Andrew L. Urban
What reforms has the criminal justice system undertaken in the wake of the wrongful convictions decades ago of Lindy Chamberlain, Derek Bromley, Henry Keogh, Andrew Mallard, Gordon Wood and – we say, Sue Neill-Fraser in 2010, Robert Xie in 2017 and Noel Greenaway in 2019? We have to conclude that the answer is: none.
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 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.
2023
A 2023 book that touched on the subject of juries, Wrongful convictions in Australia: Addressing issues in the criminal justice system by Kerry Breen & Stephen Cordner, canvasses the many areas of concern that contribute to wrongful convictions, all of them familiar to readers of this blog. But I was especially interested to read what they say about juries.
The authors emphasise the importance of reforms that we have ourselves sought for some time, noting the difficulty that judges, barristers and juries may have in comprehending complex forensic or scientific evidence. This difficulty was identified forty years ago when forensic pathologist, Dr Vernon Plueckhahn, advised a judicial conference that: ‘Scientific evidence in the judicial process is the most elaborate form of interdisciplinary communication that has yet been attempted’. His comment echoes strongly today. Much of the science is now more complex with difficulties in comprehension and transmission multiplied.
1987
We therefore recommend that all forensic science services in Australia should, where necessary, be restructured to make them genuinely independent of any police force and to place them in an environment in which more research is funded and undertaken, especially into those forensic sciences where fundamental validity is weak. We note that this is not a new recommendation as Justice Morling in 1987, when calling for a national institute of forensic science, emphasised that such an institute must function independently of the police forces. There is unlikely to be one single path to achieve the aim of effective independence for forensic science and thus we do not propose any particular path.
1986
Stuart Tipple, famously representing Lindy Chamberlain in the 1980s, writes in the foreword to this writer’s upcoming book, Framed – how the legal system framed Robert Xie for the Lin family murders:
In 1982 I was listening to Mr Justice Muirhead, virtually directing the jury they should acquit Lindy Chamberlain. I was confident that we have the best judicial system in the world. I was not alone.
As I was listening, the defence witness, Professor Barry Boettcher (who demonstrated that the Crown case on the blood was in error) was writing to me.
“Although the jury has not yet had to consider its verdict, I am confident of the outcome. There is only one verdict appropriate. I am confident that Chamberlains will not only be found not guilty, but there will be a wealth of commentary…”
My disappointment and outrage crystallised in an essay I wrote pointing out the system’s failures. It became the winning entry of the Law Society’s New South Wales law week in 1986.
Sadly, nothing much has changed.
That was almost 45 years ago.
The eminent English jurist, John Macdonell (1 August 1846 – 17 March 1921) observed, “There is no accepted test of civilisation. It is not wealth or the degree of comfort or the average duration of life or the increase of knowledge. All such tests would be disputed. In default of any other measure, may it not be suggested that as good a measure as any is the degree to which men are sensitive to wrongdoing and desirous to right it.”
2009
“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 (2009).
“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 … 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.
National cabinet (that bastard child of the pandemic) dumped the review by the nation’s Attorneys-General into junk science that was to lead to reforms in crucial evidence presented in courts.
Just so you know, the widely accepted forensic ‘sciences’ of bullet, hair, footprint, bite mark and mixed sample DNA (see Robert Xie case) are all actually junk science; they are not based on solid scientific evidence. Neither is Shaken Baby Syndrome. See ‘Shaken Baby Syndrome convictions rely on junk science and tunnel vision’
Likewise, covert recordings used by police to gather evidence, are transcribed in a dangerously unscientific way. “Did he say I shot the prick or I can’t breathe”?
The review intended to explore the establishment of basic standards that could be benchmarks for such evidence. It also wanted to examine whether juries were capable of understanding complex scientific evidence – often crucial in serious criminal trials where the penalties are severe.
The investigation had clocked up 16 months but was quietly closed off after the national cabinet downsized the Council of Attorneys-General, restricting its focus to family violence, protection for older Australians and defamation law reform.
