Not guilty – but punished by a system we trust(ed?)

Andrew L. Urban.

Most people trust the legal system and accept the guilty verdicts of the courts. Is that trust sometimes betrayed – either maliciously or through incompetence? And is it justified? Not if these few examples of innocents being punished are any indication. 

* A West Australian man who is 13 years into a life jail term for murdering his pregnant girlfriend had his conviction quashed and a retrial ordered last week, amid allegations police planted crucial pieces of evidence.

Scott Austic’s previous appeals failed, but in 2018 WA Attorney-General John Quigley — in a rare move — referred his case back to the Court of Appeal after Austic’s legal team raised concerns about some key evidence in the case.

Those concerns included allegations that the evidence may have been planted by police, including a bloodied cigarette packet that was not in the first photographs and a crime scene video taken at Austic’s house, but did appear in a photograph that was taken more than 30 hours later.

The murder weapon was alleged to be a folding knife, but the knife police said was the murder weapon was not found by detectives until three days after Thorne’s death, despite an earlier search of the same area by State Emergency Service (SES) volunteers. A British forensic pathologist testified at Austic’s appeal that it was unlikely the same knife had caused Thorne’s fatal wounds, because its blade was too short.

Scott Austic has always maintained he did not murder 34-year-old Stacey Thorne, who was 22 weeks’ pregnant with his child. Thorne was stabbed 21 times and left to die at her home in Boddington, south-east of Perth, in December 2007. Prosecutors said the motive for the killing was that Austic — who lived about 350 metres from Ms Thorne and kept their relationship secret — did not want her to have the baby.

* In NSW, Robert Xie will finally get to court next month to appeal his conviction on five counts of brutally murdering his wife’s brother and his family in 2009. This circumstantial case is remarkable for the lack of evidence linking Xie to the crime or the crime scene, lacking motive and contradicted by the autopsies and the nonsensical argument put by the prosecution concerning DNA found in Xie’s garage, 200 metres from the crime scene.

Robert Xie

So little could the police find to identify the killer/s, after two years they chose to implicate Xie, putting their weak and implausible story together to arrest him.

July 18, 2009
Newsagent Min Lin, 45, Lin’s wife Yun Li “Lily” Lin, 44, their sons Henry, 12, and Terry, 9, and Lin’s sister, Yun Bin “Irene” Lin, 39, are found dead in their North Epping home.

May 5, 2011
Robert Xie is arrested and charged with five counts of murder. Police tell the media that he emerged as their prime suspect about six months after the killings. Xie is held on remand. It’s almost two years since the murders.

December 20, 2012
Xie is granted bail by local court magistrate John Andrews, who says the Crown case is not strong.

Andrews noted that the prosecution had described the murder of Xie’s brother-in-law, Min ”Norman” Lin and four members of his family, bludgeoned and strangled in their beds, as a crime of extreme violence and personal hatred but was unable to establish a clear motive for the crimes.

”It was effectively conceded by the prosecutor that there was no evidence of motive. On the contrary, the evidence indicates a very close relationship between the families.”

He also noted that there were weaknesses in the DNA evidence from what was called stain91 found on Xie’s garage floor.

* In Tasmania, on the much delayed road to justice, the appeal against Sue Neill-Fraser’s conviction for the 2009 murder of her partner Bob Chappell has been put back to August at the earliest, but possibly as late as November.

Another circumstantial case, this long running saga of malpractice, incompetence and lies will go down in legal history as a perfect storm of poor police and forensic work, groundless allegations and a tragically flawed trial in which unchecked prosecutorial speculation built the phoney story no jury acting rationally should have believed. (Echoes of the Pell jury … see below)

Meaghan Vass (fb 2019)

What makes this case special and unique is that everyone knows Neill-Fraser is innocent thanks to the eye-witness who was there when Chappell was involved in a confrontation on board Four Winds – that was Meaghan Vass, who told the world during her interview on 60 Minutes in March 2019 that Neill-Fraser was not there – and whose DNA on the deck supports Vass’ story.

* In South Australia, Derek Bromley was convicted of murder in 1984, wrongfully, in the opinion of several legal experts. His latest appeal (June 2018) floundered when South Australia’s appeal court “fundamentally failed to pay due regard to the rule of law and to the well-established principles governing criminal appeals,” according to legal academics Dr Bob Moles and Bibi Sangha. “The principles espoused in the Bromley decision are not only contrary to established authority but have never before appeared in any legal judgment in Australia, Britain or Canada.”

The key ‘evidence’ against Bromley was an eye-witness statement. The Court of Criminal Appeal was provided with five expert reports as to the psychological state of the eye-witness at the time of the incident. Although known to be psychotic and suffering from hallucinations and delusions on the night of the incident, the Crown told the jury that this did not necessarily make the evidence of his observations implicating Bromley unreliable.

The judges then allowed the Crown to present additional evidence, to show that Bromley was guilty. This evidence consisted of a prior conviction which they said showed Bromley had a propensity to commit that type of offence. If this tactic survives review by the High Court (to be heard), the appeal court would have effectively abolished the right to a jury trial, the right to a retrial, and the right to an effective appeal – all without any statutory or other legal authority, say Moles and Sangha.

Bromley has spent 37 years in prison, more than a decade after he became eligible for parole – because he won’t admit to the crime and show remorse.

* In Victoria, among a plethora of revelations that reflect badly on its entire legal system (eg Lawyer X), the conviction of Cardinal George Pell for historic child sexual abuse has just been quashed 7 – 0 by the High Court (April 7, 2020), making withering criticism of the Victorian appeal court’s decision to refuse his appeal.

