CrimNet

07 June 2023

Following Kathleen Folbigg’s release and pardon after serving 20 years' imprisonment for the homicide of her four infant children, the Sydney Institute of Criminology is calling for Australian governments to set up a Criminal Cases Review Commission (CCRC).

The call for this key piece of criminal justice infrastructure is not new. The Australian Law Council expressed support for a Federal CCRC in 2012. Commentators have called for an Australian CCRC on many occasions. Last year former High Court Justice Michael Kirby said ‘such a commission is needed’. 

The institute hopes to get the support of leading legal commentators and institutions for this call. 

We plan to write to Attorneys General and other political leaders. We will include a list of the people and institutions that have indicated their support by that stage, but will continue to add to a register of supporters on the Sydney Institute of Criminology website.

Read the letter below: 

It is time Australia established a Criminal Cases Review Commission (CCRC)

On 5 June 2023, on the basis of the preliminary findings of a second commission of inquiry in four years, Kathleen Folbigg was pardoned, having served 20 years for the murder of three of her infant children and the manslaughter of a fourth child. At trial, the prosecution had relied on the statistical improbability of so many of her children dying accidentally. However, at the second inquiry, this reasoning was called into question by fresh scientific evidence pointing to possible medical causes of the deaths. Commissioner Tom Bathurst indicated that, in light of this fresh evidence, “the coincidence and tendency evidence which was central to the Crown case falls away”. At trial, and in the first inquiry, the prosecution had argued that Folbigg’s diary entries relating to the deaths of her children could be interpreted as admissions of guilt. But fresh psychological evidence at the inquiry “suggests they were the writings of a grieving and possibly depressed mother, blaming herself for the death of each child”. Whereas at trial Folbigg had been presented by the prosecution as “Australia’s worst female serial killer”, Bathurst indicated he was “unable to accept […] the proposition that Ms Folbigg was anything but a caring mother for her children”.

The Folbigg case is yet another demonstration that Australia needs a Criminal Cases Review Commission – preferably a single Federal body covering all jurisdictions, but failing that, one for each jurisdiction. The criminal justice system carries an in-built risk of wrongful conviction. Ad hoc commissions of inquiry, like the Folbigg inquiry, are inefficient and expensive. The system needs reform. Australia should follow comparable jurisdictions like England and Wales, Scotland, New Zealand, and Canada, and establish a CCRC – a statutory body working at arm’s length with the powers to investigate claims of wrongful conviction and, where it appears appropriate, refer cases back to the Court of Criminal Appeal.

The belated identification of the Folbigg miscarriages of justice is not unusual. In the last decade, Jason Roberts in Victoria was acquitted in a retrial after serving two decades in prison for the murder of two police officers; Scott Austicin WA was acquitted at his retrial after serving 13 years for the murder of his partner who was pregnant with his child;David Eastman in the ACT was acquitted in a retrial after serving 20 years for the murder of Assistant AFP Commissioner Colin Winchester; and Henry Keogh in SA was freed following an exceptional second appeal, having served 20 years for the murder of his fiancé. The re-evaluation of guilt in these cases was prompted by fresh forensic evidence and/or the revelation of flaws in the original proceedings or investigation.

It is a primary goal of the criminal justice system to avoid the searing injustice of a wrongful conviction. This goal is pursued through principles such as the presumption of innocence and the requirement of proof beyond reasonable doubt. But absolute certainty in guilt is not feasible and is not required. A risk of error is run and occasional errors should be expected. They will not necessarily be corrected on appeal, where the defendant is no longer presumed innocent and weight is given to the finality principle.

Following an unsuccessful appeal the finality principle bites still harder and it becomes significantly more difficult for the wrongly convicted defendant to achieve justice. There is no right to bring a second appeal, and the imprisoned defendant will face an almost insurmountable challenge in persuading the government (or, in some jurisdictions, court) to order an inquiry or an exceptional subsequent appeal. In order to achieve justice, defendants like Folbigg, Roberts, Austic, Keogh and Eastman require remarkable resilience and supporters on the outside.

