Separation of powers – the downside

The ancient proverb, ‘Physician, heal thyself,’ can be repurposed to our criminal justice system, argues ANDREW L. URBAN. The separation of powers should not be a barrier to much needed reforms, but politicians are as cowardly on the subject as the justice system. 

Let’s face it, the justice system is not good at policing itself, at reforming itself, at correcting  wrongful convictions – or admonishing errant prosecutors or judges. The separation of powers, while obviously necessary, has a downside: it acts as a shield against ‘outside interference’…. unwanted political pressures on one hand, needed reforms on the other; if the political class had the guts for reform…

You don’t have to be a legal eagle to see it: “Australia’s criminal justice system is broken and it needs massive structural reform. It’s time for the High Court to convene a national summit on how we fix a system that has not fundamentally changed since the Magna Carta in the 13th century,” wrote The Daily Telegraph’s Brisbane-based Peter Gleeson (Feb. 22, 2022).

Griffith University research

There are reforms that have already been well documented that could improve the administration of justice, reduce the incidence of wrongful convictions and assist in correcting those that do occur in a more timely, more humane – and more just – manner. They are all known to the legal profession, but the legal profession is not acting on them. A Criminal Cases Review Commission, one that could be effected by the political process, is also known by the Federal Attorney-General’s department, which over several years and three Attorneys-General, has consistently refused to act on it: George Brandis, Christian Porter, Michaelia Cash.

That is despite respected figures who have called for reform, including former High Court judge Michael Kirby, Victoria’s Attorney-General Jill Hennesy and Justice Maxwell (see below), as well as leading forensic pathologist Professor Stephen Cordner, legal academic Dr Bob Moles of Flinders University – and some less publicly known figures (this writer included).

Then there was this: “The Australian Academy of Science issued a strongly worded statement (24/3/2021) immediately challenging the Court of Appeal’s rejection of Kathleen Folbigg’s appeal, re-stating “there are medical and scientific explanations for the death of each of Kathleen Folbigg’s children.”

The separation of powers restricts the launch of any reform from ‘outside’. Some within the profession know reforms are needed, but are hamstrung by what we can call professional etiquette: another way of putting it ‘don’t rock the boat’. But to be fair, a move for reform takes courage – and needs the cooperation of legal institutions.

Some of the most needed reforms are contentious, not least in the area of forensic science, which is a significant part of police investigations and a jealously guarded domain of the police/prosecution nexus.

The clearest example of the (undesirable) possessive relationship of police to forensic labs was on show in recent years when Dr Bob Moles wrote to the Forensic Science Services of Tasmania with concerns over their evidence provided to the court in the Sue Neill-Fraser trial, he received a dismissive reply from the Assistant Police Commissioner. So much for the independence of forensic science labs.

On September 10, 2019, we published extracts from a peer reviewed paper by Chris Brook in the Australian Journal of Forensic Sciences, which examines the case of Joby Rowe and finds a man was put in jail based on junk science, not scientific evidence. Brook asks: “Should forensic ‘science’ be required to actually have a scientific basis? Should scientific ‘reliability’ be explicitly required within the Australian legal system? Or should it simply follow a model of appealing to authority, allowing well qualified forensic experts to provide opinions that lack sufficient evidentiary basis?”

On October 10, 2019, Liam Mannix of The Age reported that Victoria’s Attorney General, Jill Hennesy, is calling for “an immediate national review of forensic evidence over fear flawed police forensics may be putting innocent people in jail.” The subject will be on the agenda at the national Council of Attorneys-General meeting in November. The call for an inquiry comes after The Age revealed senior legal figures including Chris Maxwell, president of the Victorian Court of Appeal, had lost confidence in the accuracy of forensic science.

The investigation was cancelled 16 months after it was announced, before a team of top legal, forensic and scientific minds could conduct any significant work or develop a reform plan. It was quietly shelved in May 2021 after the national cabinet downsized the Council of Attorney-Generals and restricted its focus to the “national priorities” of family violence, protecting older Australians and defamation law reform. National priorities evidently do not include ensuring fair trials.

