Symposium on Miscarriages of Justice, Flinders University, Adelaide, South Australia, Nov. 7 & 8, 2014. Andrew L. Urban reports.
Pursuing convictions at the expense of catching the actual culprits of serious crimes, grave errors at trial by prosecutors and judges alike, shocking failures of forensic evidence and a failure to learn from historic cases (such as the wrongful Lindy Chamberlain conviction 30 years ago) are some of the issues that brought together Australia’s pre-eminent lawyers and legal academics in the field (and international guest Prof. Kent Roach from the University of Toronto), wanting to improve Australia’s inadequate criminal appeals system and reduce the number of innocents sent to jail for lengthy – unjust – sentences.
“If the Australian public was aware that dozens of innocent people are serving lengthy sentences for murders and rapes they didn’t commit – and the real criminals are living free among us – we could expect considerable outrage and demands that ‘something be done’,” suggests Dr Robert Moles, co-author of Forensic Investigations and Miscarriages of Justice (Irwin Law, 2010), the definitive book on Miscarriages of Justice. That ‘something’ is a range of reforms from simple to complex (see below) that the symposium (which he instigated) explored in detail.
Keynote speaker Professor Kent Roach, in comparing the Canadian and Australian experience, said that “there was a greater acceptance of wrongful convictions being a reality in Canada and while Australia is starting to engage in reform, it is facing continued legal and political struggles.”
He also cited the Canadian example of “a certain judicial creativity that created a precedent for bail pending a petition for mercy,” the last resort in both countries at present for those who have exhausted the standard appeals process.
According to Civil Liberties Australia, at any one time “there are probably 1000 prime agitators – lawyers, academics and students, journalists and editors, film makers, playwrights, composers, artists, family members and friends, scientists, civil rights activists. They are fighting 50 or more current travesties of justice in Australia, where an innocent person is in jail, or about to be, who shouldn’t be.”
It is Flinders University itself that can claim some kudos for supporting the only significant reform in criminal appeals procedures in Australia, thanks to the work of senior lecturer Bibi Sangha and her colleague Dr Moles, a former associate professor of law at the University of Adelaide and latterly a dedicated scholar-warrior against miscarriages of justice in Australia. Between them they persuaded the South Australian Government to introduce a new statutory right of appeal, which (in somewhat imperfect form*) was introduced in 2013 and the appeal hearings in the first case using the new legislation, the 20 year old Henry Keogh case, had just concluded prior to the symposium; judgement has been deferred to a later date (rather disappointingly).
* Sangha said “the main problem with the new SA appeal rule is the need for fresh and compelling evidence. This is an added condition, a higher bar, than the grounds needed for a first appeal and excludes other grounds that could form the basis of a miscarriage of justice.”
Speaking from frustrating personal experience, Joseph Crowley, barrister and Senior Teaching Fellow at Bond University said barriers to appeals were like “a hydra’s head … as you chop one off another grows in its place.” He was referring to the preliminary conditions for an appeal before a court will assess the merits of the appeal. “There can be a miscarriage of justice either in the outcome, or in the unfairness of the process.”
The Keogh case contains within its entrails many of the elements that are systemic to the flaws in too many criminal trials, most notably shockingly false forensic evidence from WA’s former (1968 – 95) Senior Forensic Pathologist Dr Colin Manock, an ‘expert’ witness who was never qualified to perform this work, yet was instrumental in 400 convictions over the years. If that is hard to believe, it is only one of many factors that strain against credulity in this area of the law.
Dr Moles presented a summary of the shocking history of Dr Manock and his unchecked status as a reliable forensic witness in South Australian criminal trials.
Australia is not alone: forensic errors were evident in 63% of exoneration cases in the US between 1997 and 2011, according to figures from the Innocence Project (US) quoted by Professor Stephen Cordner of the Victorian Institute of Forensic Medicine. “There is no system to action any criticism of forensic experts by judges,” he added. The Innocence Project which had revealed a “staggering” number of wrongful convictions and uses DNA evidence to exonerate prisoners -and sometimes that leads to the conviction of the real offenders – has had “significant impact on the US Congress.”
