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The weaknesses of a complacent justice system

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23.11.2018

One of the good things about the Australian criminal justice systems is that it admits that witnesses, juries and even judges can make mistakes. There are courts of appeal that will review evidence, judicial statements of the law and outcomes – and that will not hesitate to intervene if it appears that a mistake has been made.

One of the weaknesses of the Australian criminal justice system is that with many of the most significant miscarriages of justice in Australia the judicial system did not – seemed that it could not – recognise a fundamental mistake and a serious injustice. It was too used to mild correctives, and minor criticisms, but not to declarations that the system had failed. That even the courts had failed.

We cannot thank the courts for the fact that a grave injustice to Lindy Chamberlain and her husband was uncovered. They lost all of their appeals until the chance discovery of some fresh evidence led to an external review and exposure of just how flawed the case had been. Even then, a player in this week’s Eastman case was on his feet arguing to the last that the conviction should not be disturbed.

David Eastman.Credit:Lukas Coch

In Western Australia, a sequence of inquiries have seemed to suggest that its judges vie with the cops for being unable to get murder matters right, at great expense to innocent people. Courts and courts of appeal repeatedly failed to find any error or problem with the convictions of men whom we now know positively to have been innocent. These were men such as Darryl Beamish, a deaf-mute from whom police claimed to have extracted a voluntary signed confession. John Button - a man with a bad stutter which was interpreted by police as nervousness about his guilt - was assaulted by police during a 22-hour interrogation after which he also 'confessed'. Scientific evidence against him was also misrepresented. Andrew Mallard was convicted of murder after a long unrecorded police interrogation and a brief recorded confession. This was a case in which police were shown to have withheld evidence that demonstrated Mallard’s innocence.

In Queensland, Kevin Condren’s conviction for murder, based on police coercion and fabrication, was upheld on appeal and he served six years before his conviction was quashed after an external inquiry. Graham Stafford, also from Queensland, served 14 years, after a conviction for murder based on flawed scientific evidence. In South Australia, Henry Keogh served 21 years for murder before it was shown that police had withheld exculpatory evidence (and later, evidence pointing to the real murderer was discovered). Edward Splatt served seven years for murder and sexual assault in the same state before a royal commission showed that the conviction was untenable, scientific evidence was unreliable, and that there had been contamination of the crime scene.

Across the ACT border in Queanbeyan, Ziggy Pohl served 10 years for the murder of his wife, despite a lack of motive and steadfast details, and was then released on licence. Seven years later, another man walked into the Queanbeyan police station and confessed to having murdered Mrs Pohl during a botched burglary.

A sketch of David Eastman's first trial.Credit:Ian Sharpe

Despite such instances of wrongful conviction, moves by politicians to enable external reviews of contested convictions, whether along a model now working successfully in Britain or otherwise, have not got far. Police have zero enthusiasm, judges not much more. Politicians have tended to want finality of cases, even at the expense of certainty.

Nor have judges, cops or lawyers thought that something was seriously wrong when modern forensic systems - such as DNA, face recognition, and surveillance technology - have regularly shown here, in Britain and the US, that many old and apparently 'safe' convictions to be doubtful.

What distinguishes most such cases, is that justice was finally done only after action outside the formal criminal justice system and then only after action inside that system had failed. Fundamental flaws in police briefs had survived the scrutiny of senior investigators, prosecutors with a formal duty to be fair, experienced trial judges and learned appellate judges. Experience has repeatedly shown judges to be reluctant to look anew at old evidence, or to regard anything they thought could have been or should have been discovered before trial as fresh evidence.

And there was a steady - if declining - tendency on the part of judges to imagine that good honest policemen could never 'verbal' a defendant, withhold evidence that might support a claim of innocence, or 'brick' or 'fit up' a suspect. Those who suggested it were putting their own good characters on the line and giving prosecutors the option of telling jurors about any previous........

© The Sydney Morning Herald