As long ago as 1986, a promising young lawyer won the Law Society’s Young Solicitors Essay Competition with “Forensic Science – the new trial by ordeal?” – a 7,400 word assessment of the use of forensic science in the criminal justice system.

Early in his essay, he noted: “In recent times we have seen complex and scientific evidence being presented in trials and resulting in verdicts that have caused unprecedented comment and concern throughout the community. It surprises me that most of the concern and comment has been focussed on whether the jury is the appropriate forum, thereby allowing the scientific evidence and our systems treatment of it to escape close scrutiny.” That was 36 years ago… hardly the blink of an eye, yet the needed reforms his essay identified remain needed.

The young solicitor was the lawyer for the Chamberlains: Stuart Tipple. Remember the dingo? (See below for snapshot of Chamberlain case)

One key issue he raised remains an obstacle to the fair trial: “Considerable problems exist for any lawyer preparing to meet a Crown case based substantially on scientific evidence. He must firstly obtain the services of scientists who are willing to become involved, give evidence in Court and even more importantly be able to explain their evidence in a way that a jury will understand and accept.

“Recent cases have highlighted the need for a completely independent laboratory to be set up employing scientists who can be retained by the Defence to advise and to carry out testing and thereby gaining the experience and expertise to present the Defence case on at least an equal footing with Crown experts.”

This would give practical meaning to the presumption of innocence.

“Without this facility it is impossible to ensure that the scientific evidence placed before any court will be properly tested or that lawyers receive appropriate advice to test it. A recent study on identification evidence concluded:

‘The crucial factor affecting a juror’s evaluation was the amount of confidence displayed by the witness. Jurors are inclined to believe witnesses who are more confident than those who had less confidence.’

“Although this study was directed to identification evidence I believe it to be equally applicable to a jury’s evaluation of a scientific witness.

“The Crown has at its disposal unlimited resources to not only bring experts from overseas but to also maintain a monopoly on the qualified forensic scientists engaged in day to day forensic investigation. Consequently, Crown forensic witnesses are generally more experienced in giving evidence before a jury. No such facility is presently available to the Defence.”

Nothing has changed, 36 years later.

Is there such a thing as absolute scientific Truth? Or, in any individual instance, is the particular “scientific Truth” merely a contemporary and personal and quite ephemeral view point?

Noted Tipple: “This problem is well illustrated in a recent article which observed: “…even the best methods can be improperly used. One of the best examples of both the proper and improper use of the scientific method involved an attempt to settle, once and for all, the question of whether living things could spring up from non-living matter – spontaneous generation. Belief in spontaneous generation was founded on observation … “inaccurate observation”.

nonsense disguised as evidence

“By the 1800s, scepticism regarding spontaneous generation was growing among a few scientists, particularly since invention of the microscope had revealed the existence of bacteria. By the middle of the 19th century some biologists concluded that spontaneous generation was nonsense and were ready to prove it. Foremost among the sceptics was Louis Pasteur. He was challenged by another eminent scientist, F.A. Pouchet. Both Pasteur and Pouchet conducted experiments. Both used scientific method and scientific apparatus. Pouchet’s tests with various substances “proved” that life sprang up spontaneously; Pasteur’s proved the opposite. How could this be possible? Well, Pasteur completely sterilised all of his materials in boiling water; Pouchet did not. Pouchet’s experimental apparatus did not prevent micro-organisms and dust particles in the air from reaching the experimental substance, while Pasteur succeeded in devising an apparatus that excluded air.

“The point is, both were using the scientific method of experimentation, observation and logic – but one used it correctly and the other did not. Pasteur produced evidence; Pouchet produced nonsense disguised as evidence.

“Nonsense disguised as science can be introduced and argued against science and a jury can be forced to make a decision between the opposing views. Imagine if a jury had been asked to determine the opposing views of Pouchet and Pasteur?

“The jury may well have accepted the evidence of Pouchet merely because he appealed to them and they found his explanation easier to understand.”

I began this column decrying the flaw in the separation of powers that shields the justice system from oversight (also potential reform) by elected politicians. But the political class has ignored the many urgings and complaints to do the only things it can do – namely review all forensic services and establish a CCRC structure. That’s not due to separation of powers: that’s failure of moral responsibility.

