by Mary W Maxwell
Long story short: my “rabbi,” the late Sherman Skolnick, open my eyes to the legal concept of fraud upon the court, after which I wrote a book on that topic. Picture this: the Court is society’s highest spokesperson, short of God. Therefore it is important to be respectful to the Court, and to believe in it. We all know it must never act cheap; the Court shouldn’t even be like an ordinary mortal, lying and stealing.
Understood? Good. Then you will know that if anyone finds that a member of the Court did something fraudulent towards the perfect workings of the Court, it will have to be set right.
The common law writ of coram nobis is categorized as an ancient writ. It dates to the 1500s in England. In Sir William Blackstone’s Commentaries on the Laws of England of 1769, this writ does not get a mention as it had gone into disuse, but it is being revived.
At the King’s Bench there were written records of cases. The phrase “quae corum nobis resident” means “that which is before us” (us, the royal us).
If someone became aware that there was an error in the records of a case, he could petition for a writ of error coram nobis. That is, you could ask to have the wrong righted. (There were no criminal appeals in those days.)
Britain colonized North America and Australia. The great gift flowing from that enterprise (in my humble opinion) was that the beautiful common law went to those continents. Part of the common law was the writ of error coram nobis.
So in 1788 when Captain Cook hopped ashore in Botany Bay, the whole of the law hopped with him, including – whether anyone at the time noticed it or not – coram nobis.
The March 22 Letter
Fast forward to March 22, 2016. I sent a petition for a writ of coram nobis to the Tasmanian Supreme Court, respectfully asking that they remedy the wrongful conviction of Martin Bryant. I specified as the case’s “error of fact” that the defendant, Bryant, was tricked by his attorney, John Avery.
I cited the maxims lex et dicatamen rationis (Law is the dictate of reason), and lex semper dabit remeduim (The law will always furnish a remedy) — hoping such a gesture would not constitute lèse-majesté.
The Court, in the person of the Deputy Registrar, sent my petition back to me with a cover letter, dated April 7, 2016, saying “a ‘writ of error coram nobis’ is not known to the law in Tasmania.” This led me to search for it.
At the moment I think I have found that Tasmania does “know” coram nobis, but would appreciate anyone’s clarifying — or challenging – my belief on that.
Is Coram Nobis Still Extant in Tasmania?
Here, then, are the questions to be answered:
- Did common law enter the colony of New South Wales (of which Van Diemen’s Land was a part) in 1788? The answer is yes; no one disputes that.
- Did England do anything to change the relevant law (regarding coram nobis) before 1856, the year that Tasmania got its own Parliament? We’ll discuss this below.
- If England did not repeal the writ of coram nobis prior to 1856, did the legislature of Tasmania enact any statute after 1856 to repeal it? The answer is no. One can see in the Criminal Code Act of 1924 that there is no mention of repealing coram nobis, while there is explicit repeal of outlawry and attaint.
So the mystery to be solved is: what happened in England, if anything, between the years 1788 and 1856, that would cause the writ of coram nobis to be extinguished in the colony of Tasmania?
I assume that if nothing happened, coram nobis did become part of the colonial law of Tasmania from 1856 to 1900 and then became part of the state law of Tasmania upon Australia’s federation in 1901. And thus, even today, coram nobis is part of the common law there.
The Judicature Act of 1876, and the Statute of Westminster of 1931
At first my research brought the good news that England, in its Judicature Act of 1876, abolished the writ of coram nobis. I say “good news” because 1876 falls after the date at which a Parliament in the colony of Tasmania was making its own laws.
Note: it’s true that England was still throwing its weight around throughout the British Empire empire in the 19th century. It passed many laws that had “paramountcy” overseas. That is, the colonies in Australia had to accept them.
So one shouldn’t just assume that the 1876 Judicature Act was not imported here, but take my word for it; it wasn’t. That British legislation applied only to the courts of England and Wales – not to Ireland and Scotland, which had their own courts, and not to the colonies.
Later, the Westminster Act of 1931 halted the practice of British statutes having automatic effect in Australia.
The Crucial Period, 1788 to 1856
It looked to me that the coast was clear, that nothing had happened in England prior to the important year, 1856, that would prevent Tasmania’s keeping the writ of coram nobis.
But then I read in a journal that “coram nobis was abolished [in England] by the Common Law Procedure Act of 1852.” Oh no! Four years before the cut-off!
This information came to me just as the book I was co-authoring with Dee McLachlan, Port Arthur: Enough Is Enough, was about to go to print. I added, to page 278, the news about the 1852 problem and said “The four-year jump on 1856 may have doomed Bryant.”
That is, it meant we could not plead for him on the basis of a coram nobis. But I hadn’t yet read the 1852 Act to make sure it did what that journal said it did. However, today, July 23, 2016, I downloaded the offending document from legislation.gov.uk. Hallelujah! I think we’ve won.
