Appeals Are Not Enough: A System That Refuses to Learn

The legal system resists correcting its mistakes; it avoids learning from them. This was a post responding to our recent article about the failures of appeals, from reader STEVEN FENNELL, whose personal experience informs his opinions. His observations are so pertinent we are republishing his comment as a stand alone article to ensure wide readership.

The work of Andrew Urban and Dr Bob Moles exposes a legal system that remains deeply resistant to revisiting its own conclusions. Their analysis of the “fresh and compelling evidence” test highlights a fundamental problem in Australian criminal appeals. The system places procedural barriers in front of those seeking to correct wrongful convictions, while simultaneously maintaining a fiction that those barriers are necessary for finality.

Yet even this critique, compelling as it is, only addresses part of the problem. I posit that the deeper failure lies not only in how the system resists correcting its mistakes, but in how it avoids learning from them.

When a conviction is overturned on appeal, the public narrative is one of resolution. An error has been identified, the conviction quashed, and the individual released. In formal terms, justice has been restored. But in practical terms, the moment of acquittal often marks the end of scrutiny rather than the beginning of it.

There is no structured or compulsory process requiring police or prosecutors to revisit the decisions that led to the wrongful conviction. There is no obligation to examine why particular evidence was relied upon, why contradictory material was discounted, or why a case that ultimately proved unsafe was considered viable in the first place. Most strikingly, there is no formal mechanism through which the person who lived through the wrongful conviction can contribute to that analysis. [emphasis added]

Instead, the individual is released and left to rebuild their life. Some; as I have pursue compensation. Others withdraw entirely from the system that failed them. What is notably absent is any expectation that the system itself will listen.

This absence reflects a broader structural issue in how criminal cases are initiated and sustained. In general terms, police investigate, form the view that charges should be laid, and assemble the evidentiary brief. That brief is then provided to prosecutors, who assess whether there is a reasonable prospect of conviction and whether proceeding is in the public interest. On paper, this division of responsibility is intended to provide a safeguard; an independent prosecutorial assessment standing between investigation and trial.

In practice, the distinction is less clear. Once a charge has been laid and a narrative established, the momentum of the case can become difficult to arrest. Prosecutors are asked to evaluate a case that has already been framed, often under conditions of public scrutiny and expectation.

the elevation of evidence that is demonstrably unreliable

In serious matters, media attention, political pressure, and community sentiment can all operate, subtly or overtly, on the decision to proceed. The result is that the theoretical independence of the prosecutorial function may be compromised by the context in which it operates.

Within that environment, evidentiary weaknesses can be reinterpreted rather than rejected. One of the least examined contributors to wrongful convictions is not the presence of entirely false evidence, but the elevation of evidence that is demonstrably unreliable. Cases arise in which key witnesses present accounts marked by internal contradictions, inconsistencies over time, or clear issues with perception and recall.

These weaknesses may be known to investigators, yet the evidence is retained and relied upon because it remains the only available pathway to advancing the case.
At that point, the investigative process can shift in character. Rather than testing competing hypotheses, it begins to consolidate around a chosen conclusion. A person of interest is identified, and efforts are directed toward locating material capable of supporting that identification. This is not a secret it is openly discussed in police investigations logs. This action does not necessarily involve deliberate misconduct; it can arise from institutional pressure to resolve serious offences. Now combined with a belief, sometimes untested, that the correct individual has been identified. However, the effect is the same.

Evidence is interpreted in a manner that favours progression toward charge and prosecution, rather than rigorous exclusion. The treatment of unreliable witnesses illustrates the problem in particularly stark terms. There exists a narrow but significant space between what is legally permissible and what is ethically defensible.

A witness may be treated as credible in the absence of a formal diagnosis of mental illness, even where their own statements reveal contradictions or instability. Legally, such an approach may be sustainable. Morally, it raises more serious questions. If investigators are aware that a witness’s account is inconsistent, yet proceed on the basis that those inconsistencies can be explained away or ignored, the issue is no longer one of evidentiary sufficiency but of institutional integrity.

