The mechanism for seeking to have a conviction overturned (after all appeals available via the criminal justice system have been exhausted) was changed in Victoria in 2019. Prior to that year, the only mechanism available was to petition the State Governor for mercy. In effect this was a petition to the Victorian Attorney-General. If successful, a petition would lead to a judicial inquiry. Very few petitions were successful.

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In response to international criticism, four Australian states now provide for an additional appeal to the Appeals Court if “fresh and compelling” evidence can be produced. This has applied in Victoria since 2019. Many legal commentators have noted the illogicality of this provision on the basis that should an appeal be granted, the legal standard that will apply at the appeal hearing will be one of “is there reasonable doubt about” the conviction. Thus, in effect, the hurdle to be overcome to win a new appeal is higher than the hurdle that will have to be met for the conviction to be over-turned should an appeal be granted.

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While situations do arise where “fresh and compelling” evidence becomes available (e.g. DNA evidence, a confession by another person) these situations are uncommon. Most often, the grounds for a further appeal relate to better, or evolving, or more scientific understandings and interpretations of forensic and other expert evidence heard at trial. This is the “catch-22” situation of Robert Farquharson’s legal team – whether the court will accept that improved understanding of cough syncope (and Farquharson´s ongoing episodes), accident reconstruction, and the frailties of witness memory meet the criteria of being “fresh and compelling” evidence.

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The possibility of a genuinely independent review of Robert’s situation would be more likely if Australia had in place a Criminal Cases Review Commission as has existed in the England, Wales and Northern Ireland for over 20 years, along with a separate Commission in Scotland for about the same length of time. Such a Commission was recently established in New Zealand and has been legislated for in Canada.