Existing avenues for review
45.32 Dr Gregor Urbas has commented that:
The promise of DNA evidence in overturning wrongful convictions depends heavily on the capacity of the criminal justice system, through the criminal appeals process and other post-conviction proceedings, to recognise and correct errors. This capacity depends in turn on the criminal justice system’s appreciation of its own fallibility, including its capacity to deal with mistakes of fact as well as procedural irregularities or mistakes of law in criminal trials.
45.33 Every Australian jurisdiction provides statutory avenues for appeal against conviction. Appeals from verdicts in serious criminal matters are heard in Courts of Criminal Appeal within the Supreme Court of each state and territory jurisdiction.
Courts of Criminal Appeal
45.34 Courts of Criminal Appeal have the power to overturn convictions on three primary grounds: the verdict was unreasonable or unsupportable having regard to the evidence; the verdict was based on an error of law; or a miscarriage of justice occurred. A court may dismiss an appeal against conviction if it considers that no substantial miscarriage of justice has occurred.
45.35 Courts of Criminal Appeal in Australia have the power to receive additional evidence if this is deemed ‘necessary or expedient in the interests of justice’. The Federal Court also has a discretion to receive further evidence where it is ‘fresh’ and ‘cogent’. ‘Fresh evidence’ is evidence that either did not exist at the time of the trial, or which could not with reasonable diligence have been discovered at that time. In order to be admitted, the evidence must be material, and of such weight that the appellate court considers that if it had been placed before the jury together with the other evidence, a different verdict might reasonably have resulted.
High Court of Australia
45.36 The High Court has held that it does not have the power to receive fresh evidence in a criminal appeal. Therefore, if an appellant obtains fresh evidence, in the form of DNA evidence, after an unsuccessful appeal to a state or territory Court of Criminal Appeal, the High Court does not appear to have the power to receive that evidence or to hear any appeal based upon it.
45.37 All Australian jurisdictions provide for the Attorney-General to refer particular cases to appellate courts for further review, usually after the individual has sought a petition of mercy. Alternatively, the Executive may order a Royal Commission or similar inquiry into a conviction.
45.38 The University of Technology Sydney, and Griffith University each have established Innocence Projects, with the intention that law students may assist prisoners in gaining access to post-conviction review on the basis of DNA and other evidence.
Issues and concerns
45.39 In his submission to the Inquiry, Dr Urbas outlined the obstacles that might confront an appellant seeking the quashing of a conviction on the basis of DNA evidence. First, appellate courts narrowly interpret the grounds upon which they may overturn a conviction, and are reluctant to ‘usurp the function of the jury’. Second, there is the requirement that new evidence on appeal must be ‘fresh and cogent’, and the High Court’s inability to receive fresh evidence in a criminal appeal. Third, there are costs and difficulties in obtaining access to forensic material and having such material independently examined.
Options for reform
45.40 Several States in the United States have implemented legislation providing for post-conviction access to DNA testing and review of conviction. Most of these States have followed the Illinois or New York legislative models.
45.41 Illinois provides a number of conditions that must be satisfied for access to post-conviction DNA testing. The evidence must have been secured in relation to the trial; the identity of the offender must have been at issue during the trial; the evidence must have been subject to a proper chain of custody; the results must have the scientific potential to produce ‘new, non-cumulative evidence “materially relevant” to the defendant’s assertion of actual innocence’; and the testing methods must be accepted within the scientific community.
45.42 The New York model requires instead that the results must raise a ‘reasonable probability’ that the verdict would have been more favourable to the defendant.
45.43 The Innocence Protection Bill 2001 was introduced into the United States Congress to permit inmates convicted of federal offences to petition a federal court for post-conviction DNA testing. The Bill provides that federal courts must grant a defendant’s request for post-conviction DNA testing if:
- the DNA evidence relates to the federal crime for which the defendant was convicted;
- the evidence is still in existence and in a suitable condition for testing;
- the evidence has not been previously tested, or new DNA testing procedures exist that will resolve an issue not resolved by previous testing;
- the testing procedures are be scientifically valid; and
- the testing must yield ‘new, noncumulative, exculpatory evidence material to the claim’ of the defendant.
45.44 If the DNA testing produces exculpatory results, the federal courts must order a hearing and make appropriate orders.
45.45 As discussed above, the NSW Innocence Panel is an administrative body established for the purpose of arranging analysis of crime scene samples for use in appeals against conviction.
45.46 The Criminal Cases Review Commission (CCRC) is another model for post-conviction review. The CCRC is an independent body responsible for investigating suspected miscarriages of justice in England, Wales and Northern Ireland. The CCRC’s main responsibilities are to:
- review alleged or suspected miscarriages of justice, and to refer a conviction, verdict, finding or sentence to the appropriate court of appeal when it considers that there is a ‘real possibility’ that it would not be upheld;
- investigate and report to the Court of Appeal on any matter the Court refers to it; and
- consider and report to the Secretary of State on any matter referred to it regarding whether or not to recommend the exercise of the royal prerogative of mercy in relation to a conviction.
