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A state of Injustice - Dr Robert N Moles
Chapter Sixteen - We can’t face the future if we can’t face the truth

A state of Injustice: table of contents

Also by Dr Moles - Losing Their Grip - The Case of Henry Keogh - Definition and Rule in Legal Theory

We now come to examine our second question: how to prevent the type of miscarriages of justice discussed in this book, from occurring in the future. To do this, there needs to be a review of past cases and an analysis of what was done, what went wrong and why it happened that way. If those factors can be understood, then, provided there is the will, we can all change and improve our situation.

Review the failures to implement current procedures

Any review should be focussed on the real issues of reform. It might be tempting to imagine that some new procedural code to fix the problems could just be implemented. The danger, though, is that this code too could be ignored. Therefore, it must first be determined why the procedures that are already in place have not been fully implemented. There must be a way to ensure that the current safeguards and procedures are adhered to before extending their range.

In order to do that, the current institutional safeguards will have to be scrutinised, and an attempt made to determine why and how they have failed to work. This will require an examination of the role of prosecution and defence lawyers, of judges at both the trial and appellate levels, and the coroner’s office. It was their job to ensure that the current procedures were properly adhered to. The awkward questions will have to be asked – and answered.

In the cases which we have looked at, a number of coronial and judicial hearings have accepted evidence that is deficient. In the Perry case, for example, why did the South Australian judges not reveal the problems with the evidence when the case was first taken to the Court of Criminal Appeal in South Australia? As one of the High Court judges said, parts of the scientific evidence revealed an appalling departure from proper standards. It should not have been left to the High Court of Australia to expose the true state of affairs. How can that be properly explained? And why was insufficient action taken about it even after the comments by some of the High Court judges?

Questions now need to be asked about why the situation of the Baby Deaths cases was allowed to develop and how was it that the criticisms of Dr Manock revealed in the inquest were not brought to the attention of the jury in the Keogh trial? Why was Dr Manock allowed to conduct the autopsy in the Keogh case, and why was disposal of the body permitted without his work being properly checked?

In tackling some of these problems it could well be useful to look at the way court proceedings are conducted in South Australia. Perhaps changes in the way expert witnesses are handled and scientific evidence is processed, or the way in which the court and the jury interact, could be beneficial.

The dangers of assumptions

We have referred to the danger of making assumptions, and examples of errors caused by assumptions are provided in some of the cases we have discussed. For example, as Robertson points out in his discussion of the  Splatt Commission:

“Shannon found that many things had gone wrong in the case. Some of these included:
tunnel vision on the part of the police, the investigation quickly focussed on Splatt, and other possible scenarios were not taken seriously;” [1]]

Another example was the Highfold case where the investigating police officer did not even look at the body. He and the other officers seem to have assumed that the cause of death was ‘not suspicious’ and did not seriously examine alternative explanations.  They merely set out to substantiate the explanation which appeared to be the most obvious. In the Akritidis case, there was no questioning of what had happened. Everyone seemed to assume from the time of finding the body that Akritidis had committed suicide. Indeed, the Deputy Coroner even commented in his Finding about the ‘assumptions’ which had been made at the autopsy. But it is the pathologists who should be alert to the perils of assumptions and should be working to provide objective scientific evidence. Yet in the Keogh case, Dr Manock assumed that Anna Cheney was murdered (‘I was at no time looking or thinking that the death was accidental’) and did not explore other possibilities such as an anaphylactic reaction.

The Office of the Director of Public Prosecutions

In South Australia the role of the Director of Public Prosecutions has come under increasing scrutiny, largely as a result of the plea-bargaining cases that we discussed in Chapter 14, and which caused a public outcry in the media. These cases brought condemnation from the Premier of South Australia. Editorials in the Advertiser, were strident in their criticism. One noted:

“People are rightly concerned. The legal fraternity can send up smoke screens fuelled by academic arguments but the inescapable, bedrock conclusion is that, in the Nemer case, the legal system has failed.” [2]

Another said, ‘It also prompts questions about confidence in the office of the DPP and Mr Rofe himself’. [3]]Another claimed that ‘the Nemer case, without any shadow of a doubt, has eroded the public’s confidence in the justice system to such an extent that Mr Rofe’s position is untenable’. [4]]