Professor Gary Edmond, director of the University of NSW’s expertise, evidence and law program, was quoted in the Sydney Morning Herald, saying that completing the review was already “long overdue” but it now appeared there was no end date in sight. “That doesn’t mean the states themselves can’t go ahead on their own. What’s stopping Victoria from looking at the same issue itself? This needs to be done – we’re completely out of step with other comparable countries that have standards that say forensic science evidence doesn’t get into a trial unless it’s demonstrably reliable.”
But sometimes, it’s not the reliability of evidence but the professional ethics of the prosecution that needs to be improved. (It should be noted that there are many prosecutors and judges who behave according to their professional ethical requirements.)
2013
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 in a domestic dispute. Police charged him with her murder. In his second trial (March 2021), I witnessed his new defence barrister, Margaret Cunneen SC, tell the court: “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 any evidence. (The prosecution insisted on his guilt even after the verdict. When this blog/author contests a verdict, it’s done with evidence.)
Prosecutorial addiction to convictions can derail justice – but prosecutors are immune from consequences of any unethical actions. Likewise judges.
2010
In the 2010 trial of Sue Neill-Fraser, the prosecutor, Tasmanian DPP Tim Ellis SC, speculated about a wrench being the murder weapon, but didn’t have a wrench to produce in evidence. The trial judge, Alan Blow (now retired Chief Justice of Tasmania), failed to intervene and then mentioned a wrench eight times in his summing up.
Blow’s sentencing remarks show how far his learnedness wandered from the facts before the court:
Blow: I am satisfied beyond reasonable doubt that Ms Neill-Fraser attacked Mr Chappell
Urban: On what evidence? None was produced in court. No weapon. No body. No Witness.
Blow: I cannot rule out the possibility that the attack left him deeply unconscious, and that drowning was the cause of death
Urban: Baseless speculation based on baseless speculation.
Blow: I am satisfied beyond reasonable doubt that Ms Neill-Fraser used the ropes and winches on the yacht to lift Mr Chappell’s body onto the deck; that she manoeuvred his body into the yacht’s tender; that she attached an old-fashioned fire extinguisher weighing about 14 kilograms to his body; that she travelled away from the Four Winds in the tender with the body for some distance; and that she dumped the body in deep water somewhere in the river.
Urban: On what evidence? None was produced in court.
The first step towards giving justice a chance is arguably the establishment of a national (national, not Federal) Criminal Cases Review Commission.
Flinders University legal academic Dr Bob Moles writes: “When speaking of a CCRC I sometimes refer to the possibility of a “national” CCRC but never to a Federal one.
“A national CCRC can be established by setting up a single CCRC and then each state and territory can legislate to nominate that CCRC as the appropriate agency to review cases on its behalf and exercise powers given to the CCRC by that state to refer matters to the appeal court of that state. This would not involve any constitutional change of any sort.
“In essence, instead of duplicating the overheads of a CCRC eight times by having one in each state and territory, resources are saved by having a single body exercising the appropriate powers for each state and territory.
“According to basic jurisprudential principles of sovereignty – as explained by Robert French, former Chief Justice of the High Court – Australia has a single unified legal jurisdiction which is why we have a common Supreme Court (the High Court). To have a single administrative body which can exercise powers on behalf of each state and territory, being cognisant of the minor variations in the law which may occur between them, would be administratively simple and have strategic and economic benefits.”
Equally first, as authors Kerry Breen & Stephen Cordner say in their book (above), “forensic science must be placed on the firmest scientific basis possible and be independent of the police.”
Considering there are law reform commissions in all states and a Federal one, it is telling that not one of them has ever been tasked with examining what reforms should be implemented in the criminal justice systems – state and/or Federal. It is impossible to argue that there is no need for any …
Andrew L. Urban is the author of four books revealing wrongful convictions: Murder by then Prosecution, The Exoneration Papers, Presumption of Evil and coming soon, Framed – how the legal system framed Robert Xie for the Lin family murders.