to help us to understand the particular social institution of law. We saw that a key component to our understanding here is concerned with the nature of legal reasoning. Whilst it is flexible, open-ended and malleable in the hands of the judges, there are limits to what they can do in terms of their application and development of the legal [page 61] rules and principles. They (and we) will use criteria of coherence (narrative and normative), consistency, compliance and consequentialism to assess the adequacy with which they undertake their task. Whilst legal propositions are subject to defeasibility, there are nevertheless right and wrong ways of going about the task of revision. In many respects the following chapters are the testing ground for such a theory. MacCormick worked out his ideas to explain how a properly functioning legal system works. We apply those criteria to aspects of a legal system which we say are not working properly — the area of criminal appeals and wrongful convictions. We need the MacCormick criteria to justify and explain the basis for

our critique. MacCormick’s theory needs such a testing ground to establish the true value of the theory. MacCormick’s discussion takes place within the framework of what he calls ‘the rule of law’. It is derived from his theory of legal institutions, which whilst being abstract and philosophical does lead to a number of practical conclusions. Judges must justify what they do by reference to the existing legal rules, or at least the values which underpin them; discretions of judges and legal officials must be bounded and controlled by relevant legal principles; judges must properly explain what they do, and must not obfuscate or deviate from their proper task. Having established a proper theoretical basis for the rule of law principles, we turned to some eminent judges to see if the account we were developing resonated with what they had said on the subject. Indeed, eminent judges from the United Kingdom and Australia are in agreement about key features of the rule of law, and the practical values to which it gives rise. Having been Britain’s most senior judge, Lord Bingham obviously thought that ‘the rule of law’ was the most important issue he could work on once he stepped down from the bench. Central to the notion of the rule of law in his eyes was the right to a fair trial, the protection of human rights and the idea that all legal discretion was to be controlled and guided by appropriate legal rules and principles. Very similar ideas were also expressed by senior Australian judges; in particular by Robert French, the Chief Justice of the Australian High Court. In conclusion, it might be helpful to set out the key rule of law provisions established by the Law Council of Australia:149 1. 2. 3. 4.

The law must be both readily known and available, and certain and clear The law should be applied to all people equally and should not discriminate between people on arbitrary or irrational grounds All people are entitled to the presumption of innocence and to a fair and public trial Everyone should have access to competent and independent legal advice

[page 62] 5. 6. 7.

The Judiciary should be independent of the Executive and the Legislature The Executive should be subject to the law and any action undertaken by the Executive should be authorised by law No person should be subject to treatment or punishment which is inconsistent with respect for

8.

the inherent dignity of every human being States must comply with their international legal obligations whether created by treaty or arising under customary international law

In the next four chapters we begin our assessment and evaluation of the Australian criminal appeal process, and examine the extent to which it complies with the principles we have discussed in this chapter.

1.

2.

3. 4. 5. 6.

7. 8. 9. 10.

11. 12. 13. 14.

