Fraud in Criminal Proceedings

AuthorBibi Sangha/Kent Roach/Robert Moles
Pages169-187
CHAPTER
6
Fraud
in
Criminal
Proceedings
In
this
chapter
we
examine
a
special
type
of
miscarriage
of
justice.
In
accord
ance
with
our
previous
discussion,
we
must
be
dealing
with
a
situation
where
there
has
been
a
trial,
a
conviction,
and
an
unsuccessful
appeal.
Suppose
that
it
was
then
discovered
that
the
conviction
had
been
obtained
by
serious
mis
conduct
amounting
to
fraud.
In
such
a
situation,
we
ask
if
there
is
a
right
to
be
heard
by
the
court
system,
and
if
the
claim
is
made
out,
for
the
conviction
to
be
set
aside.
1
There
may
well
be
many
circumstances
where
resorting
to
such
a
right
would
not
be
necessary.
In
the
United
Kingdom,
for
example,
the
Crimin
al
Cases
Review
Commission
(CCRC)
would,
no
doubt,
refer
the
matter
to
the
Court
of
Appeal.
In
Canada
and
Australia,
the
relevant
Attorney
General
might
refer
the
matter
back
to
the
court
under
the
relevant
statutory
power.
However,
were
those
things
not
to
happen,
we
ask
whether
there
is
a
residual
right
for
the
court
to
address
these
issues
upon
application,
without
the
neces
sity
for
a
reference
upon
a
petition
and
in
the
absence
of
any
right
of
appeal.
This
issue
raises
important
constitutional
questions
about
the
separation
of
powers
between
the
judiciary
and
the
executive,
and
whether
the
judiciary
has
an
ongoing
responsibility
to
ensure
that
verdicts
rendered
by
the
courts
are
not
the
results
of
frauds
that
have
been
perpetrated
on
them.
2
1
An
earlier
version
of
this
discussion
was
published
in
Bibi
Sangha,
Extending
the
Scope
of
Post-conviction
Reviews
(2007)
30
Austl.
Bar
Rev.
90.
2
The
courts
have
recognized
a
related
concern
about
abuse
of
process.
See,
for
example,
Connelly
v.
Director
of
Public
Prosecutions,
[1964]
A.C.
1254;
R.
v.
Jewitt,
[1985]
2
S.C.R.
128.
See
also
Gino
Dal
Pont,
Judgments
Fraudulently
Obtained:
The
Forgotten
Equity
(1995)
14
U.
Tasm.
L.
Rev.
129.
169
170
Forensic
Investigations
and
Miscarriages
of
Justice
Suppose,
for
example,
that
a
situation
such
as
the
IRA
bombing
cases
had
occurred
in
Australia
or
Canada
in
recent
times.
After
conviction
and
appeal,
it
is
then
found
out
that
the
expert
witnesses
had
given
fraudulent
evidence
to
the
court
in
relation
to
their
tests
or
results.
From
what
we
have
already
explained,
we
know,
for
example,
that
the
Australian
appeal
courts
cannot
re
open
an
appeal
after
its
order
has
been
formally
recorded
(or
perfected
)
and
that
the
High
Court
cannot
receive
fresh
evidence.
The
only
avenue
left
is
a
reference
back
to
the
court
by
the
state
Attorney
General
or
in
Canada,
by
the
federal
Minister
of
Justice.
There
could,
however,
be
widespread
concern
that
adverse
findings
against
such
expert
witnesses
might
lead
to
the
reopening
of
many
other
cases.
In
such
circumstances,
an
Attorney
General
might
well
refuse
to
refer
the
matter
back
to
the
court.
Would
that
mean
that
a
possibly
innocent
person
would
have
to
serve
out
the
remainder
of
a
sentence
or
can
something
more
be
done?
In
this
chapter,
we
explore
the
possibility
that
there
is
a
residual
right
to
be
heard.
A.
CIVIL
AND
CRIMINAL
CASES
It
is
worth
stating
at
the
outset
that
some
of
the
cases
we
refer
to
in
this
chap
ter
are
civil
as
opposed
to
criminal
cases.
It
might
well
be
argued
that
where
certain
rights
to
further
consideration
are
available
in
civil
proceedings,
then
similar
rights
ought
to
be
available
in
criminal
cases,
given
the
more
serious
consequences
that
follow
from
such
adverse
findings.
We
also
find
that
much
cross-referencing
takes
place
between
both
civil
and
criminal
cases
in
this
area,
as
one
might
expect
when
dealing
with
the
most
fundamental
issues
of
court
procedure.
For
example,
in
Burrell
v.
The
Queen?
a
recent
and
important
Aus
tralian
criminal
case,
it
was
said:
Secondly,
it
is
important
to
recognize
that
underpinning
consideration
of
the
issues
presented
in
this
matter
are
fundamental
principles
about
finality
of
litigation
....
A
central
and
pervading
tenet
of
the
judicial
system
is
that
controversies,
once
resolved,
are
not
to
be
reopened
except
in
a
few,
narrowly
defined,
circumstances.
That
tenet
finds
reflection
in
the
restriction
upon
the
reopening
of
final
orders
after
entry
and
in
the
rules
concerning
the
bringing
of
an
action
to
set
aside
a
final
judgment
on
the
ground
that
it
was
procured
by
fraud*
3
Burrell
v.
The
Queen,
[2008]
HCA34
\Burrell\.
4
Ibid,
at
para.
15,
Gummow
A.C.J.,
Hayne,
Heydon,
Crennan,
and
Kiefel
JJ.
[emphasis
added],
referring
to
D
Orta-Ekenaike
v.
Victoria
Legal
Aid,
[2005]
HCA
12,
Gleeson
C
J.,

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