When such cases collapse on appeal, these underlying decisions are rarely revisited in any meaningful way. The appeal process focuses on whether the conviction can stand, not on how it came to be. Once the conviction is quashed, the system moves on. There is no requirement for police to justify their reliance on particular evidence, nor for prosecutors to explain how the case satisfied the threshold for proceeding.

a critical omission

The individual who has been acquitted may attempt to raise these issues through complaint mechanisms, but such avenues are typically slow, opaque, and limited in their capacity to drive systemic change. The urgency that existed while the person was in custody dissipates once they are released.

The result is a system that corrects errors without absorbing their lessons. Each wrongful conviction is treated as an isolated event rather than as data capable of informing future decision-making. This is a critical omission. If the objective is not only to remedy injustice but to prevent its recurrence, then the system must create mechanisms for structured reflection.

A logical reform would be the introduction of a compulsory post-acquittal review process in cases where convictions are overturned. Such a process would not be punitive in nature, but analytical. It would require police and prosecutors to account for the evidentiary decisions made during the investigation and prosecution, including the treatment of contradictory material and the assessment of witness reliability.

Importantly, it would provide a formal avenue for the acquitted individual to contribute to that review, whether through written submissions, oral evidence, or both.

The value of such a process lies not in attributing blame, but in capturing insight. Those who have experienced wrongful conviction are uniquely positioned to identify the points at which the system failed to test its own assumptions. Without their input, the analysis remains incomplete. Without compulsion, it is unlikely to occur at all.
The emphasis within public discourse tends to rest on high-profile miscarriages of justice, particularly those that remain unresolved. While such cases are important, they can obscure a broader reality. Individuals who have successfully appealed their convictions occupy an ambiguous space: no longer the subject of an injustice requiring correction, but not fully acknowledged as a source of knowledge about how that injustice occurred. Their cases disappear from attention at precisely the moment they could be most instructive.

This reflects a deeper institutional tendency toward closure rather than inquiry. Finality is treated as an endpoint, rather than as an opportunity to examine the path taken. In that sense, the system does not merely fail; it declines to remember.
Urban and Moles are correct to identify the restrictive nature of current appeal mechanisms and the reluctance of courts to engage with fresh challenges to conviction.

unwilling to learn

However, even a perfectly functioning appeal system would address only the consequences of error, not its causes. If equal attention were directed toward the quality of decision-making at the point of charge toward ensuring that evidence is rigorously tested before a person enters the trial process then the incidence of wrongful convictions would necessarily diminish.

Appeals are, by definition, a remedy of last resort. A system that relies upon them as its primary safeguard has already accepted a significant level of failure. The more difficult task is to prevent unsafe cases from proceeding in the first place, and to ensure that when failures do occur, they are examined in a way that informs future practice.

Until that occurs, wrongful convictions will continue to be corrected in isolation, without altering the conditions that produced them. The system will remain capable of acknowledging error, but unwilling to learn from it.

As a point of record I will revisit this post after my civil case has been concluded as there are matters that I could introduce that are beyond belief. I am bound to confidentially at this point in time, for those that were thinking of responding by seeking specific examples.

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The author investigates the circumstances that led to the trial and conviction of child welfare officer Frank Valentine on charges of historical sexual and physical abuse at the Parramatta Training School for Girls decades earlier. It is his fifth book exposing what he considers to be unsafe convictions.

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This book examines the trials and conviction of Robert Xie. After four trials there are many unanswered questions.
I applaud the author for asking the questions that need to be answered.The introduction issues the challenge “This book sets out to prove he was telling the truth.

Sadly, this is the task every accused who has been subjected to the carefully orchestrated media campaigns now faces. The golden thread our system was founded on “Innocent until proven guilty” no longer applies. Anyone with only access to media reports would have no concerns that Xie’s convictions were unsafe and unsatisfactory.

I am overwhelmed by the conclusion that Robert Xie’s convictions are unsafe and unsatisfactory and my doubt is more than reasonable; it is substantial.

Stuart Tipple
Former lawyer representing Lindy Chamberlain

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