Cordner said “I take my hat off to the UK for having a Criminal Cases Review Commission, the only such Government funded body other than in Norway.” He said the CCRC’s record of referring cases back to appeal after all other appeals had failed, resulted in some 350 convictions being overturned in the past 15 years. “On a pro rata basis, we in Australia would have had about 180 cases overturned; we actually had between 5 and 10.” (The CCRC rejects about 96% of applications, filtering out unwarranted cases.)
Dr Moles added that in some 60 years, Australia’s system had overturned around 50 cases of wrongful convictions of serious crimes. Dr. Rachel Dioso-Villa from the School of Criminology at Griffith University confirmed that her research found 57 cases, and the average time served in prison by those eventually exonerated was 4.5 years.
It is at Griffith University where Australia’s first Innocence Project was launched some 14 years ago, and it has since handled around 300 cases. It is now part of a global network of university based Innocence Projects, which respond to applications from prisoners whose appeals processes have been exhausted but are determined to prove their innocence. In many cases that means refusing to admit to their crimes and therefore remain in jail longer than their parole would require, since parole is thus refused, on the grounds of ‘no confession, no remorse’. (The women burnt as witches in the 16th and 17th centuries would sympathise with their plight.)
Lynne Weathered, Director of the Innocence Project at Griffith since its inception, said that in the US, using DNA evidence, the IP had recorded 321 exonerations based on DNA evidence since its inception in 1992; in total there have been 1,416 exonerations. “These numbers have alerted people to wrongful convictions. When we started in Australia, there was no right to access evidence, no right to DNA innocence testing, no preservation of evidence requirement, no right to information … in one case it took 8 years to be told by the Attorney General that the evidence we sought didn’t exist, while the convicted person remained in prison refusing to admit guilt.”
Although the Griffith based IP accepts applications from all over Australia (now averaging about 30 a year), the majority come from Queensland. It also refers interstate cases to similar organisations in other states, where they exist, eg Western Australia. (There are plans to establish one in Victoria.)
Speaking of “the hubris and isolation of lawyers and judges”, Professor Gary Edmond, Professor of Law at the University of NSW (and Australian Research Council Future Fellow) was scathing of their failures in the pursuit of rational practices in criminal trials. He said that safeguards and standards parameters just don’t exist in the matter of forensic evidence presentation. “The trial process is unsuccessful in facilitating evidence delivery and represents a failure to engage in science in a productive way. Juries,” he said, “must be able to understand the expert evidence and the prosecutor should present it fairly and conducive to that understanding. It’s not for the State to bring expert evidence without explaining it; in the absence of understanding the information properly, the evidence is not susceptible to rational evaluation.”
Referring to Tom Percy QC’s presentation about his moving and dramatic experiences in the case of Brenda Hodge (in 1984 the last person to be sentenced to death in Australia, later commuted, paroled in 2003) that convinced him to change his mind – to oppose capital punishment – Dr Moles reminded the symposium that “this is about people.”
Indeed, some of ‘the people’ were in attendance, too; exonerated of the murder for which he was convicted in 2008 (quashed on appeal in 2012), Gordon Wood (not an official speaker) explained to this writer what he felt were the three most important areas of reform required: police misconduct, prosecution misconduct and error-prone forensic evidence. “In all three areas there are genuine errors, but often there is actual misconduct. How does the system continue to allow these failures to keep occurring? There are no safeguards: we wouldn’t get on a jumbo jet without the confidence of knowing it is constantly checked for fault … without full confidence in its safety systems.”
Also present were personal representatives of Simon Gittany, who is appealing against his 18 year sentence for the 2011 murder of his then girlfriend, Lisa Harnum, and David Szach, whose extraordinary story of a profound denial of justice has yet to come to a satisfactory conclusion – if it ever will. [More on David Szach]
Wood feels the ‘tunnel vision’ culture of crime investigation needs to change, “and that’s the hardest thing to change.” A greater degree of rectitude and rigour and integrity are needed in police investigations, he said.
