Closing remarks by Terry O’Gorman


On Monday, 1 August 2022 an important seminar was held in the Premier’s Hall at Parliament House to commemorate the abolition of the death penalty in Queensland in 1922. 1 August 2022 was the centenary anniversary of that historic event. Robertson O’Gorman Solicitors proudly sponsored the seminar. I was invited to present some closing remarks. These are my remarks as they concern the opening and key note address by the Hon. Michael Kirby AC CMG, a retired Justice of the High Court of Australia.


Michael Kirby, in looking at the history of the High Court upholding a number of death sentences, looked to the future in terms of addressing miscarriages of justice today even though the death penalty in Queensland has now been abolished for over a century.


Mr Kirby examined the long established law that has effectively been in existence since the Criminal Code Act 1899 (Qld) came into effect in 1899 namely, that a person convicted in a Judge and jury trial has only one opportunity to appeal to the Queensland Court of Appeal.


Mr Kirby noted that this rule had thrown up a number of cases where apparent serious miscarriages of justice were unable to be reversed by the Court of Appeal. The apparent and historical justification for the rule is the requirement that there be a finality to criminal litigation. However, times have changed and advances in medical and forensic technology can cast serious doubt on convictions. So too can other forms of evidence uncovered after a conviction.


Mr Kirby noted that Tasmania, South Australia, Victoria and Western Australia have in the last number of years abolished this rule.  In those States, if an accused person can persuade a single Supreme Court Judge that evidence has emerged that is fresh and compelling a single Supreme Court Judge can then refer the matter to the Court of Appeal for a ‘second’ appeal hearing.


These States have found it necessary to introduce such a rule because the Pardon process in Australia is unwieldy and effectively requires the agreement of the Attorney-General to refer a matter back to the Court of Appeal if fresh evidence emerges.


Experience shows that in Queensland cases are very rarely referred back to the Court of Appeal by way of the Pardon process as the Attorney-General takes advice from the Director of Public Prosecutions (DPP) in deciding whether to refer a matter to the Court of Appeal and unsurprisingly, the DPP as the prosecuting body rarely, if ever, advise the Attorney-General to refer a matter back to the Court of Appeal.


With four of the eight criminal jurisdictions in Australia having changed the law to allow a person with fresh and compelling new evidence to be able to seek their case be further considered by the Court of Appeal, it is time for a similar reform to occur in Queensland.


Justice Kirby also highlighted the related importance of a Criminal Cases Review Commission being established in Australia.  He pointed out that a similar body exists in the United Kingdom, Scotland, Ireland, New Zealand and Canada.


The first Criminal Cases Review Commission was set up over 20 years ago in the United Kingdom following the Birmingham 6 awful miscarriage of justice where the various accused were ‘fitted up’ by the investigating police for the terrible bombing of a Birmingham pub during the so-called Irish ‘Troubles’.


The UK Criminal Cases Review Commission has had a reasonably successful track record in referring miscarriages of justice back to the Court of Appeal via a process where an accused person can approach the Commission and if that person’s case is taken on by the Commission, in-house investigators carry out enquiries. If a sufficiently strong case is established, they then refer the matter back to the UK equivalent of Queensland’s Court of Appeal for a further appeal and review of the conviction.


A Criminal Cases Review Commission is well overdue in Australia and is needed in conjunction with the law changes in those States which now permit the ‘leave’ of a single Supreme Court Judge to refer a second Appeal/Review to the Court of Appeal.


Most accused who can mount a case that they are wrongly convicted do not have the resources to engage lawyers and experts to prepare a case for referral back to the Court of Appeal. Access to justice is a Government responsibility. A Criminal Cases Review Commission should be established in Australia mirroring national bodies such as the Australian Federal Police and the Australian Criminal Intelligence Commission.


There is also a strong argument for a Criminal Cases Review Commission to be established as a Federal body. This is because the cost of establishing a separate State based Criminal Cases Review Commission would be prohibitive and duplicitous. Furthermore, having investigators from a national body, with no ties to Queensland Police or the Queensland criminal justice system, would give the necessary ‘distance’ and impartiality that is necessary for a reinvestigation of a credible miscarriage of justice prior to referring it back to the Court of Appeal in those States that have the machinery for a second appeal.


Mr Kirby, in his address, made it clear that the lessons to be learnt from miscarriages of justice in the death penalty era are just as applicable now as they were then namely, that miscarriages of justice occur and if there is no machinery to address these miscarriages it can hardly be said that Australia has a properly functioning and fair criminal justice system.