The criminal justice system needs to do more to address the statistical certainty of the occasional wrongful conviction. Overcoming this searing injustice should not demand superhuman reserves of fortitude or the chance arrival of a champion. The systemic risk of wrongful conviction demands a systemic solution. Other developed nations have recognised that CCRCs are well-suited to this task. A CCRC has the powers and resources to investigate defendants’ claims to have been wrongfully convicted. Claims that are found to have substance can be referred back to the court of criminal appeal. Standing CCRCs have been shown to bring a cost-effective improvement to the accuracy of criminal justice systems. An inquiry into the Eastman conviction, preceding the retrial and acquittal, was estimated to cost well over $10M and it appears likely that the Folbigg inquiries were similarly costly. With funds of this magnitude, a CCRC would be able to investigate a considerable number of potential wrongful convictions.

Establishing a CCRC would reduce the finality of the jury verdict. The extent of the change can be carefully calibrated through the design of the CCRC. The CCRC is a gatekeeper, and legislation can determine how widely the gate is opened.

The call for this key piece of criminal justice infrastructure isn’t new. The Australian Law Council expressed support for a federal CCRC in 2012. Commentators have called for an Australian CCRC on many occasions. Last year former High Court Justice, Michael Kirby, reiterated his view that “such a commission is needed”. The Sydney Institute of Criminology, with the support of the leading criminal justice commentators whose names appear below, call upon Australian Governments to implement this reform. Cases like Folbigg, Roberts, Austic, Eastman and Keogh demonstrate that the reform is long overdue.

Yours sincerely,

Professor David Hamer, david.hamer@sydney.edu.au (corresponding author)

Dr Andrew Dyer, Director, Sydney Institute of Criminology

Dr Carolyn McKay, Director, Sydney Institute of Criminology

List of signatories: 

Professor Thalia Anthony (University of Technology Sydney Law Faculty)  

Dr Natalia Antolak-Saper (Monash University Law Faculty)  

Australian Lawyers for Human Rights (Kerry Weste, President)  

Professor Katherine Biber (University of Technology Sydney Law Faculty)  

Professor Simon Bronitt (Dean, Sydney University Law School) 

Professor Jonathan Clough (Monash University Law Faculty) 

Professor Penny Crofts (University of Sydney Law School) 

Professor Thomas Crofts (University of Sydney Law School) 

Professor Heather Douglas (University of Melbourne Law School) 

Professor Jeremy Gans (University of Melbourne Law School) 

George Giudice, Solicitor (George Giudice Law Chambers) 

Professor Gary Edmond (UNSW Law Faculty) 

The Honourable Michael Kirby AC CMG 

Alastair Lawrie (Public Interest Advocacy Centre) 

Professor Arlie Loughnan (Dean of Research, University of Sydney Law School) 

Dr Tanya Mitchell (University of Sydney Law School) 

Dr Allan McCay (University of Sydney Law School)  

Dr Ben Mostyn, Academic Fellow (University of Sydney Law School) 

Mr Toby Nisbet (Edith Cowan University School of Business and Law) 

Stephen Odgers SC (Forbes Chambers) 

Professor Simon Rice, OAM, (University of Sydney Law School) 

Professor Andy Roberts (University of Melbourne Law School) 

Associate Professor Mehera San Roque (UNSW Law Faculty) 

Dr Rebecca Scott-Bray (University of Sydney Faculty of Arts and Social Sciences) 

Associate Professor Stella Tarrant (UWA Law School) 

Dr Celine van Golde (University of Sydney School of Psychology) 

Members of the Institute have commented in the media about the desirability of a CCRC

ABC Radio Canberra and ABC News interviewed Professor David Hamer. 

Professor David Hamer and Dr Andrew Dyer published an article in The Conversation. 

SBS News and 2MCE interviewed Professor Arlie Loughnan.

The Bunya Project: Protocol for a Mixed-Methods Approach to Developing a Culturally Informed Curriculum

IC Member, Professor Megan Williams co-authored a research project on The Bunya Project.

