Andrew L. Urban.
George Pell’s supporters are backing a review of the way Victoria Police and the Office of Public Prosecutions handled the ultimately failed pursuit of the cardinal. Terry Tobin QC* said that if the High Court was right about the possibility of the offences not occurring, an innocent man had been sent to jail for 405 days in what was one of the biggest injustices in Australian criminal history.
Sue Neill-Fraser’s supporters are also keen to see a review of how the police (in this case Tasmanian) and the Office of Public Prosecutions handled the case that has resulted in a notoriously unsafe conviction. Arguably just as big an injustice as Pell’s: she has been in jail for over 10 years. But Tasmania is out sight of mainland media and Neill-Fraser is not a controversial public figure. The injustice is the same, though.
The public’s attention is harder to capture; her murder conviction doesn’t generate the sort of heat, hate and hype that (alleged) sex offences do. So that’s one answer as to why not the global fuss over her case. But great fuss there ought to be: the facts of the case are damning of The System.
“The coppers and the Director of Public Prosecutions would be assisted, I think, by doing a root-cause analysis, by figuring out dispassionately … what happened in this case,” Tobin said. Anyone following the legal disaster that is the Neill-Fraser case, would cheer such an approach in Tasmania, but at the same time laugh with derision at the very thought. (Legal academic at Flinders University, Dr Bob Moles invited then DPP Tim Ellis to participate in such an analysis some years ago in the Neill-Fraser case, but his invitation was ignored.)
Experience has taught Neill-Fraser’s supporters that Tasmania’s legal fraternity would rather endure the barrage of criticism from powerless supporters – which includes several QCs and other lawyers – than admit any error. In real life, the Crown is not a model litigant and has done and will do whatever it takes to protect the conviction. At stake is the revelation of gross incompetence, malpractice and lies that led to that conviction.
So while there is no similarity between the Pell case and Neill-Fraser’s, there is plenty of similarity in the way the legal systems in these two States has failed. (Other States are not blameless, either…)
With the legal profession barricaded behind its professional protection and immunity barriers, no outside institution is able to bring injustice within those barricades to justice. That responsibility resides entirely within each jurisdiction. Is the criminal justice system robust and ethical enough to correct its errors? Well, sometimes, and its failures to do so are egregious. Lindy Chamberlain’s conviction over 30 years ago was expected to be a lesson for The System: The System has learnt nothing from it.
Confidence in The System is lacking and is drained further by cases such as Pell and Neill-Fraser – and others, including Robert Xie, arrested May 5, 2011 and convicted on February 13, 2017 – without evidence (like the other two examples) – for the July 18, 2009 murder of five family members in Epping, NSW, and whose appeal is still in the queue.
The general public’s fascination with ‘true crime’ falls away when it comes to the complicated and detailed world of ‘true wrongful convictions’. Most media (with notable exceptions) tends to avoid that subject, for the same reason: too hard. Trusting The System that we boast about as being based on the ‘infallible’ jury system# and the presumption of innocence is naive. In reality, dozens of wrongful convictions have shown The System is every bit as flawed as the humans who operate it. Beware The System.
Footnote: Senior lawyers also are urging the Victorian government to legislate for the option of judge-only criminal trials in Victoria, like other states have, particularly in the case of high-profile alleged offenders.
# Reference: Can juries get it wrong?
* Terry Tobin QC is Chancellor of The University of Notre Dame Australia.