Ricki Nash v. Australia

The author of the communication is Ricki Nash, a national of Australia born in 1962. He submits the communication in his own name and on behalf of his sister, Cheryl Grimmer, born in 1966. He claims that the State party has violated his rights under articles 2, 6, 14–16, 23, 24 and 26 of the Covenant and Ms. Grimmer’s rights under articles 2, 6 and 24 of the Covenant. The Optional Protocol entered into force for the State party on 25 December 1991. The author is not represented by counsel.

On 30 July 2019, the Committee, acting through its Special Rapporteur on new communications and interim measures, determined that observations from the State party were not needed to ascertain the admissibility of the present communication.

In 1970, Cheryl Grimmer disappeared when she and her family were at a beach in New South Wales, Australia. At the time, Ms. Grimmer and the author were 3 and 7 years old, respectively. The author was the last person known to have seen Ms. Grimmer, who has never been found. To escape the media attention surrounding Ms. Grimmer’s disappearance, the author and his family moved back to the United Kingdom of Great Britain and Northern Ireland, where they had previously lived. They later returned to Australia in the hope of finding her.

Following the reopening of the investigation into Ms. Grimmer’s disappearance, an individual was arrested and charged with her abduction and murder. On 5 and 6 February 2019, the New South Wales Supreme Court held a pretrial hearing to consider the admissibility as evidence of a confession made by the accused in 1971, when he had been 17 years old. On 15 February 2019, the Court, sitting in single-judge formation, decided that the confession was inadmissible. The Court based its decision on section 13 of the Children (Criminal Proceedings) Act 1987 of New South Wales and took into account considerations of unfairness based on section 90 of the Evidence Act 1995 of New South Wales. Thereafter, before the scheduled beginning of the trial, the Crown Prosecutor dropped the charges against the accused because of a lack of evidence.

In subsequent submissions to the Attorney General, the author claimed, inter alia, that the pretrial hearing before the New South Wales Supreme Court had not been conducted in accordance with fair trial guarantees. However, on 17 May 2019, the Attorney General announced that he would not appeal against the decision not to prosecute because he considered that such an appeal would be “doomed to fail”. On 13 June 2019, the author submitted a complaint to the Australian Human Rights Commission. The complaint was identical in substance to the present communication. However, on 24 June 2019, the Commission responded that it was unable to investigate the complaint because its mandate was limited to complaints against the federal Government.

The author claims that the hearing and judgment of the New South Wales Supreme Court regarding the inadmissibility of the confession of the accused and the decision of the Crown Prosecutor to drop the charges against the accused violated the author’s rights under articles 2, 6, 14–16, 23, 24 and 26 of the Covenant and Ms. Grimmer’s rights under articles 2, 6 and 24 of the Covenant.

The author argues that the State party’s legal system does not afford the author an effective remedy for violations of the Covenant. Ms. Grimmer was arbitrarily deprived of her life at the age of 3, and the pretrial hearing, judgment and decision to drop the charges were biased in favor of the individual accused of having murdered her. During the pretrial proceedings, the victims and the community were not recognized as persons before the law, and their interests were not considered. The author had no opportunity to be heard in court and to explain how he and his brothers had been affected by the crime over the course of several decades. By contrast, the Court spent two days considering the rights of the accused. By excluding as evidence the confession of the accused, the State party failed to protect Ms. Grimmer’s interests as a child, as well as the interests of the author and his family, who have been devastated for almost 50 years by the burden of not knowing Ms. Grimmer’s fate. In addition, section 13 of the Children (Criminal Proceedings) Act 1987 of New South Wales was applied retroactively, to the benefit of the accused.

The author requests a retrial of the accused or an appeal by the Crown Prosecutor against the decision to exclude the confession. The author also requests a modification of relevant legislation to ensure that fair trials will be conducted in similar cases and that others will not have to experience the suffering that he has endured.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether it is admissible under the Optional Protocol.

The Committee notes the author’s claims concerning the outcome and result of the pretrial proceedings in 2019. It acknowledges the anguish caused to the author by Ms. Grimmer’s disappearance in 1970 and the subsequent uncertainty as to her fate and whereabouts. The Committee notes that the confession of the accused, which was made in 1971, when he was a juvenile, without a parent, guardian or lawyer present, was considered by two psychiatrists to be unreliable for several reasons and that, following the exclusion of the confession, the charges against the accused were dropped because of a lack of evidence.

The Committee recalls its general comment No. 36 (2018) on the right to life, in which it stated that: “An important element of the protection afforded to the right to life by the Covenant is the obligation on the States parties, where they know or should have known of potentially unlawful deprivations of life, to investigate and, where appropriate, prosecute the perpetrators of such incidents” (para. 27). At the same time, the Covenant does not guarantee to individuals the right to have a third party punished for the suspected commission of a crime. Thus, the Committee considers that the author’s request to have the criminal proceedings against the accused reopened in order to secure the accused’s conviction and punishment, despite the lack of admissible evidence against the accused, does not fall within the scope of the rights afforded by the Covenant. Accordingly, without prejudice to any ongoing or future proceedings to further investigate and elucidate the circumstances of Ms. Grimmer’s disappearance and presumed death, the Committee considers that the communication is inadmissible ratione materiae under article 3 of the Optional Protocol.

In the light of this finding, the Committee does not deem it necessary to examine other grounds of inadmissibility.

The Committee therefore decides: (a) That the communication is inadmissible under article 3 of the Optional Protocol;