Andrew L. Urban.
The question of the title is posed without optimism. The legal system has no proud history of reform. All three past Attorneys-General have ignored or rebuffed calls for a Criminal Cases Review Commission network in Australia. Kathleen Folbigg’s 20 wrongful years in prison is just one of many compelling reasons for the legal system to “heal thyself”. We are not the only ones calling for reform, as we report here.
Anna-Maria Arabia, Chief Executive of the Australian Academy of Science, has told wrongfulconvictionsreport.org that “Ms Folbigg’s case demonstrates the need for law reform in the following three areas:
- the adoption of a reliability standard to determine admissibility of evidence.
- mechanisms for the selection of experts by independent and reliable sources, particularly where complex scientific material is required to inform decision making.
- the establishment of post appeals review mechanisms, such as a Criminal CasesReview Commission.
“The Academy will be writing to and engaging with Federal and State Attorneys-General in early 2024 to outline its proposal for law reform in the areas outlined above.”
The Academy also issued a statement:
STATEMENT BY THE AUSTRALIAN ACADEMY OF SCIENCE
While justice has finally been served for Ms Folbigg, wrongful convictions will continue to occur without major reforms to justice systems across Australia.
New genetic evidence available in 2019 played a significant role in bringing about the second Inquiry into Kathleen Folbigg’s convictions and subsequent pardon in 2023; however, basic scientific principles were not upheld from the time of her trial.
For example:
- Kathleen Folbigg was convicted for murdering her children by suffocation, yet there was no pathology-based evidence of suffocation of the children
- medical and pathological evidence was available to indicate natural causes of death of the Folbigg children
- the case against Kathleen Folbigg was premised on an incorrect logic that four children could not die in a family from natural causes unless it was one unifying cause of death
- circumstantial evidence (including non-scientific opinions about Ms Folbigg’s diaries) was given more weight than medical and pathological evidence available at the time of trial
- at the first Inquiry, erroneous interpretation of data held in the International Calmodulinopathy Registry was presented and accepted
- no journalling, trauma or grief experts were given the opportunity to provide expert evidence in a formal legal process until the 2022 Inquiry.
Australia must be open to learning from the gross miscarriage of justice in Ms Folbigg’s case. The Academy’s role in Ms Folbigg’s case has always been to ensure that science is being heard in the criminal legal system.
Our role in this case has reinforced our view that in every Australian state and territory, a more science-sensitive legal system is required.
As a matter of urgency, Australian jurisdictions must adopt a reliability standard to determine the admissibility of evidence.
Until Evidence Acts across the country are amended to introduce a reliability standard, there is a significant risk that unreliable evidence will be admitted into courts. Australia remains well behind other nations in its absence of a legal reliability standard.
When the Academy petitioned the Governor of NSW to pardon Kathleen Folbigg based on additional scientific evidence uncovered by its Fellow, Professor Carola Vinuesa FAA FRS, it took nearly three years for Ms Folbigg to be pardoned.
This unacceptable time delay is because Australia lacks effective post-conviction review mechanisms. In countries such as the United Kingdom, Norway, New Zealand and, most recently, Canada, criminal cases review commissions have been established.
These commissions are independent, dedicated bodies that investigate miscarriages of justice. It is time Australia introduced an independent, transparent and accountable review mechanism. This is particularly important in an age of rapid scientific and technological discoveries.
The Australian Academy of Science acted as an independent scientific adviser to the second Folbigg Inquiry – a unique and rare interaction between a learned academy and a legal system. It assisted by independently recommending experts to assist the Inquiry. This meant that the Inquiry could hear from the best available experts from the relevant scientific disciplines wherever they resided in the world.
A mechanism to enable the courts to routinely hear from independently identified experts who are available to all parties for cross-examination must be found.
The Academy looks forward to working with the Attorneys General across Australia to develop and implement more science-sensitive legal systems.
*
Wrong assumptions about four infant deaths
The question in the title is underscored by John Menadue’s Public Policy Journal, Pearls & Irritations. (Among other senior positions, Menadue has worked for various Prime Ministers in a distinguished career as a senior public servant and in private enterprise.) In the December 21, 2023 edition of Pearls & Irritations, he publishes an article by Kerry Breen and esteemed forensic scientist Dr Stephen Cordner, a comprehensive analysis of the Folbigg case and its many failings, concluding with:
“The wrongful conviction of Kathleen Folbigg represents a serious failure of Australia’s criminal justice system. It demands a thorough inquiry as to why the jury was led to this wrong decision. Such an inquiry must also address how such decisions can be prevented and how wrongfully convicted people can more readily have their claims dealt with. Many similar legal systems have addressed this by creating criminal case review commissions (CCRCs). How much longer do we have to wait for a CCRC in Australia?”
Crucially, the article notes the central, fatal error in the whole saga, echoing our own observation made in earlier articles. It’s about the fallacy that “since one sudden unexplained death in infancy is very uncommon, a second in the same family is exceedingly uncommon and a third is so extremely rare that murder becomes the obvious explanation. No one thought to ask the parallel question: how common are three (or in Ms Folbigg’s case, four) murders in one family where there are no observable injuries? We suggest at least as extremely rare as three or four unexplained deaths. This being so, the alleged criminal significance of the rarity of multiple natural infant deaths in one family is neutralised.”
