The lawless country?

Andrew L. Urban.

You might sleep soundly in the belief that Australia has a robust, fair and competent criminal justice system. Dream on. The System itself sometimes contributes to lawlessness in the administration of justice. 

Just this past week, Flinders University legal academic Dr Bob Moles has written to the incumbent Federal Attorney-General (repeating previously expressed concerns), alerting him to the failures of South Australia’s system to adhere to aspects of the International Covenant on Civil and Political Rights as it relates to fair trials, regarding the case of Derek Bromley.

Derek Bromley

“The central issue is the disclosure to the High Court required of the DPP that the evidence given by Dr Manock at Bromley’s trial is inadmissible, as he was not qualified to perform the autopsy and was not qualified to give evidence about it in any criminal trial. Such disclosure would – or should –result in the Court instantly upholding the appeal, quashing the 38 year old murder conviction and setting Bromley free,” writes Moles.

He points out that “The duty of disclosure by the Crown is of course an essential component of a fair trial and the right to an effective appeal. That duty requires that if there is evidence known or available to the Crown and which would undermine or bring into question the credibility of a Crown witness, it must be made known to the court. For reasons which have never been explained the Director of Public Prosecutions (DPP) in South Australia has not done that – not in Mr Bromley’s case nor in any of the other 400 or more cases in which Manock has been used as a prosecution witness.

“We are clearly in a situation where the relevant South Australian authorities have failed and continue to fail in their duties, no doubt because of the scale of the catastrophe which has occurred here. The current DPP (a former Supreme Court judge) has made no mention of Dr Manock’s appalling history in his submissions to the High Court (or on the previous appeal) and has indicated that he does not intend to inform the High Court that Manock’s evidence was wrongly admitted at trial. I am aware that the High Court is a court of Federal jurisdiction, and that would clearly bring the matter within the jurisdiction of the Federal Attorney-General. I am also aware that the International Covenant on Civil and Political Rights guarantees to all citizens the right to a fair trial and the right to an effective appeal.

“It is clear that in Mr Bromley’s case (and all others involving Dr Manock) those international human rights obligations have not been adhered to.

“I therefore respectfully request that you use your powers to intervene in this matter to ensure that the High Court will not be misled when this matter comes before them on the 16 September.”

In other words, the South Australian DPP appears to be prepared to ignore the rule of law in this serious, historic criminal matter. And who can restrain him from doing so? Good question… Neither the Major Crime Investigation Unit, nor the Attorney General, nor the State’s Director of Public Prosecution want anything to do with it – a brazen disregard for the law, straight out of a third world dictator’s playbook.

Will the new government’s legal officer, The Hon Mark Dreyfus QC MP, intervene? His predecessors have not shown any propensity to take remedial action either in specific cases such as Bromley’s or in the big-picture issue of a Criminal Cases Review Commission. In the case of the latter, Dr Moles has outlined an elegantly effective way of establishing a national network that would perform the much needed functions of such a Commission. We at Wrongful Convictions Report have also made such representations, only to be ignored. That’s not a personal insult; it’s an insult to all Australians.

Kathleen Folbigg c 2019

Meanwhile, in NSW, the second review of Kathleen Folbigg’s conviction for the murder of her four little children has been scheduled for October 2022. It was announced by NSW Attorney-General Mark Speakman, on May 18, 2022. No sense of urgency is attached to a matter that has been thrown into serious doubt by 150 leading scientists (back in December 2021) who have medical evidence to show that it was not murder but genetic mutation that killed the children. Folbigg has been incarcerated for almost 20 years … there is clearly a denial of justice in her case by the administrators of the law.

As for Tasmania, an example of the most egregious disregard for a fair trial continues to haunt the State’s legal system, as Sue Neill-Fraser prepares to apply for parole – 13 years after her incarceration. Parole will not wash away the very many errors and blatant breaking of legal rules that led to her conviction for the murder of her partner, Bob Chappell. Here are just two:

Sue Neill-Fraser

The prosecutor’s address to the jury was in breach of the legal rules and prosecution guidelines, and was seriously prejudicial. This error warrants the conviction being set aside.

The judge’s summing up was in breach of legal rules and was seriously prejudicial. This error warrants the conviction being set aside.

In Victoria, a father is serving a life sentence for the murder of his three young sons. The conviction (at two trials) is clearly unsafe, as scientist and author Chris Brook demonstrates in his outstanding investigative book, Road to Damnation.

Robert Farquharson and Cindy Gambino console each other at the funeral of their three boys

It was Father’s Day, September 4, 2005, and Robert Farquharson had been driving his three young sons home to their mother’s house in Winchelsea (`Winch’ to the locals) after taking them to dinner at KFC in Geelong, 30 minutes up the Princes Highway. Just a few minutes before reaching Winch, the car went off the road and into a dam. The three children, Jai aged 10, Tyler 7 and Bailey 2 years old, all drowned. Robert Farquharson escaped the sinking car.

Here’s how Brook tells it in his book: It is pitch black. Jai is shaking him. ‘Daddy, daddy.’ He is dazed, at the wheel. He starts to feel around. We are off the road, he thinks, must be in a ditch. But then Jai opens the passenger door and water starts rushing in. He reaches over Jai, shuts the door quickly. The car lurches left. The kids are yelling now. `Just settle,’ he says, ‘I’m gonna try to get youse all out of here’. He starts to follow the routine for taking the kids out of the car. Go around the car and grab Bailey out of his baby seat, then Tyler will jump over the baby seat, Jai gets out the front door. Routine. He turns off the engine and the headlights before he gets out of the car. Routine. He sinks. He cannot touch the ground. He is swimming. Goes under. Comes up. He can’t touch the bottom. Why is it so deep? The car is sinking. Fast. He reaches out, tries to hold on to it. But it’s gone. Fuck. Fuck.