J Searle, The Construction of Social Reality, Allen Lane The Penguin Press, London, 1995, p xi (Social Reality). Unless otherwise stated, the views expressed in this section are Searle’s and are taken from this book. See also Making the Social World: The Structure of Human Civilization, Oxford University Press, Oxford, 2010, which further develops and refines the views Searle set out in Social Reality. For present purposes it is sufficient to base our discussion on Social Reality. For a discussion of Austin’s theory see R Moles, Definition and Rule in Legal Theory: A Reassessment of H L A Hart and the Positivist Tradition, Blackwell, Oxford, 1987 (Definition and Rule), Ch 2, ‘The Purpose and Method of Austin’s Theory’. The discussion here is from Searle, Social Reality, pp 3–5. Searle calls this an ‘invisible ontology’. By ‘ontology’ is meant the nature or essence of ‘being’ — what it is to ‘be’ something. Searle, Social Reality, p 4. This is a topic developed in Moles, Definition and Rule, Ch 6, ‘Epistemology: The Common Ground’. Here it was explained that the element of ‘purpose’ was an essential component of all abstract thinking, whether about the external world or our participation in it. The discussion in this section is from Searle, Social Reality, pp 9–23. Searle, Social Reality, p 29. This part of the discussion is from Searle, Social Reality, pp 32–55. John Austin, for example, referred to legal rules as a form of intellectual shorthand to refer to the underlying process of legal reasoning which they represent. See Moles, Definition and Rule, Ch 8, ‘Continuing Tensions in Modern Positivism’, p 253, citing J Austin, Lectures on Jurisprudence or The Philosophy of Positive Law, 5th ed (revised and edited by R Campbell), John Murray, London, 1885, Lecture II, p 114: ‘The inferences suggested to our minds by repeated experience and observation are, therefore, drawn into principles, or compressed into maxims. These we carry about us ready for use, and apply to individual cases promptly or without hesitation: without reverting to the process by which they were obtained; or without recalling, and arraying before our minds, the numerous and intricate considerations of which they are handy abridgments.’ On this topic see Searle, Social Reality, pp 60–71. Deontology is the study of the process of reasoning which explains the nature of duty and obligation. This is discussed in Searle, Social Reality, pp 80–93. Our discussion here is based upon N MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning, 2005 (Rule of Law). See also MacCormick’s Practical Reason in Law and Morality, 2008; Institutions of Law: An Essay in Legal Theory, 2007 (Institutions of Law); and Legal Reasoning and Legal Theory, 1978 (Legal Reasoning), all published by Oxford University Press, Oxford. See also N MacCormick, ‘Rhetoric and the Rule of Law’, Ch 8 in D Dyzenhaus (ed), Recrafting the Rule of Law, Hart Publishing, Oxford, 1999.

15. 16. 17.

18.

19. 20. 21. 22. 23. 24.

25. 26. 27. 28.

29. 30.

31. 32.

33. 34.

35.

See MacCormick, Institutions of Law, p 12, where he refers to the ‘powerful impact’ of the ideas of Elizabeth Anscombe and John Searle. MacCormick, Rule of Law, p 3. This part of the discussion is from MacCormick, Rule of Law, Ch 1, ‘Prologue: Institutional Theory and the Lawmaker’s Perspective’, pp 1–11. MacCormick, Rule of Law, p 2 (emphasis added). Similar views were expressed by L Fuller in The Morality of Law, rev ed, Yale University Press, New Haven, 1969; see ‘Part II: The Morality That Makes Law Possible’. Much of MacCormick’s work here reflects his earlier discussion of the work of H L A Hart in The Concept of Law, Clarendon Press, Oxford, 1961 (The Concept), and his distinction between dutyimposing and power-conferring rules, and the rule of recognition. See MacCormick, H L A Hart, Edward Arnold, London, 1981, Chs 6 and 9. Here, MacCormick refers to ‘The Ethics of Legalism’ (1989) 2(2) Ratio Juris 184–93. MacCormick, Rule of Law, p 12. This part of the discussion is from Ch 2, ‘The Rule of Law and the Arguable Character of Law’, pp 12–31. MacCormick, Rule of Law, p 16. For an interesting case on this issue see K Borick QC, ‘Expert witnesses and the duty of disclosure: Keogh v James: Per incuriam’ (2011) 8(11) Direct Link 7–10. This becomes important to our discussion of the petition procedure in Chapter 4. MacCormick, Rule of Law, p 21. In South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 (Totani) at [247], Heydon J observed, ‘[g]overnment seeks to achieve its goals by many non-coercive techniques. But if they fail, in the end, at least in many fields, government depends on the exercise of coercive power. The States have routinely adopted the practice of resting their coercive power in important matters on the procurement of court orders.’ MacCormick, Rule of Law, p 24. MacCormick, Rule of Law, p 24. MacCormick, Rule of Law, p 24. MacCormick, Rule of Law, p 26 referred to the Charter of Fundamental Rights of the European Union. The provision is now Art 47, which provides that a person whose rights are violated has the right to an effective remedy and a fair and public hearing, by an independent tribunal, with advice, representation and legal aid. MacCormick, Rule of Law, p 27. This section is based upon MacCormick, Rule of Law, pp 23–32. Open-textured means ‘vague in relation to some contexts at least’: see Legal Reasoning, p 66. The principle is derived from Hart, Concept of Law, pp 124–32. This was an issue discussed in Moles, Definition and Rule, Ch 5, ‘Rules: Their Application and Development’. R S French, Chief Justice, ‘Don’t you know who I am? — Ego and Identity in the Administration of Justice’, New South Wales Bar Association, Bench and Bar Dinner, Sydney, 8 May 2009, p 5,