Lindy Chamberlain – a catastrophic failure of the legal system
“A dingo took my baby!” became a derisive joke in the early 1980s, mocking Lindy Chamberlain, the mother who claimed to have seen a dingo leave the tent where her baby Azaria was sleeping, during a family barbecue one night at Uluru in the middle of Australia. The subsequent police investigation and her trial for the murder of her baby, Azaria, became the most famous case of a wrongful conviction in Australia.

Armed with circumstantial evidence and watched by a mesmerised, judgemental Australia, the prosecution relied on forensic testimony that identified as blood splatter the material found splashed under the family car’s dashboard. Lindy had cut the baby’s throat with a pair of scissors, claimed the prosecution … It was six years after the baby’s death that more thorough forensic tests were undertaken. The material turned out to be sound deadener.

Chamberlain was convicted of murder on October 29, 1982; her appeals to the Federal Court and High Court were both dismissed. In February, 1986, after the discovery of a baby’s matinee jacket (on which her defence relied but which the police believed did not exist) partially buried in an isolated location, she was released. A year later her conviction was quashed. In 1992 the Australian Government paid her $1.3 million in compensation. In 2012, the fourth coronial inquest found that Azaria had died as a result of being attacked and taken by a dingo. Coroner Elizabeth Morris apologised to the Chamberlain family while an amended death certificate was immediately made available to them.

Forensic evidence has continued to be unreliable, police investigations continue to suffer from tunnel vision, circumstantial cases in particular continue all too often to result in wrongful convictions. And the process of correcting errors continues to be slow, cumbersome and weighted against the convicted.

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27 Responses to Separation of powers – the downside

  1. WHALENSKY says:

    Brandis Porter and CASH– SAY NO MORE– Read Porters remarks when releasing Darryl Beamish after 15 years ( he did get a death sentence) . A completely manufactured signed CONFESSION as result of torture ! This typical HUNK OF POLICEMANSHIP was made Police Commissioner ! It’s nyot uncommon in Australian States to be not able to appoint anyone COMMISSIONER from within–all too smelly–the justice system in the WA ( Porter) remarked that there was nothing wrong with a Lovely Policeman writing out a confession in Police TALK ? A bit sad being born DEAF and MUTE –But to then fall into the HANDS OF THE DOGS VOMIT—Sentenced to Death– Rewarded with $ 450,000 by the Magnificent PORTER ! POOR DARRYL should have a few million in his BANK–Even if Porter was made unhappy— it would have been muh more of a turn ON to execute poor DARRYL–you CAN DIG HIM UP LATER . It’s been said that the ultimate feeing of power– is to sentence some poor little bugger to death –The pigs responsible can walk the streets with their chests puffed out — down to the brothel for a FREEBY and a bit of CASH — HAVE JURY MEMBERS BEEN QUESTIONED LATER –Their feelings about the sentence of DEATH-And having been smart arsed by the POMPOUS GITS in the whole JUSTICE SYSTEM ?

  2. Wbalensky says:

    The Queensland Police didn’t want to shut down the brothels– free jiggy jigs and a share of the proceeds from the mugs who paid for – what the Queensland police got for free !

  3. WHALENSKY says:

    How is that the NT. Police didn’t get to the matinee jacket first so as to hide it

  4. WHALENSKY says:

    Can’t see any real evidence- such as a result– that I haven’t wasted my money– thinking that you were competent !

  5. Whalensky says:

    Would it be fair to say that you are having a lovely time taking donations– when you know dam well you will fail in your quest ?

  6. WHALENSKY says:

    Looks like I can’t support financially the quest for justice ! Since you and the police don’t like me anymore– could you refund donations I have made– or have they been–

  7. WHALENSKY says:

    Since you refuse to accept any of my comments–YOU must be part of the system ?

  8. WHALENSKY says:

    It is obvious that” YOU” don’t want any comments about the corrupt Jury system and personal experience of IT ? The lazy incompetent defence Lawyers not pursuing the obvious crapp ! Unless the defence Lawyers decided that Chamberlain’s was guilty- they would have known for ABSOLUTE CERTAIN that there couldn’t have been baby blood under the dash–did they ( the defence )even look themselves– there couldn’t have been baby blood sprayed there– what kind of stinking useless jury did the prosecution appoint–the prosecution has there grubby MITS right into the jury selection !

