Wrongful Convictions Report

By Andrew L. Urban

In the context of the immigration debate Australia’s Prime Minister (and lawyer of renown), recently extolled the virtues of Australian democracy and its adherence to the ‘rule of law principles’, yet “the criminal appeal system in Australia has failed to comply with its obligations to apply the rule of law,” according to two legal academics, Associate Professor Bibi Sangha and Dr Robert Moles, both of Flinders University, who are calling for an inquiry into ‘abuse of process’ in the system.

“The requirement to ensure that persons accused of criminal offences receive a fair trial and that they also have the right to an effective appeal would hardly be contentious,” they say in a joint statement which claims that Australia is failing its human rights obligations “contained in the International Covenant on Civil and Political Rights which Australia ratified in 1980.”

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Andrew L. Urban

What went wrong? That’s the question that the criminal justice system does not often ask and therefore doesn’t answer when wrongful convictions are revealed.

Prevention is so much better than cure, especially in a legal system which deprives the convicted of resources and the voice to be heard. The resistance to learning from mistakes prior to trial is compounded by a resistance to correct them post conviction.

There is no self correcting mechanism in the criminal justice system, other than an imperfect, slow and combersome appellate process; there is no equivalent to consumer protection that is obligatory elsewhere. Keith A Findlay, co-founder of the Wisconsin Innocence Project argues this very clearly in ‘Learning from our Mistakes’:

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By Andrew L. Urban

She is wheeled into the clinical surrounds of the Supreme Court in Hobart in a wheelchair and positioned in front of the empty jury benches, facing the witness box. Sue Neill-Fraser’s demeanour is low key, her little smile vague. It’s October 2017 and she’s been in prison since her arrest more than eight years earlier, in August 2009, when she was a healthy 55 year old. Two prison officers escort her.

The public gallery is full of her supporters and the media. In front of them are the two costly barristers and their two expensive associates, the two instructing solicitors – and scattered around the court, the wage-earning court staff. Sitting in his elevated isolation is Judge Michael Brett, presiding over Neill-Fraser’s appeal. Well, not her actual appeal, her request for leave to appeal.

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By Andrew L. Urban

The WA police defamed an innocent man by publicly naming him soon after starting their investigation as the only suspect in his wife’s murder. He was eventually (three years later) charged, tried and acquitted. Twice. He has now sued the State – and won. The killer is still at large. That’s what comes from pursuing a conviction instead of searching for the truth.

It is rare that a defamation case shines so strongly and tellingly on the infamous police investigation failures generated by what is known as ‘tunnel vision’. The clarity of the examination of tunnel vision in this case is the valuable by-product of the successful defamation action brought by Lloyd Rayney against the WA Government, which concluded in December 2017 with damages of over $2.6 million awarded to Rayney, who had been arrested for the murder of his wife, Corryn.

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Innocent people – at least 71 known*, the total unknowable – have been held or are stuck in Australian jails on lengthy sentences for murders or rapes they did not commit. This comes as no surprise to those who, like multi award winning journalist and legal historian Evan Whitton, consider the adversarial system Australia has imported from Britain a disaster for justice, nothing more than a permit for lawyers to operate as a cartel, in which truth is not the ultimate objective. Winning is.

Here, in a selection of extracts from Whitton’s infinitely researched and damning work, Our Corrupt Legal System (Book Pal, 2009), is the evidence – often in their own words: lawyers are trained liars.

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