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By Neil Lofgren*
In June 1993 the Queensland Government established an independent Aboriginal Justice Advisory Committee (AJAC) to provide the Government with informed advice on the views of Aboriginal and Torres Strait Islander people on criminal justice matters and on the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody concerning the criminal justice system.
AJAC recently considered issues raised in a Criminal Justice Commission (CJC) investigation into the complaints of Kelvin Ronald Condren and others. Questions have been raised about the adequacy of the investigation and the recommendations flowing from it. The CJC Report was published in November 1992 and no action has been taken since then to implement its recommendations.
On 21 September 1993 a claim of compensation for Mr Condren s seven years wrongful imprisonment was submitted to the Acting Attorney-General at the time, the Hon. Paul Braddy MLA, Minister for Police and Corrective Services. A spokesperson for Mr Braddy said that the claim was welcome and an urgent report would be completed within the month.[1] At this stage no compensation has been paid to Mr Condren or his family.
On 1 October 1983, an Aboriginal woman was found unconscious and seriously injured in the car park at the rear of the Mt Isa Hotel. She died later that evening at the Mt Isa Hospital. That same day, police interviewed Kelvin Ronald Condren, who later participated in a Record of Interview in the presence of a Justice of the Peace. As a result of alleged admissions during this interview, Mr Condren was charged with the murder.
Mr Condren was convicted of the murder on 15 August 1984. In Condren (1987) 28 ACR 261 the Queensland Court of Criminal Appeal refused to admit fresh evidence, however in 1989, the High Court was strongly persuaded that this and other new evidence would lead to an acquittal, and the matter was again referred to the Court of Criminal Appeal.[2] In Condren (1990) 49 ACR 79, that court found that there would be a miscarriage of justice unless evidence from three new witnesses was properly considered by a jury considering the charges. On 26 June 1990, the Queensland Court of Criminal Appeal unanimously set aside the murder conviction, and a new trial was ordered.
On 29 July 1990, on the recommendation of the Director of Prosecutions, the charge of murder against Mr Condren was withdrawn in the Queensland Supreme Court, and Mr Condren was freed.
Following Mr Condren's release, he and three of the witnesses who had given statements about the murder to the police made a complaint to the CJC.
Mr Condren had complained that prior to making the Record of Interview he had been subjected to assault and intimidation by the police, and the interview and alleged oral admissions prior to it had been largely fabricated by the police.
These complaints were considered by the CJC to be within its jurisdiction, and formed the major terms of reference of its report.
The Commission considered that a review of the available evidence did not justify disciplinary charges against any police officers for misconduct, neglect or violation of duty in relation to the matters investigated.
Serious questions have been raised about the conduct, adequacy and thoroughness of the investigation conducted by the CJC. The 'investigation' itself consisted predominantly of a review of existing written records, with no new evidence being uncovered through an apparent failure to conduct field investigations of any substance.
The Report focussed on aspects of the CJC's terms of reference relating to endemic issues in the criminal justice system, rather than deeply probing the circumstances of Mr Condreri s conviction. For example, the CJC relied heavily on the evidence of socio-linguist, Dr Diana Eades, about the disadvantage faced by Aboriginal and Torres Strait Islander people in the criminal justice system, while excluding Dr Eades' evidence regarding anomalies and inconsistencies in Mr Condren's Record of Interview.
The CJC recommended changes to the police General Instructions to extend the 'Anunga rules' enunciated by Foster J in R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412, and further suggested the incorporation of changes similar to s23H of the Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth), in relation to the questioning of Aboriginal and Torres Strait Islander people. Recommendations were also made to change the Evidence Act 1977 (Qld) to provide courts with a discretion to reject confessions which were not electronically recorded and confirmed in writing or supported by the evidence of a non-police witness, or where a confession was made in circumstances rendering it unreliable. The CJC further recommended that, where a confession was not electronically recorded or confirmed in writing by an interviewee, or supported by the evidence of a non-police witness, it should not be admissible in relation to an indictable criminal offence, with the proviso that the court could admit evidence of a confession if it was satisfied that there were exceptional circumstances to justify doing so.
While these recommendations are commendable, it should be noted that the CJC made no new recommendations of any substance. The police are already required to comply substantially with the 'Anunga rules', which are incorporated into General Instruction 4.54A(c), and also the QPS General Procedures Manual, due for release later this year. The Queensland Government had also previously given in-principle support to the Standing Committee of Attorneys-General proposal to enact uniform evidence laws, as detailed in the Australian Law Reform Commission's (ALRC) Report on Evidence.[3] These draft uniform laws are fully consistent with the CJC recommendation.
The Commission declined to discuss the issue of compensation for Mr Condren's seven years wrongful imprisonment, and the general issue of compensation for miscarriages of justice.
Australia has adopted (subject to reservations) an international human rights standard that may be used to award compensation to the victims of miscarriages of justice. Article 14(6) of the International Covenant on Civil and Political Rights (ICCPR), provides that:
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
Australia's reservation to this Article provides for compensation at the discretion of the government for the jurisdiction concerned[4] and has tended to involve ex gratia payments, which have been notoriously difficult to receive .[5]
The awarding of compensation for wrongful imprisonment and miscarriage of justice to Mr Condren would be consistent with the spirit of Article 14(6) of the Covenant.
A comprehensive statement of claim for compensation for wrongful imprisonment and miscarriage of justice was prepared by Ms Johanna Sutherland, who at the time was a Lecturer in Law at James Cook University, and Mr Rowan Silva, Mr Condren's solicitor. The claim was submitted on 21 September 1993 by Robertson and O'Gorman, the Bris',anesolicitors for the Condren family, to the Acting Attorney-General at the time, the Hon. Paul Braddy MLA, Minister for Police and Corrective Services.
The statement of claim included an ex gratia payment for Mr Condren of $100,000 for each year of wrongful imprisonment, and $100,000 for the "expense, trauma, inconvenience and public shame" suffered by Mr Condren's mother.[6] A further $210,131 was sought to cover the legal expenses paid by ATSIC.
The AJAC members decided at their February meeting to refer the following recommendations to the Hon. Dean Wells MLA, Attorney-General and Minister for Justice, in relation to the CJC' Report:
AJAC has set the end of April as an arbitrary review date to assess what progress has been made with respect to the CJC recommendations and the matter of compensation for the Condren family for wrongful imprisonment.
*Neil Lofgren wishes to thank Johanna Sutherland for herhelpful comments on earlier drafts of this paper.
[1] See Woods, J., "Innocent man seeks $lm for wrongful jailing", Courier Mail, 23 September 1993, p13.
[2] Condren v R, Transcript of High Court hearing, C1T38/SH, Condren, 16 November 1989, p67-75.
[3] The Commonwealth introduced an Evidence Bill 1993 (Cth), based upon the ALRC Report Number 38 on Evidence, on 15 December 1993.
[4] See Sutherland, J., "Miscarriage: compensation for wrongful imprisonment", (1993)18 (1) ALJ 40 at4l.
[5] See Kirby, M., "Miscarriages of Justice - Our lamentable failure?', (1991)17(3) Commonwealth Law Bulletin 1037.
[6] Woods, Supra.
[7] The model legislative provision for this purpose is section 133 of the Criminal Justice Act 1988 (UK), which has been adopted by both Canadian and New Zealand legislation.
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