Cases like those of Zak Grieve and Gwendoline Deemal-Hall demonstrate perfectly how defendants end up in prison for something they didn’t do.
First Nations man, Zak Grieve, made news when he was granted parole recently. Thousands of Australians are granted parole annually, but we rarely hear about these cases. What was so special about Zak’s?
The headlines give a good idea. Zak was freed ‘after serving 12 years of life sentence for murder he didn’t take part in.’ Similarly, ‘Indigenous man released after 12 years behind bars for murder he didn’t commit.’ And, ‘jailed for 12 years for a crime that he didn’t commit.’
Along with the operation of the Northern Territory’s mandatory sentencing regime, Zac being a First Nations man impacted on his case, which is well known for the range of injustices exacted upon him. But if we leave his First Nations status and the mandatory sentencing laws to one side for a moment, if he didn’t do the crime, why was he even in prison to begin with?
Zak’s was not a case of mistaken identity or dodgy DNA evidence or any of the other many common causes of wrongful conviction we know of.
His conviction was due to what are often referred to as ‘party provisions’ or ‘joint enterprise’ offences. Zak was convicted of murdering someone because of evidence linking him to those who did and their plans to do it (NB: due to the mandatory sentencing provisions, Zak’s sentence was initially longer than those who committed the murder).
Zak knew of the planned offence but told his co-accused before it happened that he wouldn’t be part of it. He backed out of the plan but still spent 12 years in prison.
Proving who was part of the party
Many would be familiar with the idea of being an ‘accessory’ to a crime. Party provisions are complex versions of that concept. They hold people liable for the actions of others where there was some agreement or plan to commit an offence (e.g. an agreement to break into a house to steal, where a person drives the car to the house but doesn’t go inside).
These laws can make someone guilty for something they did not do and even had no intention of doing. A vital part of criminal justice is the notion that a person must have formed an intention to commit an offence before they can be made liable for it.
Extending liability
At what point will someone be held liable as a party, especially when the ‘plan’ turns into something much more serious (e.g. while inside the house an occupant is killed; is the driver of the car outside liable for murder as if they were inside)?
Zak’s lawyer for his mercy application, barrister and academic Dr Felicity Gerry KC, also acted for the defendants in the important UK case of R v Jogee. The Jogee decision was a watershed moment in English legal history. Gerry KC successfully argued that English courts had taken a wrong turn with extended liability cases. It was operating in a way it was never intended to by extending liability in many cases, making people liable for crimes they had no intention of committing.
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Zak Grieve: Doing time when you didn’t do the crime – The Big Smoke …”Zak’s lawyer for his mercy application…also acted for the defendant in the important UK case of R v Jogee…a watershed moment in English legal history….” https://t.co/Ba456hKflt
— Dr Felicity Gerry KC (@felicitygerry) November 21, 2023