45.47 Other than in exceptional circumstances, a matter may only be referred to the CCRC if an appeal against the conviction, verdict, finding or sentence has been determined, or leave to appeal has been refused. The CCRC can investigate issues itself; appoint an expert to carry out an investigation or prepare a report; request police to carry out work; or require formal appointment of an investigating officer.
Submissions and consultations
45.48 DP 66 proposed that the Commonwealth should legislate to establish an independent body to consider applications for post-conviction review based on DNA evidence where the person provides prima facie evidence that there has been a miscarriage of justice.
45.49 Most of the submissions supported this proposal. The Human Genetic Society of Australasia suggested that the body should have the power to investigate alleged miscarriages of justice, similar to the CCRC. Liberty Victoria noted the apparent reluctance of appeal courts to re-open issues, and suggested that if the independent body referred a matter to an appeal court, the court should note that the body had considered there was a matter to be addressed.
45.50 By contrast, the South Australian Attorney-General’s Department considered that there was no need for a special post-conviction procedure for cases involving DNA evidence, on the basis that administrative avenues for review already exist.
45.51 Privacy NSW commented that:
The exercise of creating ‘innocence panels’ and establishing procedures for post-conviction review needs to be seen as more than a political stunt and a means of soft-selling the more privacy invasive aspects of DNA testing. The potential to provide a credible process of review depends on a clear delineation of the functions, powers and responsibilities of the bodies which conduct the initial assessment and any subsequent judicial review.
It is our experience in New South Wales … that such schemes need to have precise legislative authorisation and that their procedures, powers and responsibilities should be defined clearly, rather than being left to the panel itself to define. Panels require the resources to independently assess the facts relevant to a particular application, without undue reliance on the views of police and prosecutors.
The subsequent review should be conducted by a judicial officer or officers, also operating within a clearly defined framework which pays specific attention to the issues which are likely to arise in such a specialised inquiry and who are equipped or assisted with the expertise to properly assess relevant evidence.
45.52 The Victorian Bar supported the proposal but expressed concern with the suggested requirement that an applicant must provide prima facie evidence of a miscarriage of justice.
The Bar considers that such a test places ‘the bar’ too high. The reality is that the critical factor that may raise a prima facie case that there has been a miscarriage of justice is the subsequent DNA testing. However, this would not be available to prove miscarriage under the proposed scheme. The proposal in effect requires that there be independent evidence of miscarriage, other than such DNA testing. It is the Bar’s view that a measure of flexibility is required to ensure that testing is conducted where there is a possibility of wrongful conviction based on DNA evidence. This must necessarily be so in cases where, for example, the only real evidence against the Accused was the ‘strength’ of the DNA evidence, or in cases where there was no ability to conduct exculpatory testing at time of trial, but subsequent scientific advances have made this possible.
45.53 In consultations, both Dr Ian Freckelton and Dr Jeremy Gans also expressed the view that the requirement for prima facie evidence of a miscarriage should be removed. Dr Gans also noted a preference for a more general review body than one dealing with DNA evidence only.
45.54 Finally, the Commonwealth Attorney-General’s Department commented that the Sherman review is currently considering this issue; and the Joint Standing Committee of Attorneys-General and Australasian Police Ministers’ Council Working Group is expected to consider improvements to the Model Forensic Procedures Bill in 2003 once it has been in operation for more time and in more jurisdictions.
45.55 As discussed above, the Inquiry has heard concerns that there may be particular obstacles confronting a person seeking post-conviction review on the basis of DNA evidence. The Inquiry recognises these concerns but considers that the established processes for obtaining an appeal against conviction, or administrative or executive relief, are generally adequate. For example, where DNA evidence becomes available subsequent to conviction this evidence could, depending on the circum-stances, form the basis of an appeal based on the safety of the original verdict, an error of law (for example in the trial judge’s summing up), or the assertion that a miscarriage of justice has occurred. While the High Court could not consider such fresh evidence in an appeal against conviction, an appellant could apply to the Attorney-General or the Governor-General (or the Governor, in state jurisdictions) for further review.
45.56 The Inquiry considers that the principal issue for persons seeking post- conviction review on the basis of DNA evidence is the need to obtain access to the crime scene sample, and to DNA testing of the sample. Therefore, it would be desirable to establish a process to consider allegations of miscarriages of justice due to the use of, or failure to use, DNA evidence in a criminal prosecution.
45.57 In DP 66, the Inquiry proposed the establishment of an independent body by legislation, rather than by administrative means. The CCRC is an example of a legislative body, while the NSW Innocence Panel is an example of an administrative body. DP 66 noted that a legislative basis would ensure public confidence in its independence, and thus in the integrity of the criminal justice system as a whole. However, the submissions did not address this issue and the Inquiry does not hold a firm view on it.
45.58 The proposal in DP 66 required the applicant to provide ‘prima facie’ evidence that there had been a miscarriage of justice in order to access post-conviction review. This requirement was criticised as setting the bar too high for persons who allege that they did not commit the offence for which they were convicted, but do not yet have access to any evidence that might establish this. The Inquiry recognises these concerns, and instead recommends that applicants need only allege that DNA evidence may exist that calls his or her conviction into question.
