Andrew L. Urban
A search for examples of how judges and prosecutors are held accountable for serious professional error or misconduct reveals that while they are accountable in theory, in reality they are not. This leniency emboldens misconduct and keeps open the gates to wrongful convictions.
Judges in Australia enjoy strong protections, including judicial immunity, which shields them from civil or criminal liability for ‘errors made in good faith while performing judicial functions’. Accountability ostensibly operates through a multi-layered system that distinguishes between errors in judgment (e.g., misapplying the law or facts) and misconduct (e.g., bias, improper behaviour, or incapacity).
Errors are theoretically corrected through the appeals process, where higher courts scrutinise decisions for legal or factual mistakes. Not always accurately … But, as critics note, the relevant commissions involved filter aggressively, protecting judges’ independence but limiting transparency.
In our Red Herring series, we identified 8 judges and 3 prosecutors who we believe should have been held accountable for their actions in the three cases we examined. None were. Neither were hardly any of their peers in the past 20 years, with the strange exception of Justice Lex Lasry in 2023, who resigned after a complaint by the Victorian DPP. The complaint cantered on his handling of the case DPP v Tuteru (S ECR 2021 0188 & S ECR 2022 0024), linked to the 2020 Eastern Freeway crash that killed four police officers. Not really in the ambit of wrongful convictions …
Prosecutors (usually in Directors of Public Prosecutions offices) face even stronger functional immunity than judges, with accountability emphasizing appeals for errors and professional discipline for misconduct. Personal sanctions are even rarer than for judges, often limited to internal reviews, terminations, or bar complaints—none led to disbarment in this 20 year period. Bias/errors typically result in quashed convictions (e.g., non-disclosure) without individual penalties, per guidelines like the NSW DPP’s. No widespread “systemic” sanctions emerged, but inquiries (e.g., into high-profile miscarriages) prompted training reforms.
The only example we found of allegations of misconduct/bias was against Shane Drumgold SC in the Bruce Lehrmann rape trial, in which he was alleged to have used poor judgement. The Sofronoff Board of Inquiry (2023) found Drumgold had engaged in “deplorable” conduct. The ACT Bar Association cleared Drumgold (October 2024) and no formal sanction was issued.
The one case where accountability was real, NSW DPP Josh McKenzie was convicted and fined $1,500 in 2016 and suspended for 6 months after pleading guilty to misconduct in public office for unauthorised access to police databases for personal use. It was the first such conviction for a prosecutor.
Of the handful of other instances of allegations against prosecutors in the past 20 years, it was the systemic failure in the WA case of R v Mallard that led to the High Court quashing the conviction. No individuals were sanctioned. Errors like non-disclosure lead to appeals (e.g., 10+ quashed convictions via non-disclosure since 2005), not discipline.
immunity shield
In other words, if the wrongly convicted is lucky enough and sufficiently well resourced, there is a chance the error will be corrected at appeal. But this is by no means guaranteed, as our history of cases shows. Immunity shields most prosecutors, even in such clear cases of egregious error such as the three we identify in the Red Herring series.
The Red Herring Certificate identifies prosecutors and judges who, in our sincere opinion supported by evidence, have helped bring about or maintain wrongful convictions. The Inaugural Red Herring Certificate went to Tim Ellis SC, the former Tasmanian DPP whose prosecution of Sue Neill-Fraser led to what is widely regarded as a wrongful conviction. He called every element (dozens of times) that didn’t fit his narrative a red herring.
For another horrendous example of a wrongful conviction that has never been corrected – and those responsible never held accountable – and where the trial judge, the jury and the appeal judges all failed in their respective duties to deliver justice, see the case of Marco Rusterholz in Tasmania.
“What was unique about this case,” comments his lawyer at the appeal, Fabiano Cangelosi, “was that at trial the defence were not just saying that the defendant had not committed the crimes, but were presenting evidence that a person named Matthew Coventry actually had — and moreover, Coventry was called as a Crown witness.” That must be taken into consideration by the jury … and the judge ought to have addressed that issue.”
Research compiled with the assistance of AI.