Indigenous peoples live across all continents, representing approximately 90 nations and cultures and 476 million people. There have long been clear statements about the rights of Indigenous peoples to self-determine services, policies, and resource allocations that affect our lives, particularly via the United Nations Declaration on the Rights of Indigenous Peoples. An area for urgent improvement is curricula that train the predominantly non-Indigenous health workforce about their responsibilities and that offer practical strategies to use when engaging with Indigenous peoples and issues. See here.

Advisory Committee member, Don Weatherburn is giving a session on Drugs, Alcohol and Mental Health at the Applied Research in Crime and Justice Conference, 14-15 August 2023. Register here  

Deputy Director, Dr. Allan McCay was a part of the judging panel for "Women in AI" Awards 2023. WAI Awards 2023 APAC will be held on Friday 16 June 2023 at the Art Gallery of New South Wales. For more details, see here.

Dr Justin Ellis is a criminologist studying the impact of digital media technology on crime and criminalisation and how it affects police accountability in cases of police excessive force.

He is a member of the Sydney Institute of Criminology and the editor of Current Issues of Criminal Justice.

Dr Ellis is particularly interested in how the widespread availability of digital video and its direct upload to social media has allowed more public exposure of police excessive force. His PhD involved an in-depth case study of the police excessive force used against Sydney teenager Jamie Jackson at the 2013 Sydney Gay and Lesbian Mardi Gras parade captured on video (trigger warning – violent content).

Representation, Resistance and the Digiqueer: Fighting for Recognition in Technocratic times

He published a book providing an overview of the contradictions inherent in LGBTQ+ personal and political expression through digital platforms and surveillance technologies such as platform biometrics used to identify people through facial and gait recognition software. The book will resonate with scholars and students in criminology and related disciplines, media practitioners, and broader interested audiences. These readers may seek to understand why, despite a range of protections for LGBTQ+ peoples across many jurisdictions, LGBTQ+ individuals and communities continue to face challenges of renewed complexity from anti-LGBTQ+ bigots and hate groups, including representational harms that denigrate, misrecognize, erase or omit diverse sexual orientation and gender identity.

Drawing on debate over gender, procreation, religion, nationalism and tech-regulation, the book considers the effects of networked digital organising and surveillance technologies on LGBTQ+ personal and political agency. In doing so, Dr Ellis brings an interdisciplinary ‘digiqueer’ perspective to construction of LGBTQ+ identity drawing on case law, parliamentary debates, social and mainstream media and LGBTQ+ tech advocacy. See here. 

The 2023/24 Criminal Law CPD Series, presented by the Sydney Institute of Criminology, is an innovative educational program made up of 8 recorded webinars.

Our series covers a wide range of criminal law topics, including criminal procedure, evidence law, and criminal advocacy. Led by experienced legal professionals, our webinars are designed to help you stay up to date with the latest developments in criminal law and earn your mandatory CPD points.

A new webinar will be released each month from April to November and will include a quiz to test your comprehension of the material being discussed.  

Register now for the full series or individual webinars and enjoy the flexibility of watching at your own pace from any location at any time.  

Information for lawyers and barristers
If this educational activity is relevant to your professional development and practice of the law, then you should claim 1.5 MCLE/CPD points per seminar attended.

Practitioners are advised to check with the CPD governing body in their jurisdiction for the most accurate and up-to-date information. Find out about interstate accreditation.

Cost: Full series (8 x webinars) = $300 
Individual webinar(s) = $50

Non-consensual sexual offence law reform in Western Australia

Substantive Law 

Dr Andrew Dyer -  Available now

The Attorney-General of Western Australia has asked that State’s Law Reform Commission to review Western Australia’s sexual offence laws. In December 2022, the Commission published a Discussion Paper that deals with the law relating to sexual consent and the operation of honest and reasonable mistake of fact in non-consensual sexual offence proceedings. This seminar will consider the various reform options. 

Vulnerable witness advocacy

Practice Management and Business Skills, Ethics and professional responsibility

Philip Hogan -  Available now

This seminar will discuss the definition of a vulnerable witness in the Criminal Procedure Act 1986 (NSW) and the provisions in the Act that allow for the use of pre-recorded evidence and provide for other alternative means of giving evidence. The seminar will particularly consider the way a complainant’s evidence is adduced in the Child Sexual Assault Program operating in some NSW courts. There will also be some discussion of Evidence Act 1995 (NSW) provisions that may be relevant to the evidence of a vulnerable witness. Finally, the seminar will cover relevant provisions of the Equality before the Law Bench Book and some findings of the Royal Commission into Institutional Responses to Child Sexual Abuse. 

