New Year hopes for old injustices

Andrew L. Urban.

Should we call them mis-convicted murderers, perhaps, those poor unfortunate souls who have suffered the catastrophe of a wrongful conviction? As we prepare to leave 2020 behind and look across time into 2021, we must hope along with them that the criminal justice system will correct those wrongful convictions, in many cases far too long after the verdict was delivered. 

There will be some reading this who will want to correct me and point out that these people are still convicted murderers, their convictions not having been overturned; I should not put their cases forward as wrongful convictions. While that is technically and legally correct, I believe (as do many others, including lawyers and academics familiar with these cases), that based on the evidence, it is justified to doubt their convictions. The law will – we hope – catch up. So why and how did The System get it so wrong in these cases?

Why? Because reforms that would help reduce wrongful convictions have not been implemented. How? By a combination of investigative failures, bad forensic evidence (and junk science), prosecutorial overreach (to put it kindly) and judicial error.

THE SNAPSHOT

*An application on behalf of Derek Bromley for leave to appeal to the High Court is likely to be submitted in the New Year – probably in January 2021. Bromley’s 37 year old murder conviction (and failed appeals) does not show the SA legal system in a good light; none of these cases reflects well on The System.

*After several delays, some due to the travel restrictions imposed during the pandemic, Sue Neill-Fraser’s final appeal against her baseless and poorly tried 2010 murder conviction will be heard in Tasmania’s Supreme Court beginning on March 1. The body of Bob Chappell, her then partner of 18 years she was accused of murdering, has never been found.

*Robert Xie’s appeal against his (unconvincing) 2017 conviction of brutally murdering five members of his wife’s family in 2009 was heard in June/July 2020. The three judges have given no indication of when they might deliver their decision/s. Only hope and optimism prompts us to imagine it will be in the first half of 2021, and that it will be favourable to him.

*Kathleen Folbigg’s complex new appeal will be heard in February, challenging both the conviction and the recent Blanch enquiry. The 2003 trial was based on the circumstances that Folbigg was the mother of four children and all the children died. The medical evidence relating to the causes of the deaths of her four children at her trial was inconclusive. The Crown’s case was based by implication on the now discredited theory of British paediatrician, Professor Sir Roy Meadow. There is now compelling new evidence of genetic defects in respect of two babies not previously available and which has been peer reviewed by over twenty international experts in the field.

*Robert Farquharson is out of options – almost. Convicted of killing his three young boys by drowning them in a dam, he was sentenced to life imprisonment with no minimum term. He has always maintained his innocence. He claims he had a coughing fit and blacked out, losing control of the car, which veered into the dam. He couldn’t save the kids. One of the saddest stories you’ll ever read is Road to Damnation, a book by scientist Chris Brook who examines this tragedy in scientific terms and concludes that the evidence does not support the conviction. His former lawyer, Luke McMahon, is planning to mount another appeal next year under new state laws, based on material revealed in Road to Damnation.

THE BIG PICTURE

Derek Bromley – no reliable evidence & a rogue appeal court
Derek Bromley may be entitled to think that the criminal justice system is biased against him; having wrongly convicted him 37 years ago, it still won’t let him go. It has even defied the rule of law to keep him incarcerated …. read on.

Derek Bromley was convicted of murder in 1984. It was said that he assaulted a person and drowned him in the river in Adelaide. The eye witness who testified against him was known to be psychotic and suffering from hallucinations and delusions at the time of the incident. The Crown told the jury that his testimony implicating Bromley was nevertheless reliable.

Then came the autopsy report, prepared by Dr Colin Manock, who claimed that Bromley had drowned the victim. Bromley was convicted.

In the latest appeal, the court was provided with three expert reports on the forensic pathology evidence given by Dr Manock. All the experts agreed that the diagnosis of death by drowning was wrong. They also agreed that because Dr Manock’s autopsy had been fundamentally inadequate, the cause of death must be classified as ‘undetermined’. They also agreed that the cause and timing of the injuries which Dr Manock said were consistent with an assault at about the time of death was also wrong.

Just when Derek might have thought he was vindicated in refusing to admit guilt and thus remain in prison well past his parole eligibility (2008), the Appeal Court went rogue, in layman’s terms. In legal terms, it reads like this: 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 appeal court determined that the ‘interests of justice’ requirement in the new right of appeal meant that the court had to ensure the acquittal of the innocent and the conviction of the guilty. This meant that it should allow the DPP to present additional evidence to the court on the appeal which would be ‘extremely probative of the appellant’s guilt’. Evidence of a prior conviction was then admitted in order to establish that Bromley had a ‘propensity’ to commit the type of crime in the instant case – even though accident, natural causes and suicide, according to the experts, could not be excluded.

The new evidence, the court said, rendered the Crown and the appellant’s expert evidence on the appeal less ‘compelling’ and therefore insufficient for the grant of leave to appeal. The Court of Appeal also said it was ‘quite correct’ for defence counsel not to raise issues ‘critical of Dr Manock in a broader sense’.

