A review system for criminal cases is a crucial protection worth consideration

Innocent until proven guilty. It is one of the bedrock principles of our legal system. A powerful ideal that ensures that what is presented as evidence by prosecutors at a trial is the determining factor in a judge or jury deciding the verdict of an accused person.

Once guilt is established, though, another legal principle comes into play – the finality principle. This says, in essence, that once a case is run and done, we can all forget about it. Justice has been served. Case closed.

Supporters of Robert Farquharson back creating an independent body that reviews criminal cases.Credit: Marija Ercegovac

These are fundamental tenets of our judicial system, but in practice, they can also be its Achilles heel. Over time, doubts over evidence put before a court can raise questions over the validity of a verdict. And that is why procedural safeguards are built into the system.

The appeal system offers those who are found guilty the opportunity to put their case to another court as to why there has been a miscarriage of justice. In Victoria, that means convicted criminals can go before the County Court (to appeal against magistrates’ decisions), the Court of Appeal and, ultimately, the High Court. And in 2019, then-Victorian attorney-general Jill Hennessy introduced a second right of appeal in exceptional circumstances where, as she explained, “fresh and compelling evidence of a potential substantial miscarriage of justice exists”.

These are welcome reforms. But even this system has its limitations. The onus is on the convicted person to instigate and fund such an appeal process. For someone sitting in prison, that is no easy task, and often involves a lawyer developing a passion for a case and acting pro bono.

That is why several countries have introduced an independent government-funded review system that supports convicted people seeking a review of their case. Known as the Criminal Cases Review Commission in Britain and New Zealand, these bodies can examine cases where there are developments in scientific or other evidence, then refer them, with advice, back to the courts or the government for review.

Calls for such a body to be established in Australia have been backed by those who have examined evidence in the case involving Robert Farquharson. He is serving a 33-year prison sentence in Victoria’s Barwon Prison after being twice found guilty of murdering his three children by driving them into a dam on Father’s Day 2005.

Farquharson won an appeal against his first conviction in 2007 because police had not disclosed relevant information about a key witness against him. The court ordered a retrial, but he was found guilty again by a jury in 2010. He lost his second appeal and then was denied the chance to plead his case to the High Court in 2013. Lawyers for Farquharson now hope to question his conviction later this year using the state’s “second right of appeal” law introduced in 2019.

Concerns about the quality of the evidence against Farquharson have been painstakingly investigated by The Age’s senior reporter, Michael Bachelard, and his colleagues, Ruby Schwartz and Nick McKenzie.

While the merits and final outcome of a possible new appeal by Farquharson are for the courts to decide, there is no doubt The Age’s investigation has highlighted how difficult it is to find and call out potential miscarriages of justice in Victoria, and puts a strong case for the establishment of an independent body like the Criminal Cases Review Commission in this jurisdiction.

As The Age reported this week, Australian Academy of Science chief executive Anna-Maria Arabia said, speaking generally, courts are susceptible to “junk science” being admitted and that cases such as Farquharson’s demonstrated the need for significant legal reforms to try to prevent the use of unreliable evidence.

What is at stake is much more than the freedom or otherwise of Robert Farquharson. Because another long-established legal principle is that locking up one innocent person is more catastrophic than letting 10 guilty ones go free. That’s not just a maxim. It’s a crucial protection for us all from accident, misadventure or misfortune resulting in a prison term for something we did not do. Any protection we can build in to try to prevent that happening is therefore surely worth consideration.

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