Andrew L. Urban
Sue Neill-Fraser, Henry Keogh, Robert Xie, Marco Rusterholz, Steven Fennell, Stephen ‘Shorty’ Jamieson, Gordon Wood, Cardinal Pell – they are the ‘absent murderers’ whose cases we have reported, convicted of murder despite being absent from the crime scene at the time. Of these eight, only four were later exonerated: Henry Keogh (after 20 years), Steven Fennell (after six years), Gordon Wood (after four years) and Cardinal Pell (after 404 days).
Prosecutors and Attorneys General will argue that those whose convictions have not been overturned are still officially guilty of murder. But then they would say that. They would also say that the system got it right eventually in those four cases, so all is well with the system. At the very least, that is a callous view. No, the system got it wrong and took too long to put things right – when it finally did. But the appeal courts in all these cases failed to correct the faults at trial.
What these cases demonstrate is that even if you weren’t there, you could be convicted and jailed
In the book by former DPP Nicholas Cowdrey (Frank and Fearless, New South) Cowdrey refers to the Wood case and proposes that prosecutors are ‘supposed to push for convictions’.
Here in a nutshell, Cowdrey demonstrates a serious malaise in our legal system: prosecutors are NOT supposed to push for convictions. They are supposed to be officers of the court seeking the truth. That such a high profile former prosecutor has no insight into the error of this sentiment is disturbing.
Here is the context in which Cowdrey frames this sentiment, in his chapter on the Gordon Wood case, when he gets to the appeal against the murder conviction: “The Court of Criminal Appeal was convinced the prosecutor (Senior Crown Prosecutor Mark Tedeschi QC) had pushed far too hard for a conviction. It was also convinced that Associate Professor Cross, the expert witness who claimed there was no way Caroline could have jumped or dived to the place she was thought to have landed, had fought inappropriately for a conviction–and expert witnesses are supposed to be impartial. That might sound like a strange complaint about the prosecutor. Aren’t prosecutors supposed to push for convictions?”
A little later in the chapter, Cowdrey contradicts his earlier statement, saying: ”A prosecutor’s principal role is to assist the court to arrive at the truth. It is never about winning at all costs.”
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. 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.
When Wood took the State of NSW and Tedeschi to court for malicious prosecution, Justice Elizabeth Fullerton stopped a tad short of finding Tedeschi guilty. “In order to be satisfied that Mr Tedeschi’s evidence in these proceedings exposes that his dominant purpose in prosecuting the plaintiff was malicious in the legal sense, I would need to be satisfied to a high level of confidence that he either gave deliberately dishonest evidence under cross-examination in order to conceal the fact that he knew at the time of the trial that the way he was conducting the proceedings as Crown Prosecutor was contrary to the standards of propriety by which he was bound (because he was self-consciously striving for a conviction at all costs), or that his evidence in these proceedings was so wholly untenable as to be unworthy of any credit, that his explanation should be disregarded, or given no weight for that reason.”
She found that Tedeschi had stretched “impermissibly” for a conviction.
Steven Fennell was given a life sentence in 2016 for the murder of 85-year-old Liselotte Watson on Macleay Island in Moreton Bay. Watson was bludgeoned to death in her home in November 2012 and Fennell had been in custody since his arrest in March 2013.
To their eternal shame, the Queensland Court of Appeal (Gotterson & Philippides JJA, Byrne SJA) unanimously dismissed the appeal, ruling that the circumstantial evidence was sufficient for a jury to find guilt and reject alternative hypotheses.
The High Court in Canberra adjourned for just four minutes before resuming at 2.45pm on Wednesday, September 11, 2019, with a unanimous decision that Steven Fennell’s appeal against his murder conviction should be allowed. A verdict of acquittal was entered. Contradicting the Appeal court, the High Court said the jury’s verdict was unreasonable.
There was evidence Fennell was on his home computer when prosecutors suggested he was at Ms Watson’s house cleaning up after the murder.
“I’ve said all along I don’t believe anybody intended to kill Mrs Watson, I believe it was a bungled burglary,” he said after rejoining his wife Helen and son Adam.
An alibi partly but crucially provided by a computer also figures in the case of Robert Xie, but his conviction has not been overturned. He languishes in prison, after his appeal was dismissed and before he can mount an appeal to seek leave to appeal to the High Court, as Fennell had done.
Robert and his wife Kathy were on their computers until 2am the night of the murders, before both went to bed. The prosecution’s story worked around this by suggesting but unable to prove that the Lin family murders of which Xie was charged, were committed after 2am. The judge’s directions were not helpful and the jury convicted Xie of the five murders, without any direct physical proof.
With aggressive prosecutors, unreliable juries and incompetent appeal courts, a judicial review (eg Folbigg case, a judge, no jury, no trial) is the last line of defence against wrongful convictions staying wrongful. That requires a State Attorney-General to instigate one.
It is at this point that the need for a national network of a Criminal Cases Review Commission is highlighted. Had Australia established such a network, with each jurisdiction referring cases to it and acting on its eventual recommendations, Robert Xie, for example, would have had a road to justice, without the financial and legal constraints required of a High Court application.
A CCRC would be of help to all those wrongfully convicted who are stuck behind barriers to genuine justice.
Such a network is at the juncture of politics and the legal system, needing a Federal Attorney-General to instigate it. A champion of justice … not just a placeholder.