Andrew L. Urban
‘If it’s justice you want, go to divinity school.’ a Harvard law professor once snapped at a law student, as legend has it. It may be the best short lesson the student learnt on the way to the profession. The law is a law unto itself and Parliament can only make the laws, not police its administration. Consequently, the legal system does not always serve democracy.
It is a well known dictum that a wrongful conviction is a catastrophic failure of the justice system. It was a lawyer who made that observation, but you would be hard pressed to find evidence that the legal system takes it seriously. Nor does it strive to remember that justice delayed is justice denied.
The system finds many ways to delay, hinder or stop attempts to challenge its verdicts, not least by imposing heavy financial barriers and procedural limitations on challenges.
Oh sure, some wrongful convictions get overturned, but too often long after the damage of the conviction has been compounded by financial, psychological and reputational ruin. By the time the High Court quashed his murder conviction within a four minute recess, Steven Fennell had spent 2,373 days incarcerated. The speed of the judges’ decision indicates (and their reasons support) the notion that Fennell should not have been arrested never mind convicted. Nor should have his appeal been dismissed.
What sort of a legal system is it that tolerates such incompetence by police, jurors and judges alike?
Well, it’s the kind that when it convicts the innocent, it inverts the presumption of innocence into a presumption of guilt once charged — the exact opposite of democratic safeguards like those in the U.S. Constitution, Magna Carta traditions, or modern human rights charters. Delayed correction compounds this: the state knowingly or negligently perpetuates an illegal deprivation of liberty, turning temporary error into systemic tyranny. Delayed corrections signal institutional arrogance: courts and prosecutors prioritize finality over truth, treating democratic accountability as optional.
“Errors are inevitable in any system”: True, but democracy demands rigorous safeguards and rapid correction. Tolerating prolonged errors distinguishes flawed democracy from authoritarian “we never admit mistakes.”
Wrongful convictions do not merely fail individuals — they fail the democratic promise that no one is above the law, and no one is beneath its protection. When correction is delayed for years or decades, democracy does not stumble; it actively participates in the oppression of its own citizens.
The other element that must be considered is the one that permeates this blog: the unacknowledged or unrecognised wrongful conviction, identified by the media and advocates but either wilfully or uncaringly ignored by the legal system …. Sue Neill-Fraser, Robert Xie, Derek Bromley, Marco Rusterholz, Noel Greenaway, Frank Valentine among them.
Andrew, your point about institutional inertia, where the system prioritizes finality over accuracy; is where the real breakdown occurs. However, looking closely at how intermediate courts operate reveals a problem that goes beyond standard claims of “corrupt police” or trial-level tactics.
The central structural issue lies in how state Courts of Appeal handle the “unreasonable verdict” ground of appeal under M v The Queen (1994). Under current appellate practice, state intermediate courts routinely show excessive deference to jury findings, operating under a circular logic that “the jury saw the witnesses, so they must have picked up on something.” We saw this exact dynamic play out in landmark High Court interventions like Pell v The Queen [2020] HCA 12, where the Victorian Court of Appeal majority deferred to the jury’s assessment, only for a unanimous High Court to rule that the intermediate court failed to properly engage with the fundamental requirement of proof beyond reasonable doubt on the written record.
This highlights a core systemic flaw: intermediate appeal courts frequently act as rubber-stamps for jury verdicts rather than performing the rigorous, independent evaluation of the evidence required by law. Because state appeal judges are hesitant to “substitute their view for a jury,” defendants are routinely forced to endure years or decades of wrongful imprisonment waiting for the High Court to grant special leave just to correct basic factual gaps.
If we want to fix why wrongful convictions persist, the debate shouldn’t just be about trial tactics or broad legal cynicism. It needs to focus on reforming appellate standard-of-review doctrines and establishing an independent Criminal Cases Review Commission (CCRC) with statutory power to re-examine facts without being bound by judicial deference to original trial juries. Keep at it I support your position 100%.
Your critique of appellate courts is spot on, in my observation. And I fear an Australian CCRC is as far from reality as Australia is from Europe.
Apart from the obvious problem with the “adversarial” form of law, another is the sheer amount of ghastly lawyers operating out there. They all need more and more legislation passed to give them more and more litigating opportunities. Given the parliaments are stuffed with these pecksniffs, it stands to reason that a plethora of new legislation always follows. However if less of them were processed through the dubious law schools each year, this problem would be partially resolved. The present setup is a precursor of totalitarianism of wrongful convictions. We should all take it upon ourselves to at least spit in the face of any lawyer, magistrate or judge we’re unfortunate enough to encounter in our daily lives. They can usually be recognized by being professional bores.
I would like to know why defense lawyers or someone with influence arent fighting for a ccrc for all the wrongfully convicted. It is devasting for innocent people and their families when there is nowhere to turn when this happens .
Andrew,
In many of these cases, I’m finding hard to understand why defense lawyers let many of the prosecutors assumptions go unchallenged. It is the original case which is the most important. It is much harder to appeal than putting every effort into the original court case.
Am I missing something?
Wal : One thing you might have missed – Judge and prosecutor are often on the same government AGs team . Appeals Court Old Timers often seem just rubber stampers for a scurrilous system . A judge supporting his little mate can shut down a defence and help with a jury fooling conviction or not guilty verdict as required for his promotional prospects. As in the Sue Neill-Fraser example. Manipulation of an amateur jury is obvious with the use of Manockistic flexible forensics when its we’ll know to be fraudulent. Some are quick to condem amateur juries when they are hoodwinked by professional shenanigers..(sic).