Those issues included the following vital facts: the state had given sworn evidence in legal proceedings prior to 1978 to say that Dr Manock was not qualified to certify cause of death, and he had no expert qualifications. That should have disqualified Dr Manock from giving evidence at Derek Bromley’s trial. Or any other trial.

In the words of the Attorney-General of South Australia to the media on 2 July 2018: “Dr Manock’s evidence as an expert was relied upon. It was completely unreliable, in fact manifestly so, for the purposes of making it simply unsustainable to have a conviction be maintained. Clearly, this was a person who for whatever reason had been appointed, you know, decades before who was discredited and dismissed and his evidence wholly, you know, rejected in that way.”

The application for leave to appeal to the High Court in January will require a response from the DPP – Martin Hinton, previously Justice of the Supreme Court of South Australia (2016-2019). Will he abide by the rule of law that requires Bromley to be freed, his wrongful conviction quashed?

Sue Neill-Fraser – murder by the prosecution
It was the 2013 Eve Ash documentary, Shadow of Doubt, that lured me into the world of wrongful convictions. Eve Ash had spent a couple of years investigating the investigation … and the Tasmanian police did not come out as a proficient force. Sue Neill-Fraser had already been convicted in 2010, but the more I pursued the story of her case, the more troubled I became. There was no evidence against her. Legendary defence barrister Chester Porter QC had the same response. So did several other legal eagles. It was the Neill-Fraser case that inspired the title of my book, Murder by the Prosecution (Wilkinson Publishing), a collection of wrongful convictions.

To recap: A middle aged man (Bob Chappell) disappears from his yacht (Four Winds) overnight, never to be found. Police charge his female partner (Sue Neill-Fraser) with murder. At the subsequent trial, the prosecutor, contrary to the law but unchallenged by the judge, speculates freely on how she might have murdered him (perhaps with a wrench) and dumped his body into the dinghy and then in Hobart’s Derwent river, but offers no evidence to support any of this. The accused is convicted and jailed for 23 years.

The transcript of the trial shows that:
* In the absence of the jury, the DPP admits to the judge that he ‘never believed’ there was any of Chappell’s blood in the Four Winds dinghy, but talks to the jury about the blood testing anyway.

* In the absence of the jury, the DPP admits to the judge that he has no evidence to support his speculation that a fire extinguisher was used to weigh down Chappell’s body, but puts it to the jury anyway – and the judge refers to it in his summing up as well as in the sentencing, as if it were proven evidence.

* In his closing address to the jury, the DPP repeats his speculation about how the murder was committed by Neill-Fraser but admits he doesn’t really know what was the murder weapon she used. The judge allowed it.

There are several other problems with the trial, including forensic evidence that was led which is not admissible and the failure to properly investigate the DNA that was found on the yacht. The DNA was dismissed by the prosecution as a ‘red herring’. It was matched to then homeless 15 year old Meaghan Vass, who told the court in a short appearance that she had not been on the yacht. The defence wanted to recall her but the judge refused permission.

A decade later, Vass admitted (on 60 Minutes) that she had indeed been on the yacht, had been terrified by a fight involving Bob Chappell and her two male companions. Sue Neill-Fraser was not on board. Vass is now hoping to make amends and testify to that effect under oath, at the upcoming appeal. The appeal will be heard by three Tasmanian judges. Their boss, now the Chief Justice, was the trial judge. Hmmm …

Robert Xie – a spotless massacre
A gullible media and a jury bamboozled by a practiced prosecutor accepted the Crown’s assertion that mild mannered former ear surgeon Robert Xie from China bludgeoned to death five members of his wife’s family in their beds without leaving his DNA or generating any other evidence that links him to the crime.

To recap: Robert Xie and his wife Kathy have always maintained he was in their bed beside her at the relevant time on the 2009 night of the Lin family murders, for which he was sentenced to life imprisonment without parole in 2017. As the three learned judges continue to consider his appeal (heard mid 2020) against the five murder convictions, they will come face to face with the single most crucial aspect of the case: Xie’s alibi – which the Crown did not disprove.

And yes, there is the matter of the DNA – not Xie’s at the crime scene, of which there was none. Instead, in a stretch by the Crown to implicate Robert in the crime with a tiny speck of material with DNA (not blood and never scientifically clarified) on his garage floor – 200 metres from the Lin family home where the murders took place. The garage where the two families often played badminton …

The Crown was left hoping to rely on the testimony of Witness A, the jail snitch who was trying to entrap Xie with an indecipherable covert recording. The jury bought the Crown’s case and convicted him.

