The myth of criminal justice in Australia

Marco Rusterholz is serving a 45 year jail sentence in Tasmania for a double murder, a conviction that is demonstrably unsafe. The trial judge, the jury and the appeal judges all failed in their respective duties to deliver justice. 

I make that claim without ever having met the man or having some interest in his well being, other than human good will. I base my claim on court records. Refer to our earlier post, Did “mistakes and misdirections” prompt Marco Rusterholz murder conviction?

Marco, 51 at the time, pleaded not guilty to the 2012 murders. The case against him was entirely circumstantial. As was the evidence, if we can call it that, against Sue Neill Fraser, another wrongful murder conviction the justice system managed to repeatedly fail to correct. (Judges Wood and Pearce were involved in both cases. At one stage, Pearce J, a Tasmanian judge, asked the police Sergeant in the witness box, “Sergeant, you said FSST; what’s that stand for? The Sergeant replied, “Forensic Science Services Tasmania”. A confidence draining exchange ….)

We have reported lots of details about both these cases, as well as several others (see menu on right). This post is not about the details of specific cases but an example that demonstrates the lived experience of errors that bedevil the system.  The Marco Rusterholz case provides good examples:

“What was unique about this case,” comments his lawyer at the appeal, Fabiano Cangelosi, “was that at trial the defence were not just saying that the defendant had not committed the crimes, but were presenting evidence that a person named Matthew Coventry actually had — and moreover, Coventry was called as a Crown witness.” That must be taken into consideration by the jury … and the judge ought to have addressed that issue.”

On the one hand, the three appeal court judges recognised that the circumstantial evidence against Marco Rusterholz does not prove his guilt beyond reasonable doubt. On the other hand, they found that the admissions Rusterholz was accused of making were sufficient to leave the convictions as “safe”, despite the fact that the alleged admissions were made to – and alleged in court by – persons of the lowest imaginable credibility. This is a contradiction that the judges failed to filter through either their common sense meter, or through the logic spectrum.

Here is an example of three cohorts contributing to the wrongful conviction: the prosecution intent on a conviction not the truth; the trial judge failing to properly direct the jury; the appeal judges incoherence; and a jury failing to act rationally in considering the various failures in the evidence.

Let’s take a ‘drone view’ of justice in Australia. After over a decade of observing and reporting, I regret to say that justice in Australia is a bit of a myth. Citizens cannot rely on the justice system delivering justice. It’s a lucky dip.

What are the elements that corrupt justice into injustice? Why do wrongful convictions occur and remain in place? What can be done about it?

What little research is available as to causes and contributing factors in wrongful convictions is disturbing, as reflected in research by Griffith University’s Dr Rachel Dioso-Vila:

Prosecutorial                                               17%
Incompetent defence                                 23%
Forensic error/misleading evidence       31%
Erroneous judicial instructions                32%
Police                                                              55%

Note: in some cases multiple factors were noted

§ separate forensic labs from being police adjacent; they should not feel and act as part of the police service but as an independent scientific service, and available to defence as well as the prosecution;

§ purge police officers found guilty of evidence/witness tampering;

§ purge tunnel vision culture from police investigations;

§ identify and purge from the system prosecutors found guilty of withholding evidence;

§ judicial tribunal to examine complaints referred to it by defendants (via their legal team);

§ improve jury information & instruction;

The most vulnerable of accused are those charged with sexual assault (any kind) and those in circumstantial cases. The accused is often faced with the necessity of having to prove their innocence, in complete reversal of the burden of proof being on the shoulders of the Crown. (eg Sue Neill-Fraser, Marco Rusterholz, Robert Xie, Henry Keogh, the late Cardinal Pell, Kathleen Folbigg, Noel Greenaway, Gordon Wood – and others.)

We have argued over the years (and most recently) that the one reform, a first step, that is available to the Australian justice system is a Criminal Cases Review Commission network. But, surely, our learned friends in the legal profession are capable of reforming the elements contributing to wrongful convictions. Above is a menu; they could start wherever they like. They could add other items. Surely, they could just start. As things stand Australia’s criminal justice system is filled with the catastrophic failures that result in the jailing of innocents.

As Plato, the ancient Greek philosopher, said, “the worst form of injustice is pretended justice.”