  9. WHALENSKY says:

    Read the experience of MENDELSSOHN MILLER — The Police Man who refused to lie–Unless one is prepared to lie ones guts out when under OATH– You will have no future in ANY POLICE FORCE IN AUSTRALIA ! You have to demonstrate to your superiors that you are a lying gutless swine–and don’t even begin about juries– carefully selected halfwits with prosecutors servant slotted in ! Defence Lawyers –seems something smelly there– eg. Why didn’t Chamberlain’s defenders pursue to the death–the stinking DOGS VOMIT FORENSICS about the Generals Underspray–if I was on the jury i would have sent a note to THE JUDGE–Demand A second independent analysis– “they” played the jury for gullible mugs ! I wrote a note to the JUDGE when I was on a jury with a professional foreman– the Judge suggested I should piss orf ! After all-how are “THEY”going to get a NICE SMOOTH VERDICT with a bloody inquisitive suspicious little mongrel who had woken up to the slotted in jury foreman–SO I did the gutless thing– got the hell out of the revolting- smelly business !

    • WHALENSKY says:

      Have you ever done ANYTHING that you will regret for the rest of your life– been hoodwinked on as a jury– where the verdict Could be DEATH ? Been in an Australian Police Force and lied your guts out- as expected of you — even in what you consider is a minor lie–some dogs vomit traffic ticket for eg.Unlike yourself– highly paid and a share of brothel and other monies–some poor little struggler could find a dishonest pig traffic ticket quite a hardship ! Do you ever feel guilty when you walk out of the court– after beating an Aboriginal to death–oops he fell over ! Massive injuries that the halfwit JURY excepts as inflicted when the DEAR LITTLE POLICEMAN WERE DEFENDING THEMSELVES? ? DO YOU GO HOME TO THE WIFE and KIDS PROUD OF YOURSELF FOR BEING A HUNK OF DOG VOMIT ? OR Do regard .misleading a Jury Par for course ?

  10. Owen allen says:

    Have I ever said here Andrew the Nazis put me in Maximum Prison for playing guitar in a public place, same place, same time, everyday Mon _ Fri, my job after they ruined my pilots job, ruined my business, then cancelled my taxi licence then put me in prison for playing guitar. And Brian questions Nazis.
    I have got so much to spill. They wanted me beat up or killed in Risdon, but I was protected, as we all are now. And then an arrest warrant for attending a public seminar in a public place. They are off the show. Beyond Reality, psychotic are Tasmanian Leaders. Get your head around it Federal Government and do something.

  11. Noline Durovic says:

    Andrew, I start my reply with a quote from “Theodore Roosevelt”

    ‘Justice consists not in being neutral between right and wrong. But finding out the right. and upholding it, where ever found against the wrong.’

    This quote in all its simplicity; is what I have believed in as far back as I remember, – Very likely instilled in to me by my remarkable parents. With my sightings of injustices over a long life, it has stemmed me through a determination right must overcome wrong,
    Which brings me to Susan Neil Fraser and the ” Many of the listed contributing factors of Wrongful Convictions in Australia” posted to this article determined Susan Neil Frasers wrongful conviction! Susan Neil Fraser is innocent and has suffered a terrible wrong at the will of : Eyewitness Errors – Erroneous Informed Testimony – Prosecutorial’s – False Witness Testimony (for favours) -Incompetent Defence – Forensic Evidence Misleading – Misdirection and cover ups by Police – DPP(S) ( Justice Department and the Judicial – Political cover by successive Tasmanian Governments made seriously aware Susan Neil Fraser was rail loaded and has suffered imprisonment of a wrongful conviction..A malfeasance of a wrongful conviction so dark in all the lies attributed to such a wrong. This dishonour attributed to stealing away Susan Neil Frasers life as an innocent person, is wrong and must be made right.”

    • Garry Stannus says:

      Thank you, Noelene, for your comment.

