The United Kingdom, Scotland, Norway and New Zealand all have introduced a Criminal Cases Review Commission (CCRC), and Canada recently announced that they were establishing a Miscarriages of Justice Commission. The first CCRC, in the United Kingdom, was precipitated by the high-profile miscarriages of justice of the Guildford Four (1974), the Birmingham Six (1975), the Maguire Seven (1976) and Judith Ward (1974). After a comprehensive review of criminal justice, it was recommended that the UK move away from a system in which a politician, the Home Secretary, determined if a miscarriage of justice had likely occurred. Fast forward 24 years, and NSW still has an almost identical antiquated system of review, one not equipped to correct miscarriages of justice. Kathleen Folbigg’s case is an example of this.  

What is a Criminal Cases Review Commission? 

A CCRC is an independent body tasked with reviewing cases for which there is a claim that the conviction or sentence is wrong in some way. It is independent of the courts, police and government. It has powers to compel government departments and organisations to produce documents for review, interview (or re-interview) witnesses and brief experts for opinions on matters arising in a case.

It undertakes a thorough investigation into a case and takes the burden away from the convicted person and from pro bono lawyers who, in rare cases, assist convicted individuals. It does not, however, have power to make determinations on the case itself (e.g. to remove a conviction or free a person from incarceration). It only has the power to investigate, and if appropriate, refer the case to an appeal court. Each commission has a different “test” which they apply to determine if a case should be referred to an appeal court for further examination. In the case of the UK CCRC, the test is if the evidence raises a “real possibility” that the appeal court will overturn the conviction.

Why do we need a Criminal Cases Review Commission?

Kathleen Folbigg’s case highlights the need for change in the post-conviction review system in NSW. Ms Folbigg was convicted in 2003 of the murder of three of her infant children and the manslaughter of her firstborn; the prosecution argued she smothered all four children. There has never been any evidence of smothering, and only natural causes were diagnosed at autopsy by forensic pathologists. She appealed a number of times, and each was unsuccessful. Ms Folbigg first engaged the post-conviction review system in 2015 when she petitioned the Governor for an inquiry into her convictions. Some three years later, Attorney-General Mark Speakman announced an inquiry would be held. From submission of the petition in 2015 to the outcome of the inquiry in July 2019, the process was opaque and adversarial. 

As a solicitor acting for Kathleen Folbigg in the 2019 Inquiry, I observed many issues with the way in which the process was conducted. I cover these in more depth in my article: A Critical Analysis of Post-Conviction Review in New South Wales, Australia (2021) 2:3 The Wrongful Conviction Law Review 305. Some of the key issues I noted were:

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1. After the announcement of the inquiry, it was not revealed why and how commissioner Reginald Blanch and counsel assisting Gail Furness were selected.
2. The commissioner’s broad discretion permitted him to restrict the scope of the inquiry, leading to important evidence not being heard.
3. The way in which the inquiry procedure transpired restricted the range and depth of possible evidence from experts.
4. Expert witnesses engaged by Kathleen Folbigg were treated differently to those engaged by the inquiry.
5. Unilateral redactions were made by the inquiry to important evidence that supported Kathleen Folbigg’s position.
6. The commissioner refused to consider Kathleen Folbigg’s diaries/journals in context or to allow expert evidence to assist his assessment of them.
7. The commissioner allowed ex-husband Craig Folbigg’s counsel to cross-examine Ms Folbigg on matters that should not have been permitted.
8. The commissioner declined to reopen hearings to consider significant evidence from the world-leading expert in the genetics of cardiac arrhythmias in relation to a lethal genetic mutation identified in Ms Folbigg and her two daughters.

Currently, the NSW Attorney-General is the effective decision-maker in post-conviction review procedures like the one reviewing Ms Folbigg’s case. The Attorney-General provides advice to the Governor on how to respond – ordering a review of a conviction or whether a pardon should be granted. The Attorney-General, however, also oversees the courts and is the responsible minister for the Office of the Director of Public Prosecutions. It does not bode well for a person seeking a review or a pardon if the decision-maker is charged with potentially overturning a conviction that one of her/his departments secured. The perception of conflict is enough to be a serious concern about the independence of our system; a similar concern led to the move away from the Home Secretary in the UK to a CCRC in 1997.

The culmination of these issues, and others I outlined in my article cited above, leads to an obvious conclusion: our system of post-conviction review is not independent, transparent or accountable. It is, therefore, not an appropriate system for NSW in the 21st century.

Opportunity for NSW

The NSW government has an opportunity to take leadership in Australia by implementing a body similar to a Criminal Cases Review Commission. Kathleen Folbigg’s case highlights the need for urgent reform. NSW has the benefit of learning from the decades of collective knowledge gained from countries that have adopted this pioneering model. 

The establishment of a CCRC would give the NSW public confidence that the criminal legal system not only takes the issues of miscarriages of justice seriously, but it also gives certainty to the way the system corrects its own mistakes. Without such reform, miscarriages of justice will go undiscovered and unremedied.

A CCRC could be a legacy from the tragedy Kathleen Folbigg has suffered, but also a legacy that all of us in NSW will benefit from.