Andrew L. Urban
Prosecutorial (bad) behaviour is partly responsible for nearly 1 in 5 wrongful convictions in Australia. That is the statistic reported in a Griffith University study. That study looked at just 71 wrongful convictions. Behind the statistic is the human tragedy that engulfs hundreds of people. In my view, even a tenth of that figure would be too many. It represents agents of the state harming citizens.
That 1 in 5 figure doesn’t even take into account the convictions that have not been officially identified as wrongful by the legal system. We report on some of these in wrongfulconvictionsreport. Others are out of sight, visible only to those affected, and the few more whose distraught family contact me in confidence. If I had to guess, I’d say the actual statistic is at least 1 in 4 convictions have been achieved in the hunt for convictions by the prosecution. This is in the realm of serious crimes like murder and rape. The punishment is severe.
As we reported in our October 2, 2025 post, Bad law & judges with poor judgement prosecutorial behaviour was only one of the causal factors in wrongful convictions, with judges making things even worse, with 32% of wrongful convictions at least partly due to their Honours. That’s almost double the damage caused by prosecutors. We have found examples where judicial error compounds prosecutorial behaviour.
In the 2010 Tasmanian murder trial of Sue Neill-Fraser, the prosecutor, DPP Tim Ellis SC, speculated that the middle aged accused had killed her partner Bob on their yacht with a blow with a wrench or similar. He went on to speculate how she winched his body up to the deck, into their dinghy and took it out to drop into the water. He had to speculate to make his case because the body was not recovered and there was no alleged murder weapon tendered in court. He went so far as to fantasise what the wounds might be … All this speculation is impermissible under the rules. Presiding judge Alan Blow, supposedly the guardian of the law in court proceedings, did not stop him.
At that trial, there was an exchange with the jury absent which I’ve always thought telling:
CT 1486 HIS HONOUR, COUNSEL, JURY ABSENT – SUBMISSIONS, PRIOR TO SUMMING UP, 13/10/2010
MR ELLIS SC: The next point is, it was attributed to me that I said it was Mr Chappell’s blood in the dinghy. Now I don’t believe I did
MR GUNSON SC: Yes, you did.
MR ELLIS SC: Okay – I don’t know why I’d say it
HIS HONOUR: – Well –
-
MR ELLIS SC: – because I’ve never believed it.
HIS HONOUR: In opening.
MR GUNSON SC: Yeah.
MR ELLIS SC: Oh in opening –
MR GUNSON SC: Yes, in opening.
MR ELLIS SC: Oh okay, I abandon that, if I said it in opening.
HIS HONOUR: All right. Well I’ll do nothing about that point. What’s the next point?
His Honour did indeed do nothing about that point, not even to alert the jury that the prosecutor was not telling the truth about Bob’s blood in the dinghy – which was supposed to convince the jury of the speculation he had put to them. But the question that jumped out at me as I first read this in the transcript was ‘why talk about blood in the dinghy at all, if you never believed there was any of Bob Chappell’s blood in the dinghy?’ He is using non existent evidence to shore up his speculation.
In the 2017 multiple murder trial of Robert Xie, accused of murdering five of his wife’s family including his two young nephews, the prosecution made a huge fuss about the DNA deposit found in Robert’s garage 200 metres from the crime scene. The speculation was that the DNA had been deposited when the murder weapon was put on the ground. The fantasy was expanded with the use of international DNA expert’s testimony, which was not only complex but implausible. The prosecution could not prove the time of the murders so the case was built around Xie’s availability to commit the crimes – that is, after 2am. The Crown also made up a scenario which included the allegation at trial that Xie had sedated his wife so he could sneak out in the middle of the night to brutally murder the family. No evidence was presented to support this ridiculous claim. The judges (there were four trials) never disturbed this scenario with the application of the relevant rules.
In 2017, Tasmanian barrister Fabiano Cangelosi conducted an unsuccessful appeal for Marco Rusterholz, convicted of the 2012 murders of Angela Hallam and Joshua Newman.
Over the course of the seven-week trial, jurors heard from more than 70 witnesses. Witness Matthew Coventry told the court he and Angela Hallam trafficked drugs for Rusterholz and they had stolen a large amount of drugs from him. Both Coventry and Mayer said Rusterholz had admitted the murders to them. (Those arguably self-serving, unreliable claims played the key role in the conviction.) The prosecutor was Mr Ransom from the Office of the Director of Public Prosecutions.
The Appeal Court accepted that the circumstantial case against Rusterholz was not sufficiently strong to prove guilt beyond reasonable doubt, but found that the claims of admissions made by Rusterholz to other persons, notwithstanding that they were persons potentially of very low credit, left the convictions as safe and reasonably open.
Under these circumstances, describing the convictions as “safe and reasonably open” is incorrect; the Crown’s case is not resting on evidence but on questionable testimony. Guilt is certainly not proven beyond reasonable doubt.
In his extensive deconstruction of the trial and arguing his innocence, Rusterholz writes: “The solid science evidence coming from fire investigators and forensic services completely clear me and strongly point the finger at Morgan and Covo.”
(Further details about these ‘unrecognised’ wrongful convictions can be found at links on the right hand side of the page.)
In the documented cases, the most common form of prosecutorial misconduct is failure to disclose exculpatory evidence to the defence (e.g., withholding documents or witness statements that could undermine the prosecution’s case). Eg: Mallard v The Queen (WA, 1995): Prosecution suppressed expert reports and early witness statements contradicting key evidence.
Neither judges nor prosecutors ever face real life consequences for their serious failings, failings that cause suffering to others. They are not held to account either by the law or their innocent ‘victims’.