Digital vulnerability: Vulnerable individuals and remote access technologies in justice

Ethics and professional responsibility. Professional skills. Practice Management. 

Dr Carolyn McKay - Available 29 June 2023 

This seminar will focus on the use of remote access technologies, such as audiovisual links, when working with vulnerable individuals in the justice system, and the developing concept of ‘digital vulnerability’. The seminar will draw on Dr McKay’s current Australian Research Council (‘ARC’) funded research and examine the multiple layers of vulnerability that individuals may experience while involved in legal matters. It will present preliminary findings from initial fieldwork interviews with lawyers and judicial officers that reveal critical perspectives on the impacts of digitalisation on vulnerable people in the justice system. While the research project and findings centre on the criminal justice system, many of the issues are equally relevant to legal practitioners working with vulnerable people in civil matters. 

Should Deceptive Sex Always Be Rape? Dr Andrew Dyer - Substantive Law

The Role of the Crown Prosecutor in NSW Mr Brett Hatfield Practice - Management and Business Skills, Ethics and professional responsibility

The Reliability and Credibility of Eyewitnesses Associate Professor Helen Paterson - Substantive Law

Ethical Practice for Junior Criminal Law Barristers Ms Talitha Hennessy - Ethics and professional responsibility

Myths, Misconceptions and Mixed Messages: An Early Look at the New Tendency and Coincidence Evidence Provisions Professor David Hamer - Substantive Law

Advocacy in the NSW Court of Criminal Appeal Mr John Stratton SC - Professional Skills

The Work of the Mental Health Review Tribunal Judge Paul Lakatos SC - Professional Skills

Current Issues in Criminal Justice (CICJ) provides detailed analysis of national and international issues by a range of outstanding contributors. It includes contemporary comments, with discussion at the cutting edge of the crime and justice debate, as well as reviews of recently released books.

CICJ accepts submissions on a rolling basis.

Editor: Dr Justin Ellis, member of the Sydney Institute of Criminology

You can access current and previous issues of Current Issues in Criminal Justice here.

If you have a book suitable for review by CICJ, please email the books editor, Celine Van Golde

celine.vangolde@sydney.edu.au

Webinar: Using the Fundamental Measures for Juvenile Justice to Conduct a Juvenile Justice Data Capacity Assessment and Replicate Data Improvements

This workshop will introduce participants to NCJFCJ-NCJJ’s Fundamental Measures for Juvenile Justice (FMJJ). Wednesday 8th of June organised by The National Council of Juvenile and Family Court Judges. Register 

Conference: ‘Emerging Challenges in the management of sexual assault trials.’

Monash University's Transnational Criminal Law Group in conjunction with the Victorian Juries Commissioner's Office and the Court of the Future Network is organising a one-day conference scheduled on 9th June 2023. Register. 

Seminar: ‘Cruel Care: A History of Children at our Borders’ by Jordana Silverstein

Friday, 16 June 2023 at 12:00 PM

Australia has long grappled with how to treat refugees, particularly children, who come to our country. Cruel Care: A History of Children at our Borders asks why Australia pursues such unforgiving immigration policies, and why successive Australian governments say that the cruel acts they perpetrate are a form of care. This hybrid seminar co-hosted by the UNSW Centre for Crime, Law and Justice (CCLJ), the Kaldor Centre for International Refugee Law, and the Forced Migration Research Network will take place in person at the UNSW Law & Justice Building (Staff Common Room, Level 2) and online via Zoom. Register here.