45.59 As with the NSW Innocence Panel, the new process at federal level should involve obtaining access to the crime scene sample and arranging DNA testing against the applicant’s sample. The applicant could then rely on established avenues to lodge an appeal against conviction or, where these have been exhausted, administrative or executive avenues of review.
45.60 Consequently, the Inquiry recommends that the Commonwealth should establish a process to consider applications for post-conviction review from any person who alleges that DNA evidence may exist that calls his or her conviction into question.
45.61 Recommendation 40–3 provides that where applicable, the States and Territories should amend their forensic procedures legislation in a manner consistent with the recommendations made in this Report in relation to the Crimes Act. In this instance, States and Territories should consider implementing a similar process for post-conviction review based on DNA evidence.
Recommendation 45–2 The Commonwealth should establish a process to consider applications for post-conviction review from any person who alleges that DNA evidence may exist that calls his or her conviction into question.
 G Urbas, ‘DNA Evidence in Criminal Appeals and Post-Conviction Inquiries: Are New Forms of Review Required?’ (2002) 2 Macquarie Law Journal 141, 143.
 Ibid, 143.
 This ground is also referred to as an unsafe or unsatisfactory verdict.
 G Urbas, ‘DNA Evidence in Criminal Appeals and Post-Conviction Inquiries: Are New Forms of Review Required?’ (2002) 2 Macquarie Law Journal 141, 144.
 Ibid, 151–152.
 See Eastman v The Queen (2000) 203 CLR 1; Mickelberg v The Queen (1989) 167 CLR 259.
 G Urbas, ‘DNA Evidence in Criminal Appeals and Post-Conviction Inquiries: Are New Forms of Review Required?’ (2002) 2 Macquarie Law Journal 141, 159.
 These projects are based on the Innocence Project founded in 1992 by Professor Barry Scheck and Peter Neufeld at the Benjamin N Cardozo School of Law, Yeshiva University, New York.
 G Urbas, Submission G131, 19 March 2002.
 K Christian, ‘“And the DNA Shall Set You Free”: Issues Surrounding Postconviction DNA Evidence and the Pursuit of Innocence’ (2001) 62 Ohio State Law Journal 1195, 1200–1208. See also D De Foore, ‘Postconviction DNA Testing: A Cry for Justice from the Wrongly Convicted’ (2002) 13(2) Texas Technical Law Review 491, 511–512.
 K Christian, ‘“And the DNA Shall Set You Free”: Issues Surrounding Postconviction DNA Evidence and the Pursuit of Innocence’ (2001) 62 Ohio State Law Journal 1195, 1202–1203.
 The Bill was re-introduced into Congress in June 2002: Innocence Project Website, Benjamin N Cardozo School of Law, <www.innocenceproject.org/>, 28 February 2003. In addition, several other bills have been proposed as the state and federal level to address post-conviction testing.
 K Christian, ‘“And the DNA Shall Set You Free”: Issues Surrounding Postconviction DNA Evidence and the Pursuit of Innocence’ (2001) 62 Ohio State Law Journal 1195, 1229–1230. The Bill encourages state compliance by conditioning federal grant money on compliance with the Bill’s provisions. See also D De Foore, ‘Postconviction DNA Testing: A Cry for Justice from the Wrongly Convicted’ (2002) 13(2) Texas Technical Law Review 491, 516–519.
 The CCRC was established under the Criminal Appeal Act 1995 (UK): see Criminal Cases Review Commission, Annual Report: 2001-02 (2002), CCRC, London, 6.
 Ibid, 6.
 Ibid, 8.
 Ibid, 15.
 Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposal 38–1.
 Centre for Genetics Education, Submission G232, 18 December 2002; Human Genetics Society of Australasia, Submission G267, 20 December 2002; Association of Genetic Support of Australasia, Submission G284, 25 December 2002; Victorian Bar, Submission G261, 20 December 2002; Institute of Actuaries of Australia, Submission G224, 29 November 2002; Department of Human Services South Australia, Submission G288, 23 December 2002.
 Human Genetics Society of Australasia, Submission G267, 20 December 2002.
 Liberty Victoria, Consultation, Melbourne, 23 October 2002.
 South Australian Attorney-General’s Department, Consultation, Adelaide, 30 October 2002. The Law Institute of Victoria also considered that such a body was unnecessary: Law Institute of Victoria, Submission G275, 19 December 2002.
 Office of the Privacy Commissioner (NSW), Submission G257, 20 December 2002.
 Victorian Bar, Submission G261, 20 December 2002.
 I Freckelton and J Gans, Consultation, Melbourne, 21 October 2002.
 The Sherman review is the independent review into Pt 1D of the Crimes Act 1914 (Cth), which is chaired by Mr Tom Sherman. See Ch 39 for more details.
 Commonwealth Attorney-General’s Department, Submission G228, 12 December 2002.