The criminal justice system seemingly cannot reform itself

Andrew L. Urban.

What has the criminal justice system learnt from the wrongful convictions decades ago of Lindy Chamberlain, Derek Bromley, Henry Keogh, Andrew Mallard, Gordon Wood and many others? With at least three murder convictions currently under a cloud (Neill-Fraser, Xie, Folbigg), and the near miss of the Singh* case, exhibiting failures that were contributing factors in past convictions, we have to conclude that the answer is: nothing. 

Perhaps the most ironic and depressing aspect of the lack of reform in the system is the fact that the reforms needed are all well known. For example, they were articulated at the Symposium on Miscarriages of Justice, Flinders University, Adelaide, South Australia, Nov. 7 & 8, 2014. As we reported at the time, pursuing convictions at the expense of catching the actual culprits of serious crimes, grave errors at trial by prosecutors and judges alike, shocking failures of forensic evidence and a failure to learn from historic cases are some of the issues that brought together Australia’s pre-eminent lawyers and legal academics in the field (and international guest Prof. Kent Roach from the University of Toronto), wanting to improve Australia’s inadequate criminal appeals system and reduce the number of innocents sent to jail for lengthy – unjust – sentences.

Keynote speaker Professor Kent Roach, in comparing the Canadian and Australian experience, said that “there was a greater acceptance of wrongful convictions being a reality in Canada and while Australia is starting to engage in reform, it is facing continued legal and political struggles.”

According to Civil Liberties Australia, at any one time “there are probably 1000 prime agitators – lawyers, academics and students, journalists and editors, film makers, playwrights, composers, artists, family members and friends, scientists, civil rights activists. They are fighting 50 or more current travesties of justice in Australia, where an innocent person is in jail, or about to be, who shouldn’t be.”

We have published the areas of reform that the Symposium identified a couple of times since, but the problem is having a system run by practitioners willing to reform; because the legal system is self correcting. In theory …

“Correcting the criminal justice system is not a defence cause, but a system-wide, even community-wide cause. The goal is not just to acquit the innocent, but also to identify and convict the guilty,” wrote Keith A. Findley (University of Wisconsin) in Learning from Our Mistakes: A Criminal Justice Commission to Study Wrongful Convictions

no enquiry into causes of error

“All have a stake in this enterprise. But there is no mechanism at present in most jurisdictions for undertaking this analysis of the system, or even for taking a hard look at any particular wrongful conviction to determine what might have gone wrong. In this regard, the criminal justice system stands almost alone. As Barry Scheck, Peter Neufeld, and Jim Dwyer have written in their book, Actual Innocence, there are grave consequences when an airplane falls from the sky; an automobile has a defective part; a patient is the victim of malpractice, a bad drug, or an erroneous lab report. Serious inquires are made: What went wrong? Was it systemic breakdown? An individual’s mistake? Was there official misconduct? Can anything be done to correct the problem and prevent it from happening again.

“But not so for the criminal justice system. Only the criminal justice system exempts itself from self-examination. Wrongful convictions are seen not as catastrophes but topics to be avoided. Although a wrongful conviction and lengthy prison sentence, or worse, a death sentence, is a human catastrophe of almost unparalleled proportion, ordinarily no inquiry is made into the causes of the error. Often, the order setting aside the conviction is a one-line order entered in the trial court. Occasionally, an appellate decision addresses the errors in the case. But almost never is there a searching inquiry to determine what led to the errors, and how they can be prevented in the future.”

This is so all over the Anglosphere. Continents apart, the fate of innocents is in the hands of a system that is clearly not fit for purpose without significant reforms in the fields of police culture and investigation, forensic evidence and prosecutorial and judicial behaviour.

Nora Wall (formerly Sister Dominic) (born 1948) formerly of the Sisters of Mercy was wrongfully convicted of rape in June 1999, and served four days of a life sentence in July 1999, before her conviction was quashed. She was officially declared the victim of a miscarriage of justice in December 2005. The wrongful conviction was based on false allegations by two women in their 20s, Regina Walsh (born 1978) and Patricia Phelan (born 1973). Walsh had a psychiatric history and Phelan had a history of making false allegations of rape prior to the event. Phelan subsequently admitted to having lied.

Wall was the first woman in the history of the Irish State to be convicted of rape, the first person to receive a life sentence for rape and the only person in the history of the state to be convicted on repressed memory evidence. Her co-accused Pablo McCabe was a homeless schizophrenic man. In relation to one of the two rape allegations, the defence showed that McCabe could not possibly have been there on the date in question.

Andrew Mallard was convicted of the murder of Perth jeweller Pamela Lawrence in 1994 after eight unrecorded hours of police interrogation and a brief recorded “confession” that followed. In 2005, the High Court was advised that the prosecution and/or police had withheld evidence which showed his innocence, and overturned his conviction. Mallard was released from prison. A “cold case” review of the murder conducted after Mallard’s release implicated Simon Rochford as the offender and Mallard was exonerated.

Gordon Wood was convicted in 2008 of the murder of Caroline Byrne, whose body was found early morning on June 8, 1995, on the rocks at The Gap, a notorious suicide spot on Sydney’s Eastern coast. In 2012 the Court of Criminal Appeal set aside his conviction and entered a verdict of acquittal. The Chief Justice made it clear in his judgement that even the most basic elements of the case had failed to be established. “I am not persuaded that Wood was at The Gap at the relevant time.” He concluded that the verdict of the jury could not be supported having regard to the evidence.

The main witnesses for the prosecution were the investigator, Detective Inspector Jacob, and the expert witness, Assoc. Professor Rod Cross. They had worked closely with each other, and, according to the Chief Justice, they had presented evidence which was either inadmissible or unreliable.

The quality of the investigation was a particular concern. Because it was thought to be a suicide, the police took no photographs of the scene at the time of the death and the spot where the body was located was not recorded at that time. Subsequently, the precise location of take-off and landing points was to become the central feature of the case.

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 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.

All five experts on the appeal said that this was now known to be incorrect. Current knowledge about schizo-affective disorders has advanced significantly since 1984 (thus satisfying the ‘fresh’ test). The Crown’s expert emphasised that it was now known that the cognitive disorder was more fundamental than had been represented at the time of the trial. Because of that, it was his view that nothing the witness had said about his ‘observations’ could have probative value. He added that the judge’s instructions to the jury were inadequate to inform them of the witnesses’ true condition. The prosecution refused to call their own expert on the appeal so he had to be called by the defence.

The appeal court was also 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

*Kulwinder Singh was lucky to escape a conviction for murder when his first trial ended in a hung jury. His wife Parwinder had died after setting herself on fire (2013) – not intending to kill herself but to scare him. Police charged him with her murder. In his second trial (March 2021), his defence barrister, Margaret Cunneen SC, told the jury: “Now, there is simply no physical or forensic evidence that supports the Crown case. It is not that there is no evidence, it is not that there is no forensic evidence – there is plenty of forensic evidence and it all points to the only other possibility besides Mr Singh’s guilt; that, for her own reasons on this day, she set herself on fire.” Parwinder herself had called 000, before she set herself alight, but police and prosecution were convinced of his guilt – absent the evidence.

The table below shows results of research by Griffith University into factors contributing to wrongful convictions in Australia. It is a good place to start planning reforms, targeting the areas most prone to such miscarriages of justice – and working through the list. Who will have the courage and the authority to start?