Kathleen Folbigg – junk science as evidence
Did she really kill all four of her children? Is she a monster – or was she monstered by a criminal justice system that failed to recognise junk science? It is a case of the latter, according to Michael Nott LLB GDLP, an Australian lawyer who is an advocate for mothers falsely accused of munchausen syndrome (factitious illness) by proxy and the cot death theory. The following are edited extracts from his report on the Folbigg case:

“”- The prosecution was based by implication on the now discredited theory of British paediatrician, Professor Sir Roy Meadow. Meadow’s hypothesis is that in multiple unexplained cot deaths in the same family: one (infant) death is a tragedy, two is suspicious and three is murder. Meadow’s rule relied upon an untested hypothesis by two American pathologists, Dominick and Vincent Di Maio, who referred to it as ‘the rule of three.’

Dr Vincent Di Maio explained: “when you get a first case that appears to be sudden infant death syndrome (‘SIDS’) … treat it as SIDS … [i]n the second case, we know that in all probability it’s not a SIDS. It’s a homicide … you always give them the benefit of the doubt … than to falsely accuse them … [i]t’s when you get to the third one, then you’ve gone beyond reasonable doubts and you have to call it a homicide.”

Meadow’s ‘rule of three’ hypothesis was criticised and discredited by the UK Court of Appeal in several cases. In the UK case of Cannings, their Honours stated ‘if that is the fashion, it must now cease.’ The ‘rule of three’ hypothesis is without scientific backing.

It should not have been allowed. But the question remains: what may have caused the deaths of the children, or at least one or two of the children? Perhaps we need to consider whether overwhelming bacterial infection caused the deaths of some of the Folbigg children. It has been known that bacterial infection can contribute to the sudden and unexpected deaths of infants since the original Folbigg trial in 2003 and the appeal in 2004.

Cot death expert Professor Paul Goldwater writes that studies show that bacteriological findings at autopsy have been found in cases of ‘sudden infant death syndrome’. Professor Goldwater states serious consideration should be given to recognised pathogens, especially Staphylococcus aureus, found in normally sterile sites, which may have a contributory role to an infant’s death. Professor Goldwater says there is now a strong view that if an infant dies unexpectedly, it is more likely to be carrying pathogenic bacteria than a healthy baby.

Professor Blackwell noted that there was evidence of infections in two of the Folbigg children: Sarah and Laura … which cannot be ignored as a potential cause of death. Further, the post mortem report for Patrick Folbigg did not provide any evidence to support a finding of an unnatural death according to Professor Goldwater. He said the autopsy findings for Patrick, who died aged eight months, were compatible with SUDI. He refers to the key findings that Patrick had a larger than normal brain for his age, including abnormal brain grooves along with cystic degeneration. Professor Goldwater says this is compatible with pathology often found in cerebral palsy …

These expert opinions have never been presented to a court. – “”

 

But they may be very soon; an appeal hearing (before three judges) is scheduled for late February in which Folbigg’s lawyers are expected to present compelling new medical evidence that undermines the conviction. It will also address what are seen as shortcomings in the administrative enquiry conducted last year by former Chief Judge of the District Court, the Hon Reginald Blanch AM QC, concluding that “the investigations of the Inquiry have … produced evidence that reinforces Ms Folbigg’s guilt”

Well, maybe not …. the much publicised Folbigg diary entries, presented by the prosecution as its best evidence, and relied upon by Blanch, are capable of different and innocent meaning – if seen in their proper context, according to her defenders.

Then there is Robert Farquharson, whose 2012 appeal failed – but 2021 may bring him an unexpected gift, thanks to an important new book, Road to Damnation, in which Chris Brook takes the reader on a gripping journey to the darkest reaches of human experience – the drowning of three children – when it intersects with the law. Brook places the case of Robert Farquharson – their father – at the interface between law, science, society and psychology. (See our coverage of Road to Damnation)

Farquharson claims he blacked out after a coughing fit and lost control of the car, which veered off the road into a dam and sank. He escaped but could not save his sons. The prosecution claimed he drowned his sons deliberately, by driving into the dam.

In 2007, Farquharson was convicted and sentenced to life imprisonment with no minimum term. However, he maintained his innocence and appealed his sentence. On 17 December 2009, he won the right to a retrial, due in part to the key witness for the prosecution, Greg King, facing potential criminal charges himself at the time of the original trial. Robert was released on bail on 21 December, but was again convicted of murder on 22 July 2010.

But, says Brook, there was just not enough evidence at the scene to conclude that someone had been steering the car.

Based on material in the book, Robert’s former lawyer, Luke McMahon, is planning to mount another appeal next year under new state laws.

CLOSING COMMENTS

I know several barristers, judges and lawyers (and a couple of cops) who are admirably decent and honourable, keen to see justice delivered and who believe that a wrongful conviction is a catastrophic failure of the justice system.

I also know that the legal system operates under its own oversight. It is supposed to self correct when errors occur. But there is no sense of urgency – even if we accept that there is a will to do so, albeit with little evidence of that. Judges and prosecutors enjoy the protection of professional immunity. Accountability is virtually non-existent. The appeals systems are clunky and provide little support to those wishing to avail themselves of redress.

A national Criminal Cases Review Commission would go some way towards reducing wrongful convictions – and reducing the delays inherent in current processes.