Andrew L. Urban
A bit harsh, that headline? Well, sure, there are judges and prosecutors who do not generally use those tools, but in the world of wrongful convictions, it is not uncommon. In trials and in appeals, these nasties often turn up, no doubt making their more ethical, professional colleagues squirm. In our unrelenting campaign arguing for the establishment of a national framework for a Criminal Cases Review Commission (CCRC), we publish the following examples.
While the existence of a CCRC would not by itself reduce the incidence of these transgressions, we believe the successful review of cases would lead to the broader exposure of them and consequently encourage greater adherence to the rules in court. Ever the optimist, that’s us …
The following random examples serve to show how easily a defendant can be required to prove their innocence or how speculation poisons the mind of the jury or the judge … and how some appeal judges fail to arrest a miscarriage of justice. We should also point out that sometimes defence counsel fails to robustly and thoroughly represent their client’s best interests.
For full coverage of the cases please select from the menu on the right.
Sue Neill-Fraser was on trial for the murder of her partner Bob Chappell, who went missing from their yacht on the Derwent in Hobart on Australia Day 2009. His body has never been found.
TRIAL TRANSCRIPT P 1296 12 OCT 2010
HIS HONOUR BLOW J: Well what were you starting to say, you think there are some tools missing – had you – is there more you were trying to say?
WITNESS SUE NEILL-FRASER: Yes.
HIS HONOUR: Yes, what else do you want to say?
WITNESS SUE NEILL-FRASER: Your Honour, I would like to say that I am very fairly certain they went missing at the Cleanlift (slipping system facility).
CROWN PROSECUTOR MR ELLIS SC: Yeah. How do you know that?……
WITNESS SUE NEILL-FRASER: Because we lost quite a lot of other things out there too while the boat was there.
MR ELLIS SC: Did you? Did you tell police that?……….
WITNESS SUE NEILL-FRASER: Oh I may or may not have. The boat wasn’t locked for days so…
MR ELLIS SC: I suggest you didn’t tell police that you’d been missing tools from out there………
WITNESS SUE NEILL-FRASER: I can’t remember whether I did or not.
MR ELLIS SC: Including, you said, wrenches……..
WITNESS SUE NEILL-FRASER: Yes, the set of wrenches.
MR ELLIS SC: That’s right. Big wrenches?……
WITNESS SUE NEILL-FRASER: No, they were the little ones for working on the, you know, they come in a plastic wrapped up thing
and they’re for working on the small nuts on the motor.
MR ELLIS SC: Oh really, not big wrenches, no big wrenches missing?………
WITNESS SUE NEILL-FRASER: I think we – I think we had a set of Stillsons on board.
MR ELLIS SC: Oh, they’re not missing?…….
WITNESS SUE NEILL-FRASER: I don’t think so.
MR ELLIS SC: No? Wrenches have been in your mind through this trial, haven’t they? It was a wrench, wasn’t it, or a similar sort of tool with which you struck Mr Chappell from behind and killed him……..
WITNESS SUE NEILL-FRASER: Mr Ellis, I have never struck anybody, let alone somebody I loved dearly.
This brief exchange reveals the prosecutor’s impermissible speculation about a murder weapon (wrench) and impermissible reversal of the onus of proof (no evidentiary support). Not a peep from the trial judge to stop him; not a peep from defence counsel objecting.
Frank Valentine on trial (judge alone, Noman J) for multiple historical sexual assault charges as claimed by five females who were teenage delinquents at the time, inmates at Parramatta Training School for Girls, and one male at a different institution.
Excerpts from grounds of appeal document (comprising over 500 items)
- It is evident from the Reasons as a whole that the trial judge elevated subjective conclusions at the expense of the intrinsic demerit in the evidence. For example, complainant as having “not exaggerated” her allegations at trial measured against nothing in particular was to presuppose the allegations were true.
- The Trial Exhibit to which her Honour was referring to at this stage in the Reasons, was not dated “1973” but in fact 13 July 1971.
Indicative of her bias, the judge turned a positive performance assessment which referred to Noel’s “integrity and high personal standards” into an attack on those very qualities.
