Trust and Obey


The Law Rules!

Democracy is no easy form of government.  Few nations have been able to sustain it.  For it requires that we take the chances of freedom; that the liberating play of reason be brought to bear on events filled with passion; that dissent be allowed to make its appeal for acceptance; that men chance error in their search for the truth.

Robert F Kennedy

Because an appeal makes logical sense is no guarantee that it will work.

- William Bernbach

Rescued by Aliens?

So you're in jail for murder.  This is unfortunate, because you're innocent.  Someone you loathed died in mysterious circumstances, a convincing but mistaken witness has fingered you and your inept lawyer bungled your defence.  You lie on your hard prison mattress furious at your lawyer, clinging to one hope: the Court of Appeal.

You may be in for a shock.

For a start, you've got only 10 days to file your appeal (this time limit is not rigidly enforced, but you don't know that.)  You need to prepare your grounds of appeal - that is, work out what was legally wrong with your trial.  Was evidence wrongly admitted?  Was the judge's summing up correct?  What does the case law say?

Often the grounds of appeal end up being vague and perfunctory , even if a lawyer helps prepare them.  Meanwhile, you apply to the Court of Appeal's registrar for legal aid to cover the costs of your appeal.  Three judges will independently look over the trial file, consider your hasty and sketchy grounds of appeal, and decide whether to recommend legal aid.  Murder is a serious thing, and they'll look hard for arguments that might succeed.  But they're busy people and it's not their job to be your lawyer.  More than half the time (and sometimes even in murder appeals), they find that a grant of legal aid is not in the interests of justice.  You can ask another judge to reconsider the question of legal aid, but your prospects are slim.

Without legal aid, your chances of winning are close to zilch.  You're unlikely to navigate the arcane shoals of criminal appeal law yourself or find someone willing to help you.  Effectively, your appeal is over.

You could write to the court from prison and ask to be allowed to attend your appeal, which arguably is your right under the Crimes Act.  But you'll be turned down.  You'll be told the date when your appeal will be "determined" and invited to make written submissions.  But you won't be sent the notes from the trial to help you prepare your case, even though the Court of Appeal's rules require it.

Anyone who went along to watch the "determination" of your appeal wouldn't see any argument.  They wouldn't see anyone from the Solicitor-General's office, though the law says they should attend every appeal.  All they'd see is a decision being announced, a decision that's already been made - by exactly the same three judges who turned down your legal aid application.

Under the Bill of Rights Act, you're entitled to an appeal against your conviction.  Can this short-circuit charade really count?  Lawyers Tony Ellis and Antony Shaw don't think so.  They've effectively sued the Court of Appeal judges and the Government for breaking the law and denying appellants a fair trial.  It's a case that casts doubt on the propriety of thousands of convictions over the past 70 years.  In 1998, Ellis and Shaw convinced one Court of Appeal judge that the court's legal aid procedures were unlawful.  The other two judges disagreed and the case was lost, but similar issues are due to be considered by the Privy Council next year.

Is the Court of Appeal flouting the law?  The Crown reckons it's implicit in the Crimes Act that there's a two-track appeal system.  If you dip out on legal aid, the judges are allowed to decide your case without a hearing, the Crown argues.  It's been done that way for decades, and no one's ever kicked up a stink before.

It may be unfortunate that some people don't get legal aid, says the Crown, but the law says legal aid is only granted when the interests of justice require it.  Shouldn't appellants be grateful that three senior judges look over their file?  How likely is it really that anyone's suffered a miscarriage of justice?

I'm not convinced.  I don't see anything in the law that authorises two types of appeal, which smacks of one law for the rich and another for the poor.  Each year, about half a dozen appellants who are denied legal aid somehow manage to win their appeals.  That shows the judges' consideration of the files isn't foolproof.

What about all the others who are turned down?  Many don't bother to make submissions.  Almost certainly, there are some people in jail who shouldn't be there.

The Government seems to have admitted the validity of some of Ellis and Shaw's arguments.  The Court of Appeal has changed some of its procedures.  Legal aid will soon be granted by a separate agency.  The Ministry of Justice has scrambled to introduce a Bill to "clarify" the law and authorise appeals without hearings in some cases.

The Bill would also magically erase any past procedural mistakes, except those involved in the cases currently before the courts.  That's right: even if Ellis and Shaw establish that the appeals process was unlawful, and win proper hearings for their clients (which, admittedly, most of them will probably lose), everyone else similarly affected will have had their rights to challenge the same flawed process retrospectively expunged.

Yes, those people can try to appeal to the Privy Council, or ask the Governor-General to exercise the prerogative of mercy.  They may also be rescued by aliens.

And yes, the new law would head off a potential log jam in the Court of Appeal, saving trial costs, delays, and further angst for victims.  But it's an ugly look for the justice system.

Steven Price, lawyer, journalist and broadcaster, was also a Fulbright Scholar from 1995-98.  Feedback to

Source: The Evening Post Tuesday 21 November 2000

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