Comparative Reflections on Miscarriages of Justice in Australia and Canada

Kent Roach [email protected]

Why comparative law and politics of wcs?

• • • Potential next wave of wrongful convictions scholarship Criticisms of traditional focus on case studies and broad causes (Leo and Gould, 2009) But not social sciences: more fine grained examination of law and politics including the debate over factual innocence (Naughton, 2010)

Comparative Approaches

• • • • • • Goudge Commission Research studies, 2008 Roberts and Weathered, 2009 Sangha, Roach and Moles, 2010 Special Issues CLQ and Cincinnati Law Review from 2011 Innocence Project conference Roach, 2013 on Canada-US Other examples?

Approaches to Comparative Law and Politics

• • • • Tushnet, 2008 Functional similarities such as causes Though Colvin, 2009 warnings of dangers of universalizing the American experience and applying it to Australia: see also Findlay, 2003 review of NSW DNA Expressive differences in legal systems

Why compare Australia and Canada?

• • • • • • Hirshl, 2014 most similar case principle Two countries many similarities Interesting constitutional differences Australia and state jurisdiction over criminal law Canada and its Charter or constitutional bill of rights Also different role of juries

Other Comparisons?

• • • • Hirshl, 2014 warns against “World Series” approach that only focuses on a few common law jurisdictions France, Italy and approaches to finality and trial de novo China’s recent recognition of wcs Countries where wcs not (yet) recognized such as South Africa, Singapore, India….

Legal and Political Acceptance of Reality of Wrongful Convictions

• • • • Resistance to idea that there has been wrongful convictions In Canada Marshall, 1983 blame Marshall and Milgaard, 92 until 97 DNA also maintain presumption of guilt after conviction quashed Similar to Mallard, 2003 WA and 2005 HC who is even detained after conviction quashed Why has Australia apparently forgotten its early experience with Splatt and Chamberlain?

Possible Explanations?

• • In Canada, public inquiries such as Marshall, Morin and Sophonow make it difficult to deny wcs FPT, 2004 senior prosecutors prepare 155 page report based on these 3 inquiries

Possible Explanations?

• • • • In Canada, some early cases including Morin, Milgaard, Simon Marshall in Quebec, Driskell and Unger in Manitoba, Parsons and Druken in Nfld use DNA to exonerate Australia’s experience more limited- Frank Button, Queensland NSW DNA experiences Jama and Fitzgerald

Different Approaches Causes

• • • Australia and role of legislative regulation of police interviews with suspects In Canada judges try to encourage taping of interviews but no federal legislation Instead case by case judicial regulation under the Charter

False Confessions

• • • • SCC recognizes as cause of wc in Oickle, 2000 Advanced recognition of literature but reluctance to exclude statement in that case Levinson, 2007 remedial deterrence thesis Singh, 2007 and Sinclair, 2010 allow prolonged and potentially unrecorded interviews with suspects over assertion of right to silence and without a lawyer being present

Mr. Big

• • • Hart, 2014 recognize that Mr. Big stings can cause wcs and new common law presumptions that they are inadmissible Excludes statements from Hart and prosecution dropped A few months later in Mack, 2014, the SCC admits statements in large part because of confirmatory evidence ignoring the lessons of Garrett, 2009 cited in Hart, 2014

Jailhouse Informers

• • • • Morin, Sophonow and Lamer inquiries issue strong warnings against their unreliability and last two recommend also complete ban SCC in Brooks, 2000 stress the need for warnings and not exclusion Affirmed in Hurley, 2010 Baltrusaitis v Ontario (Attorney General), 2011 ONSC 532 no Charter right against

Identification Procedures

• • • • National standards and expert witnesses proposed by Cory in Sophonow report Rejected and others including Colvin and Stuesser stress warnings sufficient Hill, 2007 allows police to be sued for a negligent line up where the Aboriginal suspect is the only person But no liability because no national standards

What difference has the Canadian Charter made?

• • • Stinchcombe, 1991 on disclosure and Burns and Rafay, 2001 on extradition to death penalty Major victories But many other cases demonstrate limits of case-by-case regulation Bradley, 1993 and the complex balance of due process and crime control

What Difference does the Charter Make?

• • • • Reject Charter right to retain material for testing in a Dr. Smith case in Chaudhary v. Ontario (Attorney General), 2012 ONSC 5023 Pan, 2003 and not inside jury box Mianzga, 2006, Kreiger, 2002 and Anderson, 2014 deference to prosecutorial decision making GDB, 2000 adopted deferential US Strickland standard on ineffective assistance of counsel

United States experience

• • • • Illustrates how what is left of Warren Court due process does not prevent the DNA and other exonerations Findlay, 2009 call for a reliability model Uneasy relationship between some aspects of innocence movement and due process Naughton, 2010 Fragile political alliances in innocence projects

• • •

What Difference will International law make in Australia?

Role in SA reforms, 2013 and intervention by Australia HRC But also decline to examine the Moles and Sangha complaint against appeal and petition system and weight given to finality International standards important given no constitutional bill of rights but perhaps greater margin of appreciation than in domestic dp law

Federal Difference in Australia

• • • • Allows more room in Canada for experimentation s.79 of the Crimes (Appeal and Review) Act 2001 NSW allows for judicially initially inquiries Hamer, 2014 criticizes use only in police corruption but potential in NSW and ACT (Eastman) and sound constitutional principle of making the judiciary responsible even if not implemented Hamer, 2014 40 applications 2008-2012

Federal Difference in Australia

• • • • SA debates and ultimately rejects CCRC but adopts second appeals on “fresh and compelling evidence” Test of whether courts in SA and perhaps eventually High Court will take restrictive and formalistic or substantive approach to s.353A and whether forensic science review comes back on the table Sangha, Moles and Economides, 2014 Tasmania next state to consider

Law and Politics of SA reforms

• • • • Resistance of Victims Commissioner to CCRC and Legislative Review Committee responds by matching double jeopardy limits for second prosecutions with similar “fresh and compelling” hurdles for second appeals Innocence claims a form of victims’ rights But also as in NSW also conflict with rights of crime victims Factor in US but not as strong in early recognition of wcs in Canada

Petitions

• • • • Fed Parl rejects CCRC and SCC rejects lurking doubt Canada 2002 reforms to petition to attempt to regularize political process Some successful judicial review of refusal to grant petition: Ross v. Canada (Justice), 2014 FC 338 Martens v. Commonwealth (2009) 174 FCR 114 67 as alternative to Von Enimen “black hole” of no judicial review

Avoidance of Petitions

• • • End runs in Canada around petition, Sherrat Robinson, 2009 and White, 2010 with appeals to SCC Irving v. The Queen [1997] HCA Trans 404 and fudging of Mickelberg no fresh evidence as outlined in Sangha and Moles, 2012 bail pending petition cases such as Unger 2005 MBQB 238, Phillion, Driskell and why bail pending appeals not used more in Australia

Indigenous People and other Disadvantaged Groups

• • • • • In Canada only the Marshall commission confronts But Neepose, Mullins-Johnson, Hill and Brant In Australia, Angel, Condren, Kina, Narkle (Dioso-Villa, 2012 in Albany LR) Jama in Australia, Morin in Canada Relate wc to a broader justice agenda not limited to those who can prove factual innocence

Conclusion

• • • Paradox Greater acceptance of reality of wcs in Canada perhaps because of commissions and dna Australia starting to engage in more legislative reform of post conviction issues but continued legal and political struggles