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.
The simple pub test I use is this:
If a case is entirely circumstantial, and the last known person to have seen the victim alive later lies about their whereabouts during the critical hours when the victim was likely attacked — and that same person also has an unexplained physical injury — then it is common sense that they will rank high on any reasonable suspect list.
Comments on the subject of Meaghan Vass and her DNA are (again) closed.
Andrew. Much appreciate your many thought provoking articles of recent times . Many of these subjects don’t necessarily provoke comment from the readers – you have said what needs to be said.
One common phrase needs dissecting- “tunnel vision”.
Tunnel vision should not be used as a cop out for mongrel behaviour! The bastards are not evil – they just got tunnel vision. That excuse fails the pub test. Any police and police prosecutor and their mate the judge – who use the full gamut of jury fooling dishonest and disgusting manipulation must not be excused – that’s not tunnel vision – that’s evil.
We can excuse Appeals Court judges – they got to be halfwitted – the pub test says
so – emphatically. Difficult to condem the half-witted – that’s just low social IQ and
sometimes maybe even slightly mentally demented . 12 healthy builders labourers would do a better job of it- majority verdict.
But as for the primary Tedeschistically manipulating and conniving – Manockistic flexible forensic jury stacking and or jury fooling police prosecutor judge team – they fail the “tunnel vision” pub test –
they is evil..in pub speak..
Does It Pass the Pub Test?
When you strip away the legal jargon, the courtroom theatre, and the veneer of official certainty, some cases collapse under the simplest question: does any of this make sense to an ordinary person?
And time after time, we’re confronted with situations where the answer is a resounding no.
Take the idea that someone accused of a brutal, life destroying crime would casually “confess” to a stranger in jail; a stranger whose very role is to gather intelligence. If you floated that theory at any pub in Australia, you’d be laughed out the door. And yet, ideas like this somehow sail through courts unchecked. That gap, between everyday logic and institutional belief — is where miscarriages of justice grow.
Or consider the obsession with tunnel-visioned theories. Once police form a hypothesis, everyone else seems to fall in line. Common sense would demand that investigators keep looking if the evidence doesn’t stack up. Instead, we see situations where alternative suspects are ignored, contradictory evidence dismissed, and timelines accepted that wouldn’t survive a 30-second grilling at the pub.
Even worse is when family dynamics and human behaviour get rewritten to fit a narrative. The notion that a loving, close-knit relative would savagely kill children they adored doesn’t just strain credulity , it breaks it. Common sense says: if the motive doesn’t exist, and the evidence isn’t there, you keep searching. But in some cases, the search stops the moment a convenient suspect appears.
Timelines are another one. If the alleged timeframe for a crime rests on nothing more than assertion, and if the alibi emerges immediately, long before anyone is under suspicion — that alone should make any rational person pause. That’s the pub test at work: does the story fit the facts, or are the facts being forced to fit the story?
And then there are notorious examples where the system itself eventually admits the obvious: Pell’s wrongful conviction being overturned because a “rational” jury would have held reasonable doubt. Rationality and common sense are the same currency and it’s astonishing how often they go missing in the lower courts.
We also can’t ignore cases where historical allegations rely solely on memory, particularly when those memories clash with behaviour, social interactions, or even financial incentives that any ordinary person would treat with caution.
These aren’t niche quirks or obscure legal doctrines. They’re basic, everyday insights — the things any of us rely on when judging whether a story stacks up. When legal processes drift so far from normal human reasoning that they no longer pass the pub test, the consequences are horrific: innocent people jailed, real offenders never found, families destroyed, and public trust eroded.
Maybe the system doesn’t need more complexity. Maybe it needs something far simpler: decision-makers who are brave enough to ask the most obvious question of all
“Does this actually make sense?”
Because if it doesn’t pass the pub test, it shouldn’t pass anywhere.
I have always doubted the late phone call to SNF from an unknown male……what did it really mean, what or who was behind the need for this identifiable male to make such a call.
Re: the Tasmanian Justice, Legal and Police system – I have no faith in any of them – and especially of recent times when a paedophile policeman who ?topped himself was given a Police funeral – disgusting.