(accessed 26 July 2015). MacCormick’s views here are from MacCormick, Rule of Law, Ch 3, ‘On the Legal Syllogism’, pp 32– 48. MacCormick, Rule of Law, p 47. However, see Moles, Definition and Rule, Ch 5 for examples of fundamental legal rules which were changed by the judges. It is interesting to see the range of argumentative and other strategies those judges employed to achieve their goals. MacCormick, Rule of Law, p 54.

36. 37. 38. 39.

40. 41. 42. 43. 44. 45. 46. 47. 48. 49.

50. 51.

52.

53. 54. 55. 56. 57. 58. 59. 60. 61. 62.

MacCormick, Rule of Law, p 56. MacCormick, Rule of Law, p 75. MacCormick, Rule of Law, p 77. R French, Chief Justice, ‘Science and Judicial Proceedings: Seventy-six Years on’ (2009) 7 Journal of Law and Medicine 206 (‘Science and Judicial Proceedings’), citing Grant v Australia Knitting Mills (1933) 50 CLR 387; [1933] ALR 453 (Australian Knitting Mills). French, ‘Science and Judicial Proceedings’ at 206, fn 6, citing Australian Knitting Mills at CLR 427. French, ‘Science and Judicial Proceedings’ at 209, citing Sir Owen Dixon’s address as discussed in S Woinarski, Jesting Pilate and Other Papers and Addresses, 2nd ed, W S Hein, Buffalo, 1997, p 18. French, ‘Science and Judicial Proceedings’ at 208. MacCormick, Rule of Law, p 83, referring to R Summers, ‘Two Types of Material Reasons: The Core of a Theory of Common Law Justification’ (1978) Cornell L Rev 716–22. MacCormick, Rule of Law, p 93. This was a point made by John Austin, the 19th-century legal theorist. See the discussion of this in Moles, Definition and Rule, Ch 8, ‘Continuing Tensions in Modern Positivism’, above fn 10. MacCormick, Rule of Law, p 97: ‘Hypotheses come not as single spies, but in battalions.’ This was initially discussed as Ch VI, ‘Consequentialist Arguments’ in Legal Reasoning. It appears in its most developed form in MacCormick, Rule of Law, Ch 6, ‘Judging by Consequences’, pp 101–20. MacCormick, Rule of Law, p 116. This issue was initially discussed in MacCormick, Legal Reasoning, Ch 9, ‘Legal Reasoning and Legal Theory’, and more recently in MacCormick, Rule of Law, Ch 7, ‘Arguing about Interpretation’, pp 121–42. MacCormick, Rule of Law, p 139. See MacCormick, Rule of Law, Ch 5, ‘Universals and Particulars’, where he discusses (at p 97) the more general philosophy of I Kant, Critique of Pure Reason, Macmillan, London, 1933, pp 30–1 and (at p 94) R M Hare, Proceedings of the Aristotelian Society, 1972–3, ‘Principles’, p 1. French CJ makes the point that bias is a breach of the requirements of procedural fairness. See R French, AC, Chief Justice, ‘The Rule of Law as a Many Coloured Dream Coat’, Singapore Academy of Law 20th Annual Lecture, 18 September 2013 (‘Many Coloured Dream Coat’),

(accessed 26 July 2015). MacCormick, Rule of Law, p 143. MacCormick, Rule of Law, p 189. MacCormick, Rule of Law, p 199. This and the following comment are from MacCormick, Rule of Law, p 280. T Bingham (The Rt Hon Lord Bingham of Cornhill KG), The Rule of Law, Penguin Books, London, 2010 (Rule of Law), Introduction. T Bingham, ‘The Rule of Law’, Sixth Sir David Williams Lecture, Centre for Public Law, University of Cambridge, 16 November 2006. Bingham, Rule of Law, pp 3–5, citing A Dicey, Introduction to the Study of the Law of the Constitution, 1885; 9th ed, MacMillan, London, 1945, p 188. Bingham, Rule of Law, p 6, citing R v Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539 at 591; [1997] 3 All ER 577. Bingham, Rule of Law, p 8, citing J Locke, Second Treatise of Government, 1690, chap XVII, s 202. Bingham, Rule of Law, p 9.

