The wrong arm of the law

By Andrew L. Urban

A man convicted of murder is still in jail after 33 years, 11 years after he was eligible for parole, because he will not relent on his claim of innocence. He has always maintained that he was wrongly convicted so he is not in a position to apologise (show remorse) or state that he won’t do it again. The prison authorities take the view that he is in denial, because he has been convicted.

The key evidence against him is an eyewitness account which was given by a person suffering psychosis and hallucinations at the time, and forensic evidence that has been totally discredited. His previous appeals failed and he is now appealing again, under new legislation.

Elsewhere in Australia more recently, a woman was convicted of murder on threadbare circumstantial evidence – despite the absence of a body, a murder weapon or a motive. The prosecutor told the jury what he thought might have happened and she was found guilty. The public hunger for a conviction was satisfied. Was the hunger for justice?

A legal academic specializing in wrongful convictions who studied the case concludes that:

“The evidence given to the court by the forensic scientist was totally inadmissible. This error warrants the conviction being set aside.”

“The evidence given to the court by the forensic pathologist was totally inadmissible. This error warrants the conviction being set aside.”

“The prosecution address to the jury was in breach of the legal rules and prosecution guidelines, and was seriously prejudicial. This error warrants the conviction being set aside.”

“The judge’s summing up was in breach of the legal rules and was seriously prejudicial. This error warrants the conviction being set aside.”

Innocent people – probably dozens, 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, victims of over zealous prosecutors speculating without evidence and/or presenting deeply flawed forensic evidence in court. Yet the public is largely unaware of these and other such cases, as is much of the media, leading to an absence of scrutiny. Revelations of wrongful convictions may – and should – undermine public confidence in our system of justice, but that does not condone silence. It should urge reform.

The wrongfully convicted have little or no chance to speak out (or be listened to), even through their lawyers, who are muzzled by professional ethics, especially if an appeal is before the courts. Media may not publish details of matters before the courts under pain of severe penalties. Appeals can take years to resolve, and some cases mentioned here are not identified for that reason. Besides, these are usually complex matters, not suited to the superficiality of modern media. Simpler ‘law and order’ issues get the attention, like bail for violent criminals.

After a four year investigation into several wrongful convictions, it is clear to this writer that the criminal justice system has continued to make mistakes identified so publicly over 30 years ago (notably police investigation errors, forensic evidence failures) through the national trauma of the Lindy Chamberlain trial, her wrongful conviction and the subsequent 1986/87 Royal Commission.

Australia’s legal system is pretty much identical to Britain’s, from where it was imported. But Australia does not have a Criminal Cases Review Commission (CCRC) as does Britain, to act as a final safeguard against wrongful convictions, especially in the most serious crimes.

According to its website, “The Criminal Cases Review Commission (CCRC) is the public body with statutory responsibility for investigating alleged miscarriages of justice in England, Wales and Northern Ireland. It was established by Section 8 of the Criminal Appeal Act 1995 and started work investigating possible miscarriages of justice on 31 March 1997. The CCRC has the power to send, or refer, a case back to an appeal court if it considers that there is a real possibility the court will quash the conviction or reduce the sentence in that case.”

It is worth noting its genesis: “In the 1970s there was a series of high profile cases where the convictions were later recognised as miscarriages of justice: The Guildford Four (1974); The Birmingham Six (1975); The Maguire Seven (1976) and Judith Ward (1974). These cases featured a mixture of false confessions, police misconduct, non-disclosure and issues about the reliability of expert forensic testimony. An additional factor, which doubtless impacted on the decision-making during both the investigation and prosecution of these cases, was their high public profile and the pressure to obtain convictions and restore public confidence.”

This latter point is especially relevant; pursuing convictions is in fact one of the most powerful yet uncontrollable forces energizing prosecutions that end up being catastrophic failures of justice, by convicting the innocent.