These problems are compounded by the close links between police and the forensic scientists, the latter operating under the police umbrella. With the great majority of forensic experts called by the prosecution, not the defence, they are often seen by juries as accepted experts by the courts, said Professor Edmond, leaving the onus on defence counsel to disprove or challenge such evidence. He questioned how juries and judges could be expected to draw rational conclusions when there are scant criteria against which to evaluate most forensic evidence.
(On this point, Professor Roach commented that the phrase ‘consistent with’ has been outlawed in Canadian courts; it can too often be misleading.)
A perfect example of the combination of flawed forensic evidence and judicial failure to recognize or correct it was given by Barbara Etter APM, relating the case of Sue Neill-Fraser, serving a 23 year sentence for the murder of her partner Bob Chappell. During the trial, the prosecutor presented a slide showing the blue staining from luminol testing as if it were proof of the presence of blood – confirmatory tests of which had proved negative to blood. (This was one of several aspects of the trial to have come under severe criticism in the past two years, including a detailed deconstruction by Dr Moles.)
“Wrongful convictions are hidden,” said Associate Professor David Hamer of Sydney University Law School. “There are institutional barriers to correct them and defendants generally lack the resources to overcome those barriers. The recent (May 2014) Eastman inquiry (that resulted in David Eastman’s 1995 conviction for the 1989 murder of Asst. Police Commissioner Colin Winchester being overturned) cost the ACT $10 million (and legal aid for Eastman is estimated at a further $3 million); “that’s the annual budget of UK’s CCRC,” said Hamer. “But there is political resistance to such a body, reflecting that the law-and-order lobby has power to sway politicians … as well as there being some genuine policy and cost issues. There is also the idea of finality in criminal justice – but that’s in conflict with the systemic response to fairly regular wrongful convictions.”
Bill Rowlings, Secretary of Civil Liberties Australia, and CLA Chair Dr Kristine Klugman called for a strategic action plan to address the reforms that the symposium highlighted. “We need a definition of what we mean by a miscarriage of justice and then what can be measured. From that we can deduce what we can teach the various actors and also extrapolate from historic cases.”
For Eve Ash, psychologist and filmmaker, “this is all too slow! The system is bureaucratic and it’s horrifying how long innocent people spend in jail; the drive is to convict, not to solve the crime, to blame and to punish [someone] … it’s a pack mentality fuelled by gossip and lazy or malicious media. As a business psychologist, I see it also in corporate culture…”
“Tunnel vision,” she added, “leads to cascading errors: we must respond with cascading reforms.”
Ash, who made the awarded documentary, Shadow of Doubt (2013), exposing the flawed police investigation and its aftermath in the case of Sue Neill-Fraser, is producing Justice Hunters, a series of short documentaries on the subject of miscarriages of justice, which will include coverage of the symposium. “Each case of miscarriage needs a full campaign, strong on communication, sticking to the facts, working in unison with each supporting player. My aim would be to educate, expose and engage…”
Ash also suggested random audits of cases by law schools, and justice investigation teams made up perhaps of three senior lawyers, to fast track resolutions of miscarriages of justice.
The second symposium on miscarriages of justice is scheduled for November 2015.
REFORMS & CHANGES NEEDED
A sample of the potential reforms as highlighted at the symposium:
training to avoid ‘tunnel vision’ approach
training to adhere strictly to investigation procedures, notably accurate record keeping, witness statements, evidence collection
management culture to emphasise serving the court not the prosecution
Forensic scientists, laboratories, professional bodies:
develop a system of quality standards, with documented policies and procedures
training to explain evidence in court so that it is understood
requirements for validation of evidence
training to avoid contextual bias
emphasis on serving the court not the police or prosecution
Adherence to rules of law (e.g. not presenting speculation as fact)
Explain forensic evidence rationally
Presentation of evidence fairly
seeking conviction must be subservient to seeking of truth
accountability: penalties to apply for misconduct
Demand clarity and understanding by jury of scientific & forensic evidence
Ensure prosecutors adhere to rules of trial behaviour and fairness
Accountability: penalties to apply for misconduct