- In conclusion the trial judge said at [394]:
“I consider that the accused was an unimpressive and unreliable witness. His lack of reliability on key issues causes me to reject his denials of offending. I, therefore, disregard his evidence and am required to focus on the other evidence.” (Emphasis added)
- The “key issues” which underpinned her Honour rejecting the appellant’s evidence in its entirety were not identified at this part of the Reasons [at 394].
- It is critical to observe that at no point in the Reasons did her Honour refer to an aspect of the appellant’s evidence which, measured against the available objective evidence, was dishonest.
Robert Xie was charged with the murder of five members of his wife’s family, including his two pre-teen nephews, whom he loved. His ailibi was confirmed first on the day after the bodies were discovered when Xie was not a person of interest and later on oath at trial. The prosecution tried hard to negate the alibi which was fatal to their case.
The following exchange took place with the jury absent (during the defence closing by Robert Webb appearing for Xie) –
WEBB: So if it may be submitted, your Honour, would your Honour permit and – would it be permissible for your Honour to say to the jury “if you thought in respect of the evidence of Kathy Lin that there was a reasonable possibility that Kathy Lin was not mistaken and gave honest evidence, that you’d be duty bound to acquit”?
HER HONOUR: I’m not sure that I’d go that far, Mr Webb.
Webb is asking the judge to outline a likely reason for the jury to entertain reasonable doubt, but Her Honour seems antipathetic to that crucial point.
Later, she tells the jury:
I direct you that if the Crown is to prove beyond reasonable doubt the first element of the offence of murder, the Crown must remove or eliminate to your satisfaction any reasonable possibility that the accused was at home in bed asleep with his wife at the time the deceased were killed.
If the Crown does not satisfy you beyond reasonable doubt to reject the alibi, it follows that the Crown will have failed to have proved the first element of the offence of murder and you must acquit the accused.
This direction is very close to the standard Alibi Direction outlined in the Bench Book. The only difference is the omission of the words “as asserted by the alibi evidence”. By that omission, Her Honour’s direction is not offering the jury the clear instruction that if they do entertain even “a reasonable possibility” of Kathy Lin’s evidence being true (‘as asserted…’), they must acquit.
Marco Rusterholz was convicted of a double murder in Tasmania. Here is an example of three cohorts contributing to the wrongful conviction: the prosecution intent on a conviction not the truth; the trial judge failing to properly direct the jury; the appeal judges incoherence; and a jury failing to act rationally in considering the various failures in the evidence. Marco, 51 at the time, pleaded not guilty to the 2012 murders. The case against him was entirely circumstantial.
“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.”
The appeal judges agreed 3-0 that the circumstantial case did not prove guilt beyond reasonable doubt. So why did they dismiss the appeal?
Kathleen Folbigg was convicted of murdering her four baby children. At her trial in 2003, prosecutor Mark Tedeschi compared the likelihood of four children in the same family dying of natural causes to pigs flying. It was the Crown’s alternative to relying on the discredited and inadmissible Meadows’ Law, a statistical formulation claiming that three or more such deaths must be regarded as murder. But Tedeschi’s pigs do fly, as demonstrated in the comprehensive 2021 submission by Folbigg’s barrister Dr Robert Cavanagh and solicitor Rhanee Rego – as confirmed by the results of the 2023 inquiry that exonerated Folbigg.
The Cavanagh/Rego submission focuses on “the fundamental errors that occurred at trial and on appeal regarding coincidence and tendency evidence.”
It concludes with a damning declaration: “As illustrated …the coincidence and tendency evidence advanced by the Crown at trial, and subsequently approved in appeals, was flawed. This caused substantial prejudice to Ms Folbigg: she was required to prove her innocence because four deaths in one family from natural causes is so rare, it ought to be regarded as impossible. Ms Folbigg should never have had this onus placed on her and it poisoned every appeal and review of this case to date (as at August 2021).”
(By the way, Tedeschi did not refer to the likelihood or otherwise of four children in the same family being murdered …)