In one case recently, police sought for two years to find the killer or killers in a violent multiple murder. Eventually, although they did not find any physical or forensic evidence to link him to the crime, they charged a neighbouring family member with the murders, citing circumstantial evidence. The man even has a pretty good alibi for the entire night of the murders.

At the bail hearing, the magistrate stated: ”It was effectively conceded by the prosecutor that there was no evidence of motive.” And the prosecutor conceded that the prosecution case ”may not be an overwhelming one”.

The case went to trial anyway; the prosecution told the jury what they thought might have happened; the man was convicted and jailed for life. The public hunger for a conviction was satisfied. Was the hunger for justice?

The CCRC was born out of the recognition of the weaknesses in the criminal justice system “as exposed by these cases (in the UK, above) which led to the establishment of a Royal Commission on Criminal Justice in 1991. The Report of the Royal Commission was published July 1993. The recommendations led to the Criminal Appeal Act of 1995 which established the Criminal Cases Review Commission.”It is important to note that unlike Britain, Australia has several jurisdictions, and no single CCRC is feasible – not that this fact should deter each jurisdiction from establishing one, given its frightening rate of success in correcting serious errors. In its 20 years since 1997, the CCRC has rejected most of the 22,000 applications it has received on various grounds, yet of the 624 cases it has referred back to courts for appeal, 418 convictions have been overturned (as at June, 2017).That means there are 418 innocents no longer in prison for crimes they did not commit. It also means the British criminal justice system made 418 catastrophic errors to put them there. It would be foolish and unreasonable to imagine that Australia’s criminal justice system was incapable of making such grave errors (see above), but worse, it would be unthinkable that once made, errors were not quickly identified and corrected. Sadly, the unthinkable can be the reality.

Take the case of Henry Keogh:

Keogh was convicted of the murder of his 29 year old fiancée Anna-Jane Cheney. They were soon to be married and on March 18, 1994, they had had a pleasant evening out, over some wine (the autopsy showed her blood alcohol level at 0.1) and potato wedges. While he went to briefly visit his mother, Anna-Jane relaxed in her bath. When he returned she was dead.

Keogh tried urgent CPR after calling the ambulance, but Anna-Jane could not be revived. He has always protested his innocence and claimed to have not received a fair trial. On December 19, 2014, the Supreme Court of South Australia (Court of Criminal Appeal) agreed.

In what was a wholly circumstantial case, the prosecution had argued that Henry Keogh murdered Anna-Jane Cheney by grabbing her by the ankle as she was lying in the bath, forcing her head under water. Forensic pathologist Dr Colin Manock gave evidence that marks on her legs were grip marks that supported the prosecution’s speculation – or drove it. Nobody seemed to question this as an implausible scenario.

By December 2014, Keogh had served almost 20 years of his life sentence, when newly introduced legislation (s353A of the Criminal Law Consolidation Act 1935, May 5, 2013) allowed him to make yet another appeal, which was heard in December 2014, resulting in his August 1995 conviction being set aside. (Keogh is believed to be seeking compensation.)

Professor Vernon-Roberts’ crucial 2004 report thoroughly discrediting the autopsy was withheld for almost 10 years – against all the rules of due process, which demand that the defence be privy to all information held by the prosecution – especially if it is exculpatory. (No-one has been held accountable.) Since his conviction, Keogh had petitioned the Governor for mercy on five occasions. The first three petitions were rejected. The fourth was withdrawn and the fifth petition awaited resolution.

Henry Keogh would not have faced trial at all without Dr Manock’s (totally incorrect) evidence. He would not have spent the best part of his life behind bars. Bad science put him there, legal error kept him there.

But that was not the end of the matter: in May 2015, some six months after Keogh was freed, having served 20 years in jail, the South Australian DPP, Adam Kimber SC announced he would again try Keogh for murder. Kimber finally abandoned the trial in November that year, saying his key witness (unnamed) was too ill to give evidence. Later it was reported that the witness would have been Dr Manock, whose evidence had been torn to shreds. Keogh was confined to silence by the approaching trial – and no doubt pretty distraught.

