Andrew L. Urban
By the time Robert Xie faced his fourth trial in June 2016 for the murder of the Lin family, he was physically, mentally – and financially – exhausted. Convicted, the appeal was still to come … he had to rely on the public defender’s office. It didn’t end well. This scenario is far from unique, even when there are less than four trials. The Crown holds significant resource advantages over defendants — including dedicated investigators, expert witnesses, and unlimited funding. Fair it ain’t. We propose some overdue reforms.
The Australian criminal justice system operates as an adversarial process , where the prosecution (typically the state-funded Director of Public Prosecutions or Crown prosecutors) often holds significant resource advantages — including dedicated investigators, expert witnesses, and unlimited funding — over defendants, many of whom rely on stretched legal aid or private representation they can barely afford.
This imbalance raises concerns about equality of arms (the need for equal resources), a principle embedded in the common law right to a fair trial (as recognised in cases like Dietrich v The Queen (1992) and international human rights standards incorporated via the Human Rights Act in jurisdictions like Victoria and the ACT). Courts have held that a trial may be unfair if the defendant faces substantial procedural disadvantage in presenting their case. In Dietrich’s case, the absence of counsel for him made the trial unfair, so his conviction was quashed and a retrial ordered (though the Court did not mandate the state must always pay; it simply said the trial cannot proceed without counsel).
While perfect parity is impossible, several practical reforms could partly but meaningfully improve the fairness to the defence:
### 1. Substantially Increase and Stabilise Legal Aid Funding
Legal Aid Commissions in every state/territory are chronically underfunded, with demand far outstripping supply. Recent reports (e.g., National Legal Aid’s Justice on the Brink (2023) and the first national census of legal aid practitioners) show that stagnant fees — often unchanged for over a decade and 2–3 times lower than private rates — deter experienced lawyers from taking legal aid work, especially in complex criminal matters. This leads to inexperienced counsel, unremunerated hours, and refusals of grants (as seen in the Northern Territory Legal Aid crisis in 2025, where new non-custodial criminal matters were declined).
Proposals :
– Commonwealth and state/territory governments should immediately boost baseline funding (estimates suggest an extra $400–500 million nationally annually would close much of the gap) and index fees to inflation/court scales.
– Tie funding to caseload complexity.
– Expand “duty lawyer” schemes and public defender offices (like NSW’s Public Defenders) to reduce reliance on private practitioners who subsidise the system out of pocket.
### 2. Strengthen and Enforce Prosecution Disclosure Obligations
Australian prosecutors already have a strict duty of disclosure (going beyond adversaries in many systems) to provide all material that might assist the defence, including unused material. However, late or incomplete disclosure remains a frequent complaint and source of appeals. The latest Etter/Selby report, for example, reveals such malpractice in the Sue Neill-Fraser case.
Proposals :
– Legislate earlier, mandatory “full” disclosure timelines (e.g., Victoria’s ongoing committal reform discussions).
– Create independent disclosure compliance units or sanctions for breaches.
– Fund defence access to prosecution-held forensic/electronic material (e.g., via shared digital platforms).
### 3. Expand State-Funded Defence Resources for Complex Cases
In serious/indictable matters, courts can stay proceedings until legal representation is provided (Dietrich principle), but this is a blunt tool and rarely triggers adequate funding.
Proposals :
– Establish or expand specialist public defender services in every jurisdiction (beyond NSW/Victoria models) with their own investigators and experts.
– Create a “defence expert fund” (similar to some European systems) where indigent defendants can apply for state-funded forensic, medical, or psychiatric experts without means-testing delays.
– Pilot “equality of arms” assessments in high-stakes trials, where judges proactively order additional defence resources if a clear imbalance risks unfairness.
### 4. Improve Early Intervention and Case Management
Imbalances can arise from defendants pleading guilty early due to pressure or poor advice, or from protracted proceedings exhausting limited defence resources.
Proposals :
– Expand specialist courts (e.g., drug, mental health, Koori/Indigenous courts) that reduce adversarial intensity and resource drain.
– Mandate earlier charge resolution conferences with independent oversight.
– Encourage restorative justice pathways where appropriate to divert matters from full trials.
### 5. Structural and Oversight Reforms
– Introduce periodic independent reviews of prosecutorial resourcing vs legal aid (similar to productivity inquiries).
– Strengthen judicial case management powers to limit prosecution “over-charging” or excessive witnesses/exhibits that disproportionately burden under-resourced defences.
– Consider (controversially) modest caps on prosecution expert numbers or costs in certain cases, balanced against public interest.