      In particular, thank you for the quote: “Justice consists not in being neutral between right and wrong. But finding out the right. and upholding it, where ever found against the wrong

      I have been forced aside from my years-long love of ‘Rumpole of the Bailey’ (Hugh Mortimer?) TV or in print, I loved it. Somehow, I have half-distanced myself from our English system, where we have two adversaries in court … while a jury listen … to an different system (the French ‘Inquisitorial’ method), where a judge hears evidence from both an accuser (the police…DPP) and ‘the others’. The decision is then to be made.

      I’m not sure that I’ve said enough here, to ‘make my case’, but I suppose that what I’m really saying is that the trial was ‘one thing’, though an inquiry would be better.

      • Noeline Durovic says:

        Garry, The trial Was!..I totally agree an inquiry would be bette!. From “she who must be obeyed” .. Just being frivolous for my great love of Rumple of the Bailey..

  12. Robin Bowles says:

    In the trial of Bradley Murdoch ( Falconio) the Crown flew in an expert from the UK who gave Gobbledegook evidence ( which totally impressed the jury) about Low Copy Number DNA being found buried deep in a layer of home-made manacles which, along with the very suss ‘eyewitness’ evidence of Joanne Lees, convicted Murdoch to a 28 year sentence. The LCN DNA theory ( same expert) was subsequently thrown out of the UK trial of Sean Hoey, with the judge saying it did not belong in a British court and despite no body, no cause of death, no weapon, no motive, no confession and no reliable witness Murdoch was found guilty. Sound familiar?

  13. Rosemary says:

    Great article. Where are courageous reformers in Australian parliament? seems reforms are in the ‘too hard basket”!

  14. Owen allen says:

    This is first and final warning. I was unaware of the years of suggestion of a CCRC.
    George Brandis, Christian Porter, Michaelia Cash, you all are supporters of criminal corruption and injustice. You are complicit to judicial crime by the vey fact you ignore true justice and blatantly refuse to follow worlds best practice of justice. You do not have long to bring it on. Every individual involved is personally responsible and accountable.
    Do not, I repeat, do not hide behind party policy, if you do not like the party policy and can not change it, get out, and eventually the pary will dissolve through lack of members. Do not be like the NAZIS OF PAST.
    If nothing happens very soon regarding appointing a Criminal Case Review Commission I will assume the agenda is Totalatarian Nazi.

    • Brian Johnston says:

      You were doing just fine until you mentioned NAZIS. You then ruined everything.

      • Owen allen says:

        My mention of Nazis was to point out people did not respond and stand up against the fascists, they joined them because they were afraid of them. But they were murderous bullies, but better to die against them than join them.

        • Owen allen says:

          Also Brian, Tasmania is the last bastion of white supremacy. Have you not read about the Tasmania, Black Line?

          • Owen allen says:

            And Brian, nazis murder anyone and everyone like all dictatorships and corrupt regimes, including australian suburban bogans.
            The hate starts at the top, and the love is in the gutter, do your social research please.

  15. Helen says:

    How judgemental people are still about dear Lindy Chamberlain. Not once were the two “Blacktrackers”, ever brought before the Witness Stand. White supremacist again. The two Indigenous trackers had witnessed the drag marks of the dingo coming from the Chamberlain tent. I have spoken to an Indigenous social worker, on a train, travelling from a suburb of Brisbane to another location and he always stated that Lindy was innocent. Don’t get me started about injustices to Indigenous in custody.

    • Brian Johnston says:

      You were doing just fine until you mentioned White supremacist. For God’s sake they don’t exist.
      The police are at fault as they are in all cases going back to Gun Alley murder.
      We know which Dingo took the baby. Why would the police bring in trackers when they want an open and shut case, blame Lindy.
      Tackers were brought into the Falconio case and Murdoch, innocent, still went to gaol so what is your point!
      Three people seen coming out of the forest we now have four including the driver. One man, Milat goes to gaol.
      5′ 7″ Milat goes to gaol when Paul Onions is picked up by a six footer.
      I have 40 or 50 books on true crime, I have a good idea what is going on.
      Read Presumed Guilty by Bret Christian. A very good place to start.

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