If our criminal justice system were an airline it would be grounded

Andrew L. Urban

The latest forensic disaster, in which one of Australia’s most respected forensic scientists, Kirsty Wright, laid out the serious errors and problems in the ­Queensland government-run laboratory’s handling of forensic evidence in the murder of Shandee Blackburn, is, as they say, the tip of the iceberg. And it was only the pressure of public opinion, fuelled by relentless media reporting, that finally got the Queensland government to call for an inquiry involving international experts, into the lab’s handling of cases dating back almost two decades. But the iceberg has within it other forensic labs, and many other issues that need reform, not least an outdated appeals process that is not fit for purpose. 

Young Blackburn was stabbed to death walking home from work in Mackay. Mr O’Connell, the Mackay-based coroner, last year delivered findings that the 23-year-old was killed by her former boyfriend, John Peros, but he did not find the fresh and compelling evidence required to charge Mr Peros with murder under the state’s double jeopardy laws. A jury had acquitted Mr Peros of the murder in 2017. He denies any involvement.

The Australian’s Hedley Thomas has reported on the case and produced a podcast, which helped focus public attention on it. How wonderful. But also how damning. The criminal justice system is self-policing, and is shielded from outside scrutiny by the separation of powers. It suffers chronic constipation (unable to process cases in a timely fashion), failures in its major organs such as tunnel vision in many police investigations (55% percent of wrongful convictions are caused or partly caused by police failures); forensic failures (31%) and labs too closely allied to police; prosecutorial errors (17%); and judicial errors (32%), not to mention an appeal system that is not only lumberingly, justice-denyingly slow but too prone to error. Not to mention costly.

Some examples: in the Pell appeal, 2 of the 3 Victorian appeal judges got it horribly wrong; in Sue Neill-Fraser’s latest appeal, 2 of the 3 Tasmanian judges decisions are also seriously challenged by the dissenting judge; in Derek Bromley’s case, the appeal court judges literally broke the law; in dismissing Robert Xie’s appeal against the murder of five of his wife’s family, the court faces a strong High Court challenge on the most basic issue of the Crown’s case, namely time of death being unknown; in a case of historic sexual abuse, the appeal judge said: “… the evidence of the Complainant … was not so persuasive as to dispel the significant doubts raised by a number of seeming implausibilities and inconsistencies…” yet went on to refuse the appeal; and there are others.

South Australia is still under the cloud of the country’s greatest forensic disaster. The Chief Forensic Pathologist in South Australia, Dr Colin Manock, was at all relevant times “unprofessional, incompetent, untrustworthy” according to documents lodged with the Supreme Court of South Australia. Dr Manock gave ‘expert’ evidence in some 400 criminal trials over his 26 year tenure, resulting in convictions which are now all deemed unsafe and require to be re-opened. This is an unprecedented volume of potential miscarriages of justice for any jurisdiction let alone a relatively sparsely populated state such as South Australia. For example, Dr Manock’s testimony in the case of the deaths of three babies in 1992 and 1993 was thoroughly discredited in the 1994/95 inquest by the Coroner. Yet he was allowed to keep practicing. Right up until he retired.

It seems we have a criminal justice system that’s like an airline whose planes are all almost broken down – yet still in operation. Grave public safety risk or what?  The waste and misuse of vast amounts of public resources, inflicting private pain … Xie was subjected to four trials, including the longest for a single defendant, at great cost to the State – and financial disaster for him. Neither he nor Neill-Fraser, nor Pell (for starters) should have been taken to court if evidence (or lack of) had anything to do with it. But there is scant quality control at the front end of making this sausage, where police and some prosecutors deem it in the public interest to ‘try’ a case against an accused. Hence the sausage can come out ugly, bent and revolting. And the real perpetrators are the winners.

Winston Churchill once observed: “Truth is incontrovertible. Panic may resent it, ignorance may deride it, malice may distort it, but there it is.” And sometimes in our criminal justice system, the truth is chased or kept out. That’s when dedicated journalists and other truth-tellers have to step in. They have to put the case before the public, pressuring a resistant political class (see Queensland, above, for latest example) and a self-protective legal class. We hasten to add, not all police officers and detectives or criminal lawyers, nor all judges, deserve blame: but a few is too many.

If we can’t rely on the accused getting a fair trial, and we can’t rely on the appeal system to efficiently correct wrongful convictions, what we have is a criminal injustice system.

Addressing this profound shortcoming, former High Court judge Michael Kirby has written (for a paper in a forthcoming book) : “There is a need in Australia for greater concern and vigilance about the risk of miscarriages of justice. As Chamberlain, Mallard, Pell and other highly publicised cases show, courts of criminal appeal can sometimes rise to the challenge and afford much needed redress. The CCA institution then works as it should. But sometimes they fail. The statistics in the performance of the differently organised, non-judicial institutions of the CCRCs in the United Kingdom suggest that there is a gap in Australian criminal law and practice and in our institutional arrangements that is not being met. Seemingly, addressing this institutional defect is not even presently on the horizon. This says something about the tolerance in Australia of a proportion of people who may possibly be innocent of the crimes of which they have been convicted but who cannot secure relief. There is thus an apparent disharmony between the very high standard expressed by the High Court of Australia in Pell v The Queen and the somewhat lower standard tolerated by politicians, legislatures and citizens concerning the enactment of institutions that will uphold the higher standards. It is imperative that this disparity should be remedied without delay.”

The remedy to which he refers is the mechanism of a Criminal Cases Review Commission (CCRC)*, which we (along with others) have advocated over the years – to no avail. This justice imperative has been suffocated by political inertia. And here’s the irony: given the separation of powers, the one thing politics can do to improve the fair administration of justice … it will not do.

• The effective and relatively inexpensive establishment of a CCRC network around Australian jurisdictions has been drafted by Dr Bob Moles of Flinders University and submitted most recently to Attorney-General Michaela Cash on June 10, 2021.