Features Australia

High courts and misdemeanours

Sometimes the truth is chased out of our legal system

11 December 2021

9:00 AM

11 December 2021

9:00 AM

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 moved 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 But the iceberg has within it other forensic labs, and many other issues that need reform, not least an outdated appeals process that is not fit for purpose.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 Ms 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 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), and failures in its major organs. Failures in police investigations are evident in 55 per cent of wrongful convictions, according to Griffith University Law School research, while forensic failures were seen in 31 per cent, and prosecutorial errors in 17 per cent of wrongful convictions studied. Judicial error was a contributing factor in 32 per cent of wrongful convictions. The appeal system is not only lumberingly, justice-denyingly slow but too prone to error. Not to mention costly.

Some examples: in the Pell appeal, two of the three Victorian appeal judges got it horribly wrong; in Sue Neill-Fraser’s latest appeal, two of the three Tasmanian judges decisions are also credibly challenged by the dissenting judge; in Derek Bromley’s case, the South Australian appeal court judges literally broke the law; in dismissing Robert Xie’s appeal against the murder of five of his wife’s family, the NSW appeal court faces a strong High Court challenge; 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, Dr Colin Manock, was at all relevant times ‘unprofessional, incompetent, untrustworthy’ according to documents lodged with the Supreme Court. Dr Manock gave ‘expert’ evidence in some four hundred criminal trials over his 26- year tenure, resulting in convictions which are now all deemed unsafe and require re-opening. This is an unprecedented volume of potential miscarriages of justice for any jurisdiction. For example, Dr Manock’s testimony in the case of the deaths of three babies in 1992 and 1993 was discredited in a 1994/95 inquest by the coroner. Yet he was allowed to keep practising. 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? Waste and misuse of vast amounts of public resources whilst inflicting private pain? Xie was subjected to four trials, including the longest in NSW 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 got 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 turn out indigestible. And the real perpetrators 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 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. 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, he is far from alone in advocating for that 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.

Got something to add? Join the discussion and comment below.

Andrew L. Urban is the author of Murder by the Prosecution (Wilkinson Publishing) and publishes wrongfulconvictionsreport.org

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