The Common Law Procedure Act
The Act begins with its date: Anno Decimo Quinto & Decimo Sexto, Victoria Reginae.- — and the Queen’s banner: Honi soit qui mal y pense.
It’s astonishing to see that legislation only 164 years ago could use such obtuse English. For example:
“In cases in which a Plea Puis darien Continuance has heretofore been pleadable in Banc or at Nisi Prius, the same Defense may be pleaded….”
I am pretty sure that this Common Law Procedure Act is only for civil cases not criminal. I have been told that a further act – The Criminal Appeal Act of 1907 in England is the one that took away the coram nobis option. That makes sense, as it is the Act that gave methods of appealing a criminal case.
Still, I’ll now quote whatever there is in the 1852 Act that is of relevance. Note: they use the phrase “Writ of Error.” I think that may refer to an everyday writ, not the kind in which coram nobis shines – as I’ll elaborate below.
Note: the sections below have an unofficial side bar that says “Writ of Error abolished.”
Section CXLVIII “Either Party alleging Error in Law may deliver to One of the Magistrates a Memorandum… alleging the Error of Law in the Records or Proceedings.”
I neglected to say earlier, that the ancient Writ of Coram Nobis is about errors of fact not of law, so the above quote is unlikely to be relevant. However there is also this:
CLVIII “Either Party alleging Error in Fact may deliver to the Master a Memorandum…alleging that there is Error of Fact in the Proceedings, together with an affidavit of the Matter of Fact in which the alleged Error consists….
CLIX “The Plaintiff in Error, whether in Fact or Law, shall be at liberty to discontinue his Proceedings .…”
CLX “The Defendant in Error, whether in Fact or Law, shall be at liberty to confess Error and consent to a Reversal of the Judgment….”
I did not yet check out the 1907 Criminal Appeal Law; I have ordered a copy. So I can’t say it expressly repeals the writ of error coram nobis. I am thus not on the firmest ground in declaring victory.
But we can ask: what can be done if we do prove that the writ of error coram nobis is usable in Tasmania?
American Use of Coram Nobis
First let me mention that this writ is flourishing today in the United States. A scholar, writing in 1953 said:
“Using the American Digest System as an indicia of occurrence, in the period 1658-1916 thirty criminal cases involving the writ reached the appellate courts. By contrast, in a recent five year period, 1949-1953, nearly five hundred writs of error coram nobis in criminal cases were considered by appellate courts.”
And that was before the Korematsu case in which the US Supreme Court affirmation of conviction of 1942 was set aside — forty-two years later in 1984 in federal court in California.
Note: statute-wise, Congress passed the All-writs Act in 1793, confirming the common law for federal (not state) cases. The Federal Rules of Civil Procedure says, in its Rule 60(e):
“The following are abolished: writs of coram nobis, and audita querela.” But that applies to civil cases only.
Here is a judge in an Arkansas case, Davis v State (1996):
“Error coram nobis is a rare remedy. It is available only where there is an error of fact extrinsic to the record, such as insanity at the time of trial, a coerced guilty plea or material evidence withheld by the prosecutor, that might have resulted in a different verdict. Taylor v. State, 303 Ark. (1990). The writ has also been used in cases in which a third party confessed to the crime during the time between conviction and appeal. Smith v. State, 301 Ark. (1990).
The criteria for coram nobis, as stated in a 1945 case, Commonwealth v Harris, in Pennsylvania is often quoted:
“Coram nobis lies only where facts exist extrinsic of the record, unknown and unknowable by the exercise of diligence at the time of its rendition, and which would, if known, have prevented the judgment either in its entirety or in the form in which it was rendered.”
Can we now try to use coram nobis for Martin Bryant in Australia? I think so. However an interesting new barrier has arisen. In September 2015, Tasmania’s parliament passed an amendment to its Criminal Code Act of 1914 allowing anyone to file for a second or subsequent appeal in a criminal case.
Section 402(a)(3) of the Act now says:
“A convicted person may apply to a single judge for leave to lodge a second or subsequent appeal against the conviction on the ground that there is fresh and compelling evidence.”
It looks as though the purpose of the new legislation is to cover situations similar to the ones for which coram nobis has been appropriate. There is a requirement that the material could not have been known at the time of the trial. And again it is for errors of fact, not errors of law.
No doubt Martin Bryant could produce numerous facts that have come to light after his trial – oops he didn’t have a trial.
However, I have noted a possible issue. The way the new law of “fresh and compelling evidence” works is that a person must be asking for “a second or subsequent appeal.” If the Tasmanian Supreme Court wishes to be a stickler, they can say that Bryant does not qualify as he didn’t have a first appeal!
But if he can’t make the grade on this new type of appeal, he can – I think – make it with a writ of error coram nobis.
Any lawyers wanting to help Bryant, please consider this!
— Mary W Maxwell lives in Adelaide. She is not a lawyer.
Photo credit: Dee McLachlan