63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99.

Magna Carta cll 39 and 40. Bingham, Rule of Law, p 25. Bingham, Rule of Law, p 14. Bingham, Rule of Law, p 20. Bingham, Rule of Law, p 25. Bingham, Rule of Law, p 44, citing Supreme Court Act 1981 (UK) s 59. Bingham, Rule of Law, pp 46–7, citing J Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47(1) Quadrant 9. Bingham, Rule of Law, pp 45–6. Bingham, Rule of Law, p 90. Bingham, Rule of Law, p 90, citing Engel v Netherlands (No 1) (1976) 1 EHRR 647 at [91]. Bingham, Rule of Law, p 91. Bingham, Rule of Law, p 91, citing the Constitutional Reform Act 2005 (UK) s 3(1) and (5). Bingham, Rule of Law, p 92. Bingham, Rule of Law, p 94. This is discussed further in relation to the ‘point referral power’ in Chapter 4. Bingham, Rule of Law, p 96. Bingham, Rule of Law, p 97. Bingham, Rule of Law, p 100. Bingham, Rule of Law, p 109. Bingham, Rule of Law, p 105. Bingham, Rule of Law, p 50. Bingham, Rule of Law, p 51, citing D v NSPCC [1978] AC 171 at 239; [1977] 1 All ER 589. Bingham, Rule of Law, p 54. Bingham, Rule of Law, p 55. Bingham, Rule of Law, p 57, citing Scarman LJ in R v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 at 111–12; [1983] 1 All ER 765. Bingham, Rule of Law, p 58, citing Railway Express Agency v New York 336 US 106 (1949) at 112–13. Bingham, Rule of Law, p 60, citing Holgate-Mohammed v Duke [1984] AC 437 at 443; [1984] 1 All ER 1054. Bingham, Rule of Law, p 60. Bingham, Rule of Law, p 61. Bingham, Rule of Law, p 61. Bingham, Rule of Law, p 62, citing R v Derbyshire County Council, Ex parte Times Supplements Ltd (1991) 3 Admin LR 241 at 253. Hon Michael Kirby AC CMG, ‘The Rule of Law Beyond the Law of Rules’ (2010) 33 Australian Bar Review 195 at 210. Bingham, Rule of Law, p 72. Bingham, Rule of Law, p 72, citing R v Secretary of State for the Home Department, Ex parte Cheblak [1991] 1 WLR 890 at 894. Bingham, Rule of Law, p 72. Bingham, Rule of Law, p 87. Bingham, Rule of Law, p 110. Bingham, Rule of Law, pp 110–11, referring to the Secretary-General of the United Nations’ report of

23 August 2004 to the Security Council, S/2004/16, para 6. 100. Bingham, Rule of Law, p 117, citing Ukraine-Tyumen v Ukraine, 22 November 2007, para 49. 101. Bingham, Rule of Law, p 119. 102. Baroness Hale in R (Jackson) v Attorney General [2006] 1 AC 262; [2005] 4 All ER 1253; [2005] UKHL 56 at [159], cited in Bingham, Rule of Law, p 167. 103. Bingham, Rule of Law, p 173. The reference is to the Bible, James 1.22. 104. B Selway QC, The Constitution of South Australia, Federation Press, Sydney, 1997, Preface, citing Eastern Trust Co v McKenzie, Mann & Co Ltd [1915] AC 750 at 759. 105. R French CJ, ‘Justice in the Eye of the Beholder’, Justice and Law Foundation, Sydney, 21 October 2013 (‘Justice in the Eye of the Beholder’), p 7,