Andrew L. Urban
In just the three cases that were cited in our recent series (Oct 20 – 26 2025) allocating seven of our Red Herring Certificates to a total of 8 judges and 3 prosecutors who we believe have contributed to or helped maintain wrongful convictions, the rules that govern prosecutions in Australia were ignored multiple times. What could be done to justify calling it a ‘justice’ system?
Prosecutors speculated beyond the evidence and judges allowed it. Judges directly contradicted evidence. Appeal courts turned away appeals against blatant miscarriages of justice. We listed eight judges no less, and three prosecutors whose errors are easily identified, and whose actions resulted in what we have argued are wrongful convictions. One of the accused is in prison (Robert Xie), one is dead (Frank Valentine) and one is on parole after serving 13 years (Sue Neill-Fraser).
The separation of powers keeps the legal profession safe from political interference – but also from outside-driven reform. With a properly constituted national Criminal Cases Review Commission (CCRC), these miscarriages of justice could have been mended at the first step after initial appeal. Not only would that have served the interests of justice, but arguably saved enough money to help justify its costs by shortening the legal processes.
With the cooperation and encouragement of Flinders University academic Dr Bob Moles, this blog has written to four Federal Attorneys General proposing how such a national body (as distinct from Federal) might be established. Moles himself has argued for such a body.
He has written that “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.”
In such a scenario, after her first appeal was dismissed, Sue Neill-Fraser could have taken her case to the CCRC. It is entirely feasible that the CCRC would have recognised the core deficiencies at trial and referred the case back to Tasmania’s appeal court, with its reasons. The speculation put forward by the prosecutor and allowed by the trial judge would agitate the CCRC.
In the ignominious history of the case of Robert Xie, there are many flaws in the Crown case, but none so egregious as the attempt to negate his alibi: in bed by his wife’s side, as she confirmed to police and under oath.
Her Honour Elizabeth Fullerton, the trial judge, in her sentencing remarks at first states that ‘Consistent with the verdicts of the jury,’ the Crown has disproved alibi, but then states – in apparent contradiction – that she is not satisfied Beyond Reasonable Doubt that Robert did sedate his wife. If Her Honour doubted the Crown’s sedation scenario, wasn’t she obligated to raise that matter with the jury?
This case, too, would be referred back to the NSW appeal court for a sensible and legally acceptable appraisal of the evidence. And the conviction quashed…
In the case of the late Frank Valentine, a CCRC would certainly be miffed by the appeal court’s total disregard for the rules as it dismissed the appeal without reason. I’m not sure how critical a CCRC panel might be when sending cases back for review, but it should be encouraged in the rules establishing such a body, so as to provide lessons for future courts. Judges in appeal context are said to be reluctant to be critical of their peers. Pity that.
Perhaps the biggest obstacles to a national CCRC system is the lack of will exhibited so far by Federal Attorneys General to take the lead, followed by the resistance to such a scheme by State AGs. They have not shown reformist zeal.
Much sorrow and piles of cash could be saved and pretend justice avoided had Australia caught up with the Anglosphere and introduced a national CCRC platform before now.
Tasmanias Justice system is a farce. Very corrupted I believe.
Justice for the Just? Why Andrew Urban’s CCRC is Only the Beginning
Andrew L. Urban’s recent series culminating in his post “Can we legitimately call it a ‘justice’ system?” (October 28, 2025) is not just insightful; it’s a desperate warning sign. The cases of Robert Xie, Frank Valentine, and Sue Neill-Fraser are stark testaments to a system that is failing in its most fundamental duty: to protect the innocent.
Mr. Urban is entirely correct in his diagnosis. He points to prosecutors speculating beyond evidence, judges allowing it, and appeal courts rubber-stamping miscarriages of justice. His primary prescription—a national, independently-constituted Criminal Cases Review Commission (CCRC)—is the most logical and essential reform Australia has so far failed to implement.
As Dr. Bob Moles has argued, this is not a constitutional impossibility. It is a matter of political will, or as Mr. Urban rightly identifies, a glaring lack of “reformist zeal” from our State and Federal Attorneys General. A CCRC would act as a vital backstop, a mechanism to mend the egregious errors that our current appeals process seems content to ignore.
But while a CCRC is a necessary corrective measure, it is not a preventative one. It is a world-class emergency room for a patient who is systemically ill. To truly build a “justice” system, we must go further and address the root causes of the illness. Building on Mr. Urban’s vital work, we must demand accountability at every stage of the process.
This leads to three urgent, common-sense proposals:
1. Suspend Prosecutors Who Breach Their Duty
A prosecutor’s duty is not to “win” at all costs, but to see that justice is done. This includes a sacred obligation to disclose all relevant evidence, especially exculpatory evidence that benefits the accused. When a prosecutor is alleged to have committed an offense as grievous as withholding evidence or failing to submit it, they have compromised the entire proceeding.
It is untenable for that individual to continue prosecuting other cases while under investigation. They must be suspended from all duties, effective immediately, until their name is cleared. To allow them to continue is to sanction the very misconduct that leads to wrongful convictions.
2. Ensure Juries Can Think Critically
In the cases of Neill-Fraser and Xie, the “appalling oversights in evidence weight” are chilling. Speculation was accepted as fact, and alibis confirmed by witnesses were dismissed. A jury holds a person’s life and liberty in its hands. While we value a jury of “peers,” this must not mean a jury incapable of logic.
We do not ask jurors to be legal scholars, but we must ask them to be critical thinkers. It is time to explore a mandatory, non-partisan assessment for potential jury members that tests their ability to weigh evidence, identify logical fallacies, and understand the profound meaning of “beyond reasonable doubt.” Justice should not be a lottery based on who can be swayed by the most speculative story.
3. Hold Police Accountable for the Evidence They Gather (and Hide)
The trial begins long before the courtroom. It begins with the police investigation. If, as Mr. Urban’s work and other essays suggest, police fail to provide exculpatory evidence to the courts—or worse, actively conceal it—the foundation of the case is rotten. This is not a mistake; it is a fundamental betrayal of their oath.
There must be severe, independent, and transparent consequences for officers and departments who engage in this practice. Without this accountability at the source, any subsequent trial is merely theatre, processing a case already tainted beyond repair.
So, can we legitimately call it a “justice” system?
When judges contradict evidence, prosecutors hide the truth, and juries are swayed by fantasy, the answer is a resounding and shameful “no.” We have a legal system, but justice is too often an accidental bystander.
A national CCRC is the essential first step to fixing the errors of the past. But only by enforcing real accountability for police, prosecutors, and the standards we set for juries can we ever hope to prevent the “much sorrow and piles of cash” that Mr. Urban speaks of, and finally build a system worthy of the name “justice.”
Totally agree. These suggestions are all valid. Consequences for prosecutorial misbehaviour is a must to see any change in the culture of win at all costs. I’d like to see the same for judges. There are other reforms needed, too, such as the separation of forensic services from the police, for a start. The legal profession isn’t keen, and the political class doesn’t think there are votes in it, so just ignore it. Only public pressure could sway them all.
Well done, yourself and Dr Moles writing this article and forwarding to the four Federal Attorneys General. As stated we’re behind other similar nations. Unfortunately this doesn’t bring about votes for politicians.
I do not trust the Tasmanian legal system, and have reasons why going back over 80 years…….would love to disclose the facts.