Andrew L. Urban
Common sense would tell you that a migrant with imperfect English accused of murdering a whole family but claiming to be innocent would not make a confession to negate his alibi to a stranger in jail, even if he didn’t know the stranger was a police snitch? Yet even appeal judges bought the prosecution’s assertion. When gullibility – or bias – negates common sense ….
To a hammer, everything looks like a nail. But a hammer needs common sense. What if it’s a screw? Many prosecutors are much like a hammer when facing the accused. In some wrongful convictions (according to our analysis), aspects of a prosecution’s circumstantial case seem to have been at odds with common sense. Which may explain why the system gets it wrong.
I daren’t publish the grotesque crime scene photos taken at the Lin family home; if you came across the battered, unrecognisable faces of the victims, you would be entitled to sue me for causing mental/emotional distress. This was all the work of uncle Robert, claimed the prosecution, whose two much loved pre-teen nephews were among those slaughtered. There was no evidence that uncle Robert had indeed committed these savage murders. Police came up empty handed after two years of looking for persons of interest. Ignoring evidence that it was a loving, close knit family, police manufactured a case against uncle Robert. Had they not been as lacking in common sense as the ‘hammer’, they might have continued their search for suspects, before strangling common sense. And that was only the first and most obvious common sense stop sign they ignored in the drive to a conviction – and a life sentence.
During her summing up, trial judge Fullerton J repeatedly gave the alibi directions with the embedded timeframe that the murders were committed after 2:00am – as the Crown alleged, without proof. The alibi was confirmed in the first interview with uncle Robert’s wife, before he was declared a person of interest. It wasn’t made up because it was needed.
Having sat through the failed appeal I can report that the system is crowded with lawyers and judges who need more training – and a dose of common sense. I believe the legal profession collectively leave the real world when it enters the court room. They may individually exercise normal common sense at home and at the drinking bar … not so much at the legal bar. The appeal judges couldn’t grasp this at all. As an essential point in negating his alibi, that was the single most critical element of the prosecution case. The fact that the case was fraudulent could well make this case one for both the text books and the legal mistakes book.
Lawyers might believe they are applying common sense when they’re actually applying confirmation bias, say. Common sense would demand that if the forensic evidence is weak, or the timeline improbable, suspicion should increase. Instead, biases push in the opposite direction. Miscarriage of justice follows.
Once police adopt a theory, the justice system often aligns around it — a form of institutional momentum. Common sense would require reassessing such theories against the various elements, from timelines to alternative suspects.
Alternative suspects were plentiful in the case of a man missing from his new yacht on the Derwent in Hobart, but with tunnel vision, the police targeted Sue Neill-Fraser as his murderer, his partner of 18 years. Police knew of the local youths – some dangerous criminals – who raided anchored boats for items they could steal and sell to buy drugs or beer … But, given how obviously mistaken that oversight, perhaps in that case it wasn’t just an absence of common sense but the presence of malpractice …
The absence of common sense was remarkable in the case of the late Cardinal Pell, so much so that the High Court, when overturning the conviction, said that “a jury acting rationally” would have entertained doubt about the guilt of the accused. Rationality was thus fused to common sense.
Common sense would tell you to be wary of claims of historical sexual abuse where the only evidence is the memories of claimants, perhaps inadvertently false or partly false.
Common sense would tell you that a claimant who subsequent to the alleged claim happily socialised with the accused is to be doubted.
Common sense would tell you to be wary of allegations which if the jury accepts them would lead to financial compensation.
Perhaps we need Common Sense Ombudsmen/women in our courts. As someone once said, knowledge counts but common sense matters.