Coram Nobis – an Ancient Common Law Writ for Martin Bryant?

Coram Nobis case plaintiffs Gordon Hirabayashi, Min Yasui and Fred Korematsu (1983)

by Mary W Maxwell, PhD, LLB

You have heard of many cases in which someone was accused of a crime and was convicted, and then later got an acquittal. In ancient common law there was little scope for overturning a case, but in the modern era, legislatures have arranged for an appeals process and “motions for a re-trial.”

Those are the two means by which a wrongly convicted person can seek relief. Usually they have tight time frames.

I don’t suppose Martin Bryant, who was convicted by the Supreme Court of Tasmania would be able to use the appeals process or the re-trial process, as the conviction was dated 1996 (though I could be wrong on that).

Anyway, the common law still provides for the operation of two ancient writs, habeas corpus and coram nobis. In Mother England, where these began, it appears that the writ of coram nobis was eroded by the Judicature Act of 1873 (and was replaced by a similar remedy).

In the US the writs are still in force. The 1944 Morgan case brought forth a US Supreme Court ruling that said coram nobis may be used in criminal cases. In 1984, Fred Korematsu, who had been wrongly convicted in World War II, won a “setting aside” of his conviction by use of coram nobis.

In that case it was a judgment by a federal court that had sent Korematsu to prison. Common law is available also in 49 of the 50 states (The exception, Louisiana, uses the Napoleonic code). But what about Australia? I have not found any legislation that strikes out the operation of the common law of coram nobis in criminal cases. (Please correct me if I am wrong.)

Coram Nobis and Fraud Upon the Court

The full name of this writ, in which someone petitions the king (in the old days) or the Court (today), is quae error coram nobis resident – “those things that are in error in our presence.” This refers to the fact that the case is still on the books of that court; it has not gone higher up.

In 2015 I wrote a book about this, entitled Fraud Upon the Court. There I was keen to show how the writ of coram nobis can be used if an officer of the court has committed a fraud.  “Officer of the court” includes the judge, the clerk of court and – I believe, as in the Korematsu case — the prosecutor.

We are not talking about a witness who lied, or an attorney who coached his client to say something dishonest. In our adversarial system it’s up to the two opposing parties to up-end such sins of the other side by cross-examination.

The principle behind coram nobis is that the court is sacred. One must not allow it to be subjected to fraud. How could justice be done if the court itself is dishonest? Horrescendo!  In the Korematsu case, the prosecutor had withheld exculpatory evidence during the trial in 1942.

By 1984, when Judge Marilyn Patel wanted to set aside that ruling, base on coram nobis, she held a hearing. The prosecution did not fight her on the matter of the withheld exculpatory evidence. Ergo, Korematsu was “freed.” (Actually he had been out of prison for many years.)

Coram Nobis Is Only about Fact, Not Law

Among the requirements for coram nobis are these:

1. the options of re-trial and appeal must be unavailable.

2. The petition for a writ must be made by the convict, or his guardian, or his heirs if he is deceased.

3. The grounds on which to proceed must be some new fact that was not known at the time of trial (and that this ignorance was not caused by the accused’s negligence).

4. It must be proposed that if the Court had had this item at the time it would not have ruled to convict.

On September 19, 2011, I submitted a petition for a writ of coram nobis on behalf of a prisoner in the US, to the county court that convicted him. (That was nine days before I graduated from Adelaide Law School.) It was not accepted, and the man was executed two days later.

The fact which I claimed constituted “fraud upon the court” was that the family of the accused had not been allowed to attend his trial in 1991. (They were told they must not show up – can you imagine – and they believed it.)

This, I said, deceived the jury. Jurors saw a person who was in fact from a good, supportive family, appearing as a loner. I said the jury may have also surmised that the family’s “decision” to stay away was a sign that they knew of his ‘guilt.’

Coram Nobis for Martin Bryant

Here at Gumshoe News, we have been declaring the conviction of Martin Bryant unfair.  We have deduced (based on the research of many persons) that one man could not have carried out all the 35 killings at Port Arthur, and certainly not that man, as he lacked the skill.

The Martin Bryant case was a travesty in every way and anyone who looks at it today will see that. He pleaded not guilty from May until November, 1996, when he changed his plea to guilty. The pressure to change came from his “defense” attorney, John Avery, who did not even demand a trial.

Note: it is standard practice in a murder case to hold a trial even where the accused pleads guilty, as he may be doing so under coercion.

Additional pressure to plead guilt came from his mother, Carleen Bryant, who now regrets it and says she, in turn, was pressured by others to pressure her son Martin, age 29 at the time.

The most egregious aspect of the case is that some witnesses were eager to give testimony in favor of Martin’s innocence — including an alibi, and proof of improper police investigation of the case – but they were NOT ALLOWED to speak.

It Is Totally Political

The Port Arthur event was planned by experts and carried out for political reasons. I say that confidently based solely on the way the trial – sorry, lack of trial – for Bryant was conducted.  No judicial system behaves like that. You can smell the problem a mile away.

Even the lack of discussion of the case in law journals is telling. In 2013, a journalism student at the University of Tasmania, Enrica Rigoli, wrote about the media’s demonization of Martin. But no one has picked the legal case apart. It’s so pickable you could do five PhD theses on it. Silence reigns.  Fear reigns.

Possible ways to deal with the matter at this late date include Cherri Bonney’s petition at Change.org with nearly 1500 persons wanting to see a change, and Keith Noble’s “barristerial initiative,” encouraging Tasmania’s 43 barristers to take up the issue.

Also, Dee McLachlan has pointed to the need for Martin to have a more pro-active guardian.

I have suggested at Gumshoe that we turn the tables and charge others with crimes at this point. The list includes the media for covering up the original facts in 1996, and numerous officials for obstruction of justice. There also appear to be some persons inciting the killing of Martin Bryant.

I favor the easy way out.  The easiest possible way is via a pardon. This could come from Her Majesty, via the Governor of Tasmania, Professor Kate Warner. I think it could also come from the Parliament, via the premier, Will Hodgman.

As I said in an article entitled “The Exculpation Waltz,” I recently consulted the state constitution of Tasmania to see the role of the judiciary, and could not find any mention of it! If I am right, the Parliament can do as it pleases, and can grant Mr Bryant a pardon.  BOB’S YOUR UNCLE!

Failing that, a writ of coram nobis cannot be ruled out.

Mary W Maxwell is co-author with Dee McLachlan of Truth in Journalism (2015).