Aboriginal Access Worker - continuing part- time

Kingsford Legal Centre (KLC) is a community legal centre providing free legal advice and assistance to people who live, work or study in the Randwick and Botany Bay local government areas in NSW. The Aboriginal Access Worker will assist and support Aboriginal and Torres Strait Islander clients of the Kingsford Legal Centre. They will work with the staff of the Centre to develop strategies which are culturally sensitive for the Aboriginal clients and promote external links between the Centre and our Aboriginal community. This position may require attendance at hospital sites, and therefore has vaccination requirements. Find more details, contact: d.wasley@unsw.edu.au

Call for Abstracts: Algorithmic Justice Symposium

The University of Newcastle School of Law and Justice, Centre for Law and Social Justice 

Submissions Close: 9 June 2023

The University of Newcastle School of Law and Justice, Centre for Law and Social Justice, invites expressions of interest from academics, lawyers, advocates and other interested persons to participate in its 2023 Algorithmic Justice Symposium. The Symposium will be held on Friday 14 July 2023 from 9.30am – 5.00pm at the University of Newcastle’s Sydney Campus at Martin Place in Sydney (55 Elizabeth Street). It is a hybrid (online and in person) event, and international submissions are welcomed. See here

Call for Papers: Law and Society Association of Australia and New Zealand

Deadline for Submissions: 25 August 2023 

The Law and Society Association of Australia and New Zealand (LSAANZ) is inviting socio-legal scholars and others working at the intersections of law and society to submit panel and abstract proposals for its 2023 in-person conference: Voice, Resistance, and Repair: Law and living together. Find more details here.

Public Lecture: Reparative Encounters with Law: Navigating Emotions in LGBTIQ Rights and Reforms

Associate Professor Senthorun Raj, Manchester Metropolitan University

Date: Wednesday 19th July at 6.15pm-7.30pm, University of Melbourne Parkville Campus & Zoom 

Law reform debates about the rights of LGBTIQ people produce and crystallise emotions related to state regulation of sex, gender, and sexuality. In countries such as Australia, the United Kingdom, and the United States, emotions have been central to repairing the stigma, discrimination, and inequality faced by LGBTIQ people. See here for details. 

Manager, Emergency responses: NSW Department of education 

Applications close by 12 June 2023

Are you ready to make a difference in times of emergency? Do you thrive in high-pressure environments and possess strong leadership skills?

In this role, you will be responsible for coordinating and delivering support services, to schools alongside emergency services organisations for the response to major incidents, emergencies, and disasters impacting NSW schools and workplaces across the state. Apply here.

Changes to the Law: Citizenship and New Zealanders, Legal Aid NSW

Wednesday, June 14 | 10am - 11am
Changes to the law have been announced affecting New Zealanders and their eligibility for Australian citizenship.

Join this webinar to hear about who’s impacted by the changes, when they come into effect, and what your clients can do now to get ready. Register here.

Call for Submission: Criminology Research Grants 2023; Australian Institute of Criminology 

Applications close by 11 July 2023 

The Australian Institute of Criminology encourages applications from organisations or collaborative teams with a demonstrated capacity to deliver high quality criminological research outcomes. 

Applicants are required to submit a detailed proposal for a criminological research project that will make a valuable contribution to knowledge and address policy-relevant needs in the area of crime and criminal justice.

Projects to be supported through this Approach to Market are criminological research that is relevant to the public policy of the Commonwealth, the states, the Australian Capital Territory and the Northern Territory and activities related to that research (including, for example, the publication of that research). 

For more details, see here. 

BBC, 29 May 2023

In the last five years in the UK, more than 100 children have died from knife wounds. But violence isn't inevitable and evidence shows that we need more mentoring, therapy, family support and police in the areas where violence is high. So why don't we do what works? Jon Yates from the Youth Endowment Fund looks at the schemes that have successfully reduced knife crime. He investigates why the lessons they've taught us haven’t been scaled up. And why we’re spending money on other things like knife awareness campaigns without any evidence they work.  

ABC News, 31 May 2023

Professor Simon Rice, Faculty of Law, University of Sydney 

Legal experts say changes to South Australian laws, that could see protesters fined up to 50 thousand dollars or jailed for three months, could be challenged in the High Court. 

After an all-night debate spanning 14 hours, South Australia's Upper House has passed the laws in an effort to stop increasingly disruptive protesters from obstructing public places. 

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