If Pell, why not other innocents in jail?

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, Australia Day2009

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.

Robert Xie

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.

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7 Responses to If Pell, why not other innocents in jail?

  1. Tony brownlee says:

    All the Pell decision in the HC of A did was heighten the obvious. Wrongful convictions occur fail, innocent people ate jailed daily, “ one gets as much justice in Australia as one can afford” it’s just the way it is. Pell had it all. Put Brett Walker on every case and your chances just like Pell of winning and getting off increase 100 fold. No surprises here. Money buys justice in Australia.

  2. Williambtm says:

    Well presented Andrew, you are unquestioningly correct in your analysis of the Sue Neill-Fraser case and the contretemps relating to the Pell decision.
    I have now completed all of my research undertakings regarding an earlier Supreme Court trial where the same DPP had discharged the case in question, based on the advice of his wife.
    This particular case has since been buried in the inappropriately designated ‘nolle prosequi’ archives.
    Trial discharge 2006…nolle prosequi decision… 2018…The ramifications of a retrial would have delivered the sufficiency of proven fact for the sacking of a number of senior legal spooks as well as 2 judiciary appointees…Tasmania’s justice system is an Ass.

  3. Brian Johnston says:

    The biggest injustice in Australian history is Martin Bryant. Gaoled without a trial.
    Pleaded guilty after 5 months solitary confinement.
    No one saw him because he was elsewhere.
    Two people in the café said to the effect the shooter was not Bryant
    1. Navy personnel shot in neck said shooter had pocked complexion.
    It turned out to be from chicken pox. Bryant smooth complexion
    2. The owner of the café said: Martin used to come into the café sit in the same chair order the same meal and talk to my daughter. The shooter did not fit his description.
    Bryant 40? k’s away
    If Bob Moles was so clever why does he not involve himself in defence of Bryant.
    Lindy Chamberlain is possibly No. 2
    The Gun Alley Murder is interesting. They hanged an innocent man. I believe he was the last person hanged in Victoria or Australia

  4. Sandra duncan says:

    Sent from my iPhonePlease take the time to read .. I taught in a prison for many years .. Rock spiders ( paedophiles) were the most hated by the other inmates .. why? .. a huge percentage of the prison population had been sexually abused as children . I’ve witnessed big tattooed scary ‘crime ’ break into tears and sob when speaking about it . Childhood sexual abuse is about rape, the power of authority, harmful lifelong effects premature sexualisation, loss of trust , lack of safety and protection as a child, victim blaming and essentially loss of a childhood .. etc etc Pell was essentially released in a technicality ! I feel such a sense of outrage when I think of innocent Sue Neill Fraser still imprisoned in Tasmania for a crime it has been proved impossible for her to have committed . The High Court dismissed her appeal after the briefest of considerations . Comparing the two cases shows the corruption in Australia at the highest levels of judiciary, governments and powerful institutions such as churches .. and dare I say , entrenched patriarchal power .

    • Chris says:

      Well, I think we all agree about pedophiles and the damage caused. But Pell wasn’t released on a technicality, which was the surprising thing about the decision in many ways. The high court actually weighed the evidence. Not much technical legal stuff involved at all. This is very rare. Australia is awash with miscarriages of justice, not all that different to the USA. Our adversarial system is equally liable to error. We just don’t own up to them because our appeals courts, as you suggest, generally only work with technicalities and that is not helpful in most miscarriages. I hope that this is the start of a new era in Australia, where Appeals Courts start uncovering miscarriages of justice…. but I fear it will be a false dawn, and that this case will be an exception. That would be a huge disappointment and would point to power and influence actually being a factor. Let’s hope that does not prove the case.

  5. Geraldine Allan says:

    An objective root cause analysis independently conducted seems a useful start. Being slightly familiar with the methodology, I support it in any instance where in the public interest it is necessary to discover what happened.

    Yes, the Susan Neill-Fraser conviction also warrants inquiry. For now it seems to me the Pell conviction now quashed, has more likelihood of inquisition than does SN-F. Yet, if the Tasmanian CCA SN-F appeal is upheld, the chances of inquiry increase.

    • Mary Lewis says:

      It seems to me that the legal systems in all our States need a major overhaul. Certainly Cardinal Pell has been high profile and although divisive because of the sexual abuse by other Catholic clergy, anyone who cared to look at the facts could easily see that it was highly unlikely that Pell was guilty. Sue Neill-Fraser’s case is a disgrace to the system but in many ways I think we should be grateful that Pell is so high profile because his case has shown that the onus of proof really should be on the prosecution. It is my guess that we are going to see a relatively high number of wrongful convictions as a result of the referrals to the police by the Royal Commission into child sexual abuse. Clearly sexual abuse was occurring but I am estimating that at least a third of the referrals by the Commission are about innocent men who will be prosecuted and convicted until the message starts to get through that alibi evidence has to be properly considered and that Crown Prosecutors [and obviously police] have to actually have some evidence beyond an allegation. And that is all it takes at the moment in these historic sexual abuse cases.

      I personally know of three people [two convicted and one waiting to go to trial] and none of them could possibly be guilty. There is a complex array of reasons why their accusers believe they were raped – apart from a couple of blatant liars. I also know several who have yet to go to trial who very possibly could be guilty. But they are entitled to their day in court and should not be vilified as they have been by the press, until they are found to be guilty.

      The press has a great deal to answer for in the way it tends to sensationalise crime in a “holier than thou” manner so that people are effectively tried in the Court of Common Opinion by people who have no idea of the facts in any particular case. And a cursory look at FaceBook shows a seriously disturbing element of hate and bigotry by humans acting more like hyenas. We saw the influence of the press with Lindy Chamberlain without the assistance of Facebook. I am not in Tasmania so I do not know what the social feeling was like at the time. But it does make me wonder what we as a nation have come to that we can be stirred up to such horrible crowd mania.

      At this time of the year one cannot help being reminded of the crowds who turned on Jesus with all the brutal venom and hate that caused his crucifixion. I know religion is not a popular concept with many people, but it was still an horrific historic fact of stirred-up crowd hate. With a judge [Pilate] finally succumbing to the crowd.

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