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?

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11 Responses to The criminal justice system seemingly cannot reform itself

  1. Ms. Sarah Abercrombie says:

    The Justice System. Has learnt NOTHING. My experience is, they just keep doing the same thing over and over again. I’m a Female, witnessing ‘females within the Legal Sector, using “it” for their own presumptuous, greedy gains. Experienced that two weeks ago. Keeps them housed, in a job, with an income. Female Foes.

  2. Jerry Fitzsimmons says:

    Staggering comments from all above, including the actual report leading to them. “Ignorance breeds contempt”. So close, yet I firmly believe ‘silence breeds contempt’. I empathise with anyone who goes through any investigative system and that includes the politicised employment system where there are courts, commissions, tribunals, appeals, let alone the criminal justice system which holds the power of persuasion, usually financially imposed persuasion, over factual evidence. Some of your readers Andrew say they have experienced ‘the system’ first hand and have lived with results based on, in some cases, even successful appeals, yet they remain damaged. The silent remain silent because for them the consequences of not remaining silent may be life changing. For someone to ignore is not to say they are ignorant and, please excuse the semantics but, it’s important to observe how often many choose to remain silent knowing fine well that the facts they have access to would expose ‘the system’ that they may even be a part of. While basic survival is instinctual we must continue to engage with an informed account of wrongful doings, and when possible, do so in a transparent manner. We are all fallible, that’s life, but seeking accountability will attempt to keep “The bastards honest”. There are many descriptions for those who choose the path of silence and some of those people are very private and honourable. However, public figures just simply cannot use privacy as a cop out. They are elected or appointed to act with integrity, the highest of integrity that is.

  3. owen allen says:

    Now I have to declare Poppa and everyone.
    The Evil is such, perpetrators are protected, innocents are charged and convicted to balance the scales of injustice.
    WTF are we going to do?

  4. owen allen says:

    PS Apparently Andrew Wilkie Federal Member of Parliament, Independent, is attempting to call this out. The 90 year law of silence.

  5. owen allen says:

    On the other side, hear this. To verify talk to John Laws , who is researching.
    A person on radio said with conviction, there is a law in place where politicians can not be investigated or charged for child sex offences, for 90 years.
    This will escalate as it should.
    And a beautiful woman 89 years old talked with John Laws for some time about her abuse as a child, and her 2nd book will be released soon.
    Her first book is international and she has been counselling for years.
    Her story is horrific to say the least.
    Evil people, and horrendous evil corrupt laws.
    I just googled the title to be correct. Daughter of the Razor.
    God Bless Her Forever.
    I stand to be corrected waiting.

  6. Poppa Maddo says:

    Within every Agency affiliated with the overall “English Adversarial Justice System” wherever it is relied upon by governments to deal with crime in their communities,there are psychopaths, sociopaths, misandrists, mysogynists, inept individuals, users and abusers, loafers, and individuals with every known kind of negative assumptive character trait. Between them they wreck the lives of countless innocent citizens. There number is indeterminate. Also and as Andrew Page has pointed out, we lack outstanding Reform Champions. IMHO we need a Champion for Justice Reform in each and every country wherein “English Adversarial Justice System” prevails.
    I have spent several years trying to drum up support to create an International Database of Victims of False Allegations (VFA)both public and political. Not one person has stepped up to assist me. The majority public have never had to experience being falsely accused, arrested, put to trial for a crime they did not commit, found guilty and imprisoned having lost everything. Ignorance breeds complacency as does the fake new dealt out by politicians that they are WINNING the fight against crime.
    I know what it is to be a VFA as does my son. I won out on appeal. He ended up losing 6yrs of his life, his home, his freedom and still suffers PTSD from it all.
    The current Justice system is a crock of shite in that a tunnelvisioned approach governs everything its operatives think, say and do.
    No point conjecturing as to how the Police would react if I were to go to them and try to lodge a formal complaint of knowing that I am in imminent danger of being Falsely Accused of a crime I did not commit and need them to protect me from it.
    Much like being at risk of harm. Until you have been been bashed half to death they won’t even listen to you “for lack of evidence”. But when it comes to a complaint of sexual abuse…………Bam ! out they come with all guns blazing, ready to believe every word even of a False Accuser. A VFA is treated like shite. I know, it happened to my family. The Justice System “Establishment” needs complete overhaul and those within in and those lording over it in Government Separation of Powers status don’t give a damn. They will however close ranks around any of their own kind who end up being accused. All that needs to be said is , “Oh….they have said they have been Falsely Accused”. e.g. Attorney General Christian Porter. As far as the In-JUSTICE System and its affiliates and the Government is concerned, “The public can go get knotted mate !”

  7. John Biggs says:

    The Adversarial system itself virtually requires DPPs to confirm the preliminary police findings. If they don’t, even if it means concocting fanciful stories without any solid evidential backup, it they will be regarded as weak. It locksteps the justice system with the police. The only problem then is to convince the jury (the judge is most likely already on their side) with whatever histrionics and lies they can use to mask the implausibility of the narrative they are weaving. It’s a systemic problem. The investigative system sets the proper agenda then the trial proceeds.

  8. Peter Martin says:

    It is patently obvious that the legal fraternity are hell bent on getting convictions at all costs just for their own self gratification.

    • andrew says:

      I know it looks like that and I often feel the same, doing what I do…but I must in fairness point out that there are some really decent professionals in the system, too. I deal with a few …. the challenge is for a champion to drive reform, who has the authority and credibility to lead.

      • michael allen says:

        Yeah Andrew, there are professionals with heart and morals.
        I wouldn’t be here today without the help of a Very Senior Officer of Law whom I trust absolutely. And the Cronies of such person.
        It is happening.

  9. Rodger Warren says:

    Hi Andrew
    I see no sign of any politician wanting to change the status quo.
    That does not mean we stop trying.
    It just means we have not yet found the trigger for change.
    The Wrongful Convictions Report is a great way to keep unsafe convictions alive and I thank you again for its creation.
    Take care
    Rodger Warren

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