“The Court held that, on the assumption that the jury had assessed the complainant’s evidence as thoroughly credible and reliable, the evidence of the opportunity witnesses nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to the applicant’s guilt.”

The cases cited here all contain elements that are symptomatic of the malaise that corrodes confidence in the criminal justice system in Australia. The public face of that system is inscrutable; it is supposed to police itself, the only branch of Government that has that right and that responsibility. But the body of the system is clothed in the black robes of a profession that sometimes betrays this unique status of being answerable to no-one, not even the representatives of the people. And looking at these cases, it’s no wonder …

There are currently two State Chief Justices who continue in office unperturbed, despite the kind of errors that would require frank answers of any other holder of high office.


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13 Responses to Not guilty – but punished by a system we trust(ed?)

  1. Peter Gill says:

    You mention John Quigley in the first case above – the Western Australian one. The Wikipedia entry for John Quigley is worth reading. The treatment of Quigley by police in that link, due to Quigley’s good work freeing Andrew Mallard, who sadly died last year, reminds me of the treatment of Barbara Etter, Jeff Thompson and Colin Maclaren in the Sue Neill-Fraser case.

  2. owen allen says:

    Thank you Andrew for publishing my stuff.
    I reread what I send and am I suicidal?
    I can not handle fighting alone anymore. 30 years since I threw in the spear.
    I have more confidence now more people are coming out.
    This requires a national effort of organisation.
    Bring pressure to Tasmania to co-operate, and Australia conform with worlds best practise with wrongful convictions

  3. owen allen says:

    I have called on the Australian Criminal Intelligence Commission to investigate Tasmania, and reported the indiscretions of the Tasmanian Chief Justice to Australian Govt and media.
    When is Justice ever, on how a judge feels on any particular day.
    This is my question to you.
    Because that was the deal on the day. And a university student was sent to prison for 3 months for stealing library books.
    Yes, 3 months and drug dealers walk.

  4. owen allen says:

    Every National State of Security is watching this space.
    This situation is absurd and a social experiment of how will we react when our innocent sister lives in prison. or any innocent framed, setup up bunny.
    Viva La Resistance.

  5. owen allen says:

    Andrew, re Tasmania. corruption.
    I have to keep this short.
    I moved with family to Tasmania for job. Worked for them in South Australia, they wanted me down there. Staff resigning etc.
    Small town, complained about the neighbours very early starts in semi. Boss warned me to be careful. Sacked, red necking, intimidation, property damage, threats, head on threat on road to my wife, no support from public servants. But eventually 7 years later and it is documented in a submission to the Nixon Enquiry 1997.
    Later assaulted as a taxi driver, police protected local boy, I missed a court, owned a business wasn’t a flight risk and arrested and refused bail. Life crashed, lost everything, learnt guitar and when I didn’t roll over because of my convictions against injustice I was locked up in maximum prison for 7 months for playing guitar in a public place. re breaking a restraining order.
    later they wanted to arrest me for attending a public seminar in the same place on Prison Reform, chaired by Greg Barnes recently appointed a silk.
    I escaped, knowing they wanted to talk to me and I just knew they would have a handful of lies to put me down. I recognised a suit who had punched me in the face whilst I was handcuffed and getting in the back of a squad car after being arrested for harassing police for corruption.
    That issue I was not taken to court for and found guilty in absence without a plea.
    The corruption is so intense they all work together. Police, prison system, judges, magistrates and some lawyers.
    Viva La Resistance.

    • Ross says:

      This is not about you. And thanks for keeping it “short”

      Sadly, you have issues, but you are free, for the time being. Some others are not.

      Cheers, Ross

      • owen allen says:

        Yes Ross, this is not about me. It is about everyone in Tasmania.
        I voice because I have evidence of not a perversion of justice, but a systemically perverted corrupt society. The cronyism, nepotism and corruption is something just called “island syndrome.”
        This needs to be sorted out, it is criminal.

      • Jenny de Vine says:

        There was a police woman friend of Meghan’s mother involved in the initial and ongoing coverup of truth of who killed Bob Chappell according to Colin McLaren. Where is her statement to explain why she didn’t stop an innocent woman going to jail? Why don’t judges care about the truth? More concerned with protection of their mates and their own pensions. Why is justice Kidd still chief justice when he failed to address the evidence identified by the High Court in the Pell appeal? Do we all seek appeals of the appeal court in Victoria now?

  6. John Biggs says:

    On the Neill-Fraser case it is incredible that she has been locked up for 11 years, yet since 2016, the publication of Colin McLaren’s book, a much more plausible story than DPP Tim Ellis’s fabrication (“a wrench or it might have been a screwdriver …” God save us!) has emerged. Indeed we now know who did it — yet nothing has been done except doubling down by the present DPP. The AG won’t even allow release on bail from prison during the COVID crisis, which health authorities have urged for “safe” prisoners. The case seems to be tangled with legalities not with substance and evidence. This must be resolved in all cases, and to hell with face saving from then Premier Hodgman down.

    • Ross says:

      John Biggs,

      So true. How can the Hodgman folk now enlist those who would craft their autobiographies, past and present. No doubt the scribes are lining up to gouge the riches therein. Lots to tell there. The “Hodgman Dynasty”.

      And who gives a stuff to a female incarcerated? No feminist voice anywhere to be heard. Nasty folk who should be upfront, but totally absent.

  7. Brian Johnston says:

    You could include the Peter Falconio case on your list. No body.
    Joanne Lees has to know, she was there. She has to be lying.
    That Bradley Murdoch was stitched up.
    Murdoch is surely innocent.
    Why did top cop Colleen Gwynne retire from the force.

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