These measures would not eliminate the state’s inherent advantages but would better align the system with the fair trial guarantee. Evidence from comparable jurisdictions (e.g., expanded public defender models in parts of Canada and the UK) shows such reforms reduce wrongful convictions, appeals, and overall system costs by resolving matters more efficiently and justly. Ultimately, political will and sustained bipartisan funding commitments are required — as multiple inquiries (ALRC, state law reform commissions, Productivity Commission) have repeatedly recommended over decades.
The legal system has consistently failed to address needed reforms, notably in the critical area of forensics. Reforms have been repeatedly recommended by inquiries (e.g., Vincent Review 2014, ALRC reports, productivity commissions) and advocates (e.g., Civil Liberties Australia calling for a UK-style independent regulator). While some labs claim “operational independence,” the governance ties to police remain a core vulnerability. Full separation, coupled with a state-funded “defence forensic fund,” would directly address the resource imbalance you raised, making the adversarial system fairer without compromising legitimate prosecutions.
On top of the vast discrepancy in resources, the Crown also enjoys the benefits of embracing the forensic services in a relationship nobody can rationally approve.
The structural proximity of forensic labs to police undermines true scientific independence. Key arguments for full separation and funded defence access include:
- Eliminating Institutional Bias and Cognitive/Confirmation Bias
Forensic scientists working under police command structures (where the Police Commissioner is often the ultimate boss) may experience explicit or implicit pressure to produce results aligned with investigative hypotheses. International reviews (e.g., the 2009 US National Academy of Sciences report) and Australian commentators highlight how “task-relevant” information shared by police can lead to confirmation bias, where analysts interpret ambiguous evidence (e.g., mixed DNA profiles, fingerprints, or pathology) in ways that support prosecution theories. Separation ensures science serves the court, not the police narrative.
An example of this weakness in the system comes from the case of Gordon Wood. Gordon Wood was convicted in 2008 of the murder of Caroline Byrne, whose body was found early morning on June 8, 1995, on the rocks at The Gap, a notorious suicide spot on Sydney’s Eastern coast. In 2012 the Court of Criminal Appeal set aside his conviction and entered a verdict of acquittal (thank goodness). The Chief Justice made it clear in his judgement that even the most basic elements of the case had failed to be established. “I am not persuaded that Wood was at The Gap at the relevant time.” He concluded that the verdict of the jury could not be supported having regard to the evidence. The main witnesses for the prosecution were the investigator, Detective Inspector Jacob, and the expert witness, Assoc. Professor Rod Cross. They had worked closely with each other, and, according to the Chief Justice, they had presented evidence which was either inadmissible or unreliable.
- Enhancing Perceived and Actual Impartiality
Even if individual scientists strive for objectivity, the perception of bias erodes public confidence in verdicts. High-profile miscarriages (e.g., Farah Jama’s wrongful rape conviction due to DNA contamination; Lindy Chamberlain; Henry Keogh’s murder conviction based on flawed pathology; the Queensland Forensic DNA Inquiry exposing systemic issues) demonstrate how police-linked forensics can contribute to unsafe convictions. An independent body (modelled on the UK’s Forensic Science Regulator) would enforce uniform standards and allow open challenge without fear of institutional repercussions.
- Reducing Miscarriages of Justice and Enabling Effective Defence Challenge
Prosecution forensics are state-funded and exhaustive; defendants rarely have equivalent resources to re-test samples or commission independent experts. Legal aid seldom covers costly re-analysis, leaving defence unable to properly scrutinise prosecution evidence (as required for “equality of arms” under human rights law. Funded defence access to independent labs would allow routine re-testing, identification of errors (e.g., contamination, overstatement of probative value), and presentation of alternative interpretations — directly preventing wrongful convictions and reducing appeals.
- Improving Scientific Quality, Validation, and Oversight
Police-controlled labs prioritise volume and investigative utility over rigorous research/validation. Critics (including Civil Liberties Australia and inquiries like the 2022 Queensland Commission of Inquiry into Forensic DNA Testing) note inadequate accreditation, outdated methods, and lack of blind testing. Independence would align Australia with best-practice models (e.g., Netherlands Forensic Institute, fully separate from police) and create a national regulator to mandate error rates, proficiency testing, and transparent reporting — addressing warnings from bodies like the US NAS that many forensic techniques lack scientific rigour.
- Cost-Effectiveness and Systemic Efficiency
Preventing wrongful convictions saves enormous downstream costs (imprisonment, appeals, compensation — e.g., Jama received $525,000). Independent oversight reduces “rogue” results or scandals (e.g., sacked scientists producing desired outcomes) and builds trust, encouraging guilty pleas where evidence is genuinely strong.
Especially in the absence of significant reforms, Australia needs a robust Criminal Cases Review Commission.