When Farquharson told me the story of what happened the night his children died, I could not look into his eyes and tell whether he was lying. I don’t have that ability. I cannot read minds. I can tell you that he stuck by his story of blacking out after coughing. Of coming to in the dam. Of trying to dive down. Of not reaching the car. Of going for help. That by the time he reached the road he had gone into shock. That the only thing that came into his mind was the need to tell Cindy, the boys’ mother. I can also tell you that I believed him. Not because he sounded earnest, and not because he looked me in the eyes, as though that matters. I believed him because I had spent the past two years looking closely at the evidence used to convict him, and had concluded that the evidence indicates that he is innocent.

This entry was posted in Case 01 Sue Neill-Fraser, Case 05 Derek Bromley, Case 17 Kathleen Folbigg, General articles. Bookmark the permalink.

8 Responses to The lawless country?

  1. John S says:

    More typical poor governance, seems to be an epidemic of it nowadays. It does make one wonder whether we’re still a developed nation or not, seems we’re little better than so-called third world nations, whom we mock for their poor governance!

  2. Diane Kemp says:

    What a sad state this country has ended up in and how did we get here???

    The people breaking the law are the very ones we thought were ensuring they were being implemented. So who are the criminals in Australia today and how did we let them get into positions of power and not notice what was happening.

  3. Maris Valentine says:

    Thank you Andrew for summing up these matters. It isn’t until you hear of someone close to you who has been unjustly convicted of a crime or crimes, that most people begin to question the workings of the legal system. Yes, if it is bad enough, someone will write a book or even make a film, but even then, the country will probably be divided. There seems to be something in the human psyche that wants to believe the worst about anyone who has been convicted of a crime. After all, there is the law to protect the defendant from wrongful conviction! Well, no. It doesn’t necessarily work that way. A prosecution can represent a position so often in an alternate manner that eventually a witness takes on a new memory and becomes confused about something that he or she was previously quite certain about. There are legal arguments about what should and what should not be admitted into evidence resulting in important exculpatory evidence not being admitted and in any case, the jury, or the judge in a judge alone trial, can simply be seduced by the prosecution narrative or the demeanour of witnesses – without having any idea how different people react under stress. The justice system just does not work for the wrongly convicted and Australia desperately needs a national Criminal Case Review system. Courts of Appeal are expensive and only want to look at whether the original trial was conducted according to the rules of law.

    And the rules of law can sometimes be an ass.

    If we can spend a fortune on Covid vaccines which have been proven not to stop infection, not to stop the spread of infection, haven’t really been “proven” to even lower the impact of the Covid-19 virus on a vaccinated person because there is no way to establish how sick that particular patient would have been without vaccination, and meanwhile, the vaccines have turned out to have some very serious consequences for an unacceptably large number of people, including many, many deaths, then I think there is absolutely no excuse for the Federal government not to spend the money on establishing a Criminal Case Review system to avoid innocent people rotting in prison with all the attendant extra financial costs to the justice systems and the emotional and financial costs to the defendant and his/her family, plus the loss of productivity of that wrongly convicted person. Mary

    • Garry Stannus says:

      Regarding your comment, Maris Valentine,

      “A prosecution can represent a position so often in an alternate manner that eventually a witness takes on a new memory and becomes confused about something that he or she was previously quite certain about”:

      I recall that at her trial, Susan Neill-Fraser said, ““The trouble is if you talk about something enough it becomes a memory” – Court Transcript [20101011 1182 2]

  4. Owen allen says:

    The Authorities in Australia are begging for the reincarnation of Ned Kelly, so they can shoot him down; no hanging allowed. The Australian Authorities not following Australian Law must be crazy. …
    I am in a network of non crazy people waiting for decades for you, to give us an excuse, Australia has never been civilised or legalised, it has all been pretence.
    Face up, make the change now; National Crimal Case Review Commission, please Mr Prime Minister and Federal Labour Government.

  5. Brian Johnston says:

    Why wont Moles help Bryant. The left hander that only ever owned a .22 rifle is all of a sudden in a cafe firing from the right hand hip a military styled rifle.

    The head of the army said. The shooter in that cafe was a better shot than me and there aint many people around that are that good.
    Supposedly 20 at any one time.

    Why wont Moles act in this matter.

    Tasmania did nothing and wonder why they are having difficulty helping Sue.

    • Owen allen says:

      Leave Dr Bob alone Brian, please.
      Research Andrew McGregor Port Arthur and he has enough to institute an enquiry; and a coronial enquiry was wiped illegally to the constitution by the then Prime Minister John Howard. I met, sat with Andrew McGregor, with Mr R McDonald whom was well known by Tasmanian Authorities in the 90’s. I lived close to Wendy Scurr who made the phone call. Do some research. They have tried their best and been ignored. Heads in the sand. Andrew McGregor was ex Vic Detective.

  6. Owen allen says:

    Lawless country? Absolutely. In Tasmania we were treated as “Outlaws”, where in the days of old, certain people were not protected by the Law, hence Out Laws.
    These people are setting up a war situation, where if they refuse to function under the law, law no longer rules, therefore the office bearers no longer legimately represent the government or people and need to be removed.

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