In yet another case (and there are plenty to choose from as examples), a 57 year old man now suffering motor neurone disease, had served 14 years of a life sentence for murder. He has obtained a report from one of the world’s leading forensic experts to say that the crucial forensic evidence given at his trial was wrong. Additionally, evidence that was known prior to his arrest – which may well have voided the case against him – was withheld from the police for 10 weeks. He wants his conviction overturned before he dies, to clear his name and set the record straight, not least for his mother’s sake. Legal aid has been refused.

The obstacles facing an innocent person wrongfully convicted are immense. As outlined in a paper by Rachel Dioso-Vila (et al) of the Innocence Project at Griffith University: “The appeal must typically be launched within one month of the conviction and relies on arguments relevant to the evidence presented at trial. New or fresh evidence of innocence is rarely available so soon after trial and a wrongfully convicted person in Australia spends an average of 4.5 years in prison before release, making this a near impossibility of exoneration within one month of conviction. If leave is granted, the High Court of Australia may offer a further appeal for a small percentage of criminal cases. However, the current interpretation of the High Court’s ambit is that it is constitutionally restricted from hearing fresh evidence, so that even if fresh and compelling new evidence of innocence became available, it would be unable to take that into account in its decision-making.”

She also makes the point that where “wrongfully convicted people are still reliant on petitioning for a pardon from the Executive, such as the Attorney General (see Henry Keogh), as the only way forward … the lack of transparency surrounding the process and decision of the Executive to refer or not to refer a case may result in the perception that petitions are dismissed without the full and impartial consideration that might otherwise be given if applications were received directly by the courts or by an independent body of review, such as the Criminal Cases Review Commission in England.”

Dioso-Vila reports that “Internationally, the CCRC is considered the most comprehensive measure employed in addressing wrongful conviction because of its independence, funding, extensive investigative powers, and powers of referral to appellate courts.

“Without mechanisms that increase post-conviction investigatory powers and allow for increased appellate access, many cases of innocence will simply be left untested and these individuals will remain incarcerated.” In so many of such cases, appeals fail, often at several attempts.

A symposium on Miscarriages of Justice at Flinders University in Adelaide in November 2014 concluded that wrongful convictions are likely to continue as a blight on society, unless significant improvements are made in the whole system, from investigation through forensic witness evidence to court procedures and the behaviour of legal practitioners. The reforms proposed include police training to adhere to proper procedures, a system of quality standards for forensic scientists and laboratories, adherence to rules of law by prosecutors and judges, with greater accountability and penalties for misconduct.

In other words, those prosecutors and judges who are found to have failed to abide by the rules of law in trials that result in wrongful convictions should be held accountable and face serious consequences – both as penalty and as deterrent. Penalties happen very rarely: eg Ken Bates prosecuting Andrew Mallard in 1995 for murder, was fined $10,000 in 2012 for failing to comply with his duty to disclose that the victim’s injuries did not match a wrench alleged to have been used in the crime. Mallard had spent 12 years in prison before being cleared of the crime. (In that context, $10,000 is a rather light penalty; 12 years in prison may have been more fitting.)

The human cost of wrongful convictions is enormous and reverberates into the future. And as Dioso-Vila points out: “Errors in evidence collection at the investigation stage affect what is presented as evidence at trial, which in turn affects the case verdict that can lead to an erroneous conviction. Once a conviction is established, given the legal constraints with the Australian appellate process, it is very difficult for the courts to overturn the decision. Additional issues arise after wrongfully convicted individuals are released from prison, since they receive little to no government assistance to help with their successful re-entry into the community.”

The Australian Law Reform Commission has done excellent work over the years, its inquiries covering a vast range of subjects, from the recent Incarceration rates of Aboriginal and Torres Strait Islander peoples, to its 1975 inquiry into alcohol, drugs and driving. None, however, on wrongful convictions in Australia.

* 1922 – 2015: Rachel Dioso-Vila at Griffith University’s Innocence Project


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