A shocking and blatant example of injustice written into statute – In the Victorian Evidence Act s164 – Judge must not tell the jury it is dangerous to act on uncorroborated evidence. Then, the next subsection states the judge MUST tell the jury it is dangerous to act on uncorroborated evidence in a charge of perjury! And perjury alone. Clearly this is aimed at making perjury from a lying complainant harder to prove than the original charge! And we wonder why there is false imprisonment.
The Vic parliament brought s 164 subsections into the Act in 2014. At the bottom of the page which includes s 164 is a statement that the NSW and Federal Evidence Act do not have this provision! Clearly NSW and Feds baulked at adding such an unjust statute.
This entrenched injustice is further reinforced by Vic parliament with the Jury Directions Act VIC which expressly forbids a judge from giving a Longman Warning to the jury.
This s164 provision is at direct odds with the ‘Longman Warning’ to juries, from a High Court case Longman v The Queen HCA 1989 in which Justices Brennan, Dawson and Toohey, said – on the danger of not warning a jury concerning convicting on uncorroborated evidence, ‘ … to leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice… ‘
Pell may well have been acquitted at his initial County Court trial if the jury had been given a Longman Warning by judge hearing the case against Pell.
Politicians are part of the problem and probably the main cause of the problem. With these subsections of s164 being passed in the Bill and the Governor signing into an Act, politicians clearly do not care if a person is falsely convicted.
A retired lawyer I know told me once, that he thinks the funding for the courts including wages for judicial officers should come from the Governor’s Office so that parliament has no part in funding and hence judges can be better armed to resist any attempts to influence them.
I have seen first hand the corruption of the legal system. It is no longer a justice system, if it ever was. Chester Porter QC (Sydney) wrote in one of his books of a NSW man convicted of murder over seventy years ago, hanged, then a few years later, it was found that he was innocent. So false convictions are nothing new.
Cardinal Pell had to get out of Victoria to get justice. It still appalls me that the two most senior Victorian judges, Ann Ferguson and Chris Maxwell got his appeal so wrong. Justice Weinberg went against them but he was the minority. The evidence simply was not there to support a conviction. Took the High Court to get it sorted in a joint judgment with all seven justices agreeing to uphold his appeal and not order a retrial.
I have no hope for a positive reformation of the justice system. the corruption is too entrenched. I am not necessarily talking of bribery, I am talking of judges who knowingly fail to carry out their duty to ensure the trial is fair for undisclosed reasons.
As Justice Kevin Bell stated in Tomasevic v Travaglini 2007 SCV, at para 139 – ‘Every judge in every trial both civil and criminal, has an overriding duty to ensure a fair trial, a fair trial being the only trial a judge can judicially conduct’.
But not even Justice Bell was immune from failing to carry out his duty. In 2018 he refused to hear an application for habeas corpus even though his Associate personally passed on the application to him. This in spite of what he said in the habeas corpus case of Antunovic v Dawson, that a judge can be given an application for habeas corpus anywhere he happens to be and has a duty to hear the application and hear and decide it as his highest priority.
I have seen Justices Priest and Kaye fail in their duty to ensure a fair hearing in the Victorian Court of Appeal. Blatantly denying the appellant his right to be fully and fairly heard. And making up the law according to their own misconceptions.
That is the absolute fact and truth of the matter.
OUT WITH THE OLD CORRUPT & PERVERSIBLE English Adversarial System and in with the intelligent French Justice system
http://www.netk.net.au/Whitton/OCLS.pdf
We have also published a post on Whitton’s book, Our Corrupt Legal System, at
https://wrongfulconvictionsreport.org/2020/01/19/blueprint-for-a-fairer-system/
I am so thrilled for Kathleen and all the supporters who have endured!!
Also included in the review process should be complex criminal jury trials.
Juries should not be the tribunal of truth. Juries should be unable to gazump the experts such as scientists, doctors, specialists and even the judge who may refer to other cases and request that the defence and prosecution read those cases. Juries are understandably completely out of their depth to provide the necessary level of knowledge and expertise to assist in the undertaking of this task.
https://www.lawhandbook.sa.gov.au/ch13s04s08s01.php
“The jury listen to the evidence and decide who or what to believe. They decide what the facts of the case are. They are the only ones who can decide whether the accused is guilty or not guilty”.
It is time to move on and reduce the waste of time for the public to be put through the system for jury duty.
Then the “show” of choosing jury members. Lawyers behaving like they are oracles who sees all for what “they” want…nod, nod, wink, wink… not the truth.
And in this day and age where particularly those under 50 rely on their device for everything, you can presume if not all of the jury, most will do their own “sleuthing” about the “players” and speak to others about the matter whilst engaged.
We are wasting time and money on this false notion of the community being part of the justice system to ensure its integrity.
Has anyone given consideration to how jurors feel when cases they have sat on are overturned? Seriously they can’t be thinking they got it right, if so then Houston we have a problem! And on the inverse if they are feeling guilt-ridden they may need help to unpack it. Does the system ever reach out to them and follow up? If not, I hope any jurors who read this and have been on the unfortunate side of history where their case has been overturned reach out. Speak out. It was not your fault that you were forced into a role (as to be excused is quite difficult) and misled that you are the tribunal of truth. That you know more than all the experts and understand all the information and nuances of those specialised fields.
I might even say that it is a shameful, even perverted and coercive (as you are basically forced to be a juror) abuse of citizens.