In addition to the plea bargaining issues, there has also been concern that in 2001 and 2002, the South Australia DPP’s office had the highest number of dropped prosecutions in the country with 23.4 per cent, almost double the national average. These are cases in which people have been charged but then the DPP has decided not to proceed with a prosecution because in his view there was ‘no reasonable prospect of conviction’. Mr Borick QC, has queried if this was because there was something wrong with the investigations, or something wrong with the evaluations of those investigations, that led to the charges being laid in the first place. [5]

When assessing the suitability of evidence for prosecutions, a number of issues need to be considered. Did the police secure the scene and ensure that the evidence was not contaminated or destroyed? Have they provided the best possible evidence of what occurred (the ‘best evidence’ rule)? Are there other possible explanations? To assess the adequacy of any police investigation, it is essential to refer to the police forensic procedures manual. However, in a televised interview relating to the Keogh case, Mr Rofe revealed that he did not know of the existence of such a manual. [6] If he (as the DPP) did not know about the procedures, about what ought to be done, then the system of checks and balances cannot be expected to work properly:

Rohan Wenn: The next and more critical breakdown in procedures occurred with the autopsy. Dr Manock was the only pathologist to examine the body. It’s a breach that is further amplified by this amazing admission from our DPP when questioned by Today Tonight.

Was it unfortunate that Manock was the only one to see the body?

Mr Rofe: No, as I said that was the established procedure at the time, in my experience.

Rohan Wenn: But it goes against the Police Forensic Guidelines?

Mr Rofe: Well I haven't seen those, and I'm not aware of them.

Rohan Wenn: Well, here they are. Paul Rofe later called us to say that no one has heard of the Police Forensic Guidelines. But when we offered to send him our copy, he declined. [7]

Anything new

In the televised interview, Mr Rofe said he would look at anything new with regard to the adequacy of a conviction. He admitted during the interview that there were many things that the interviewer was putting to him about the Keogh case which were new to him. He acknowledged that he had been unaware of them, or that they had not been brought to his attention before. However, on being asked about them, he was able to determine immediately that they were ‘not of concern’ to him and did not require any further examination or consideration. He said that this was because there could be ‘innocent explanations’ for such things. Just as there could be innocent explanations for other things in the case.

It is, of course, correct to say that an injection mark or bee sting could provide an innocent explanation for the cause of death of Anna Cheney. However, if that were so, it would mean that Keogh should not have been charged, let alone convicted.

However, by saying that there could be innocent explanations, Mr Rofe indicated that the correct explanation is still in doubt. This means that there could also be explanations which are not so innocent and which had not been ruled out. If that were so, then it is still possible that others may have been involved. After all, if someone had been to the house while Keogh was away that night, and drove Anna’s car away, it is possible that they could have done other things before they left. For someone to have been sentenced to a minimum of 25 years imprisonment, as Keogh has, one would have thought that any outstanding ‘could be’ would have been resolved. If this has not been done, then we are still left with reasonable doubt. And the presumption of innocence prevails unless guilt can be proven beyond reasonable doubt.

The role of the prosecution

It is the role of the prosecution to determine the truth, rather than just to obtain a conviction. We argue, therefore, as Mr Borick QC, has done for many years, that it is the duty of the prosecution to examine all reasonable alternatives to guilt. How can guilt be established beyond reasonable doubt if reasonable doubts are not even examined? This was the situation that occurred in the Penney case, for example in relation to the examination of the wiring, the boot light switch or a possible spark from the muffler.

Determining the truth implies that the prosecution will fulfil its duty of informing the defence lawyers of any doubts which arise during the investigation. For example, in our view it is not acceptable that the defence lawyers in the Van Beelen case only learned at a social function, some time after the trials, that someone had ‘confessed’ to the crime.

United States Supreme Court decisions hold that the prosecuting authorities cannot constitutionally withhold evidence that is exculpatory or favourable to the accused. [8] In Canada, the role of the prosecutor specifically excludes any notion of winning or losing; it is made clear that the purpose of a criminal prosecution is not to obtain a conviction, but rather it is the duty of the prosecutor to present credible evidence, firmly but fairly. [9] In Australia the duty of the prosecutor has been defined succinctly as follows:

The duty of the prosecutor, as I see it, is to present to the Tribunal a precisely formulated case for the Crown against the accused and call evidence in support of it … I consider it the duty of prosecuting counsel to assist the defence in every way. [10]

The South Australian Solicitor-General, Chris Kourakis QC, has more recently stated the duty of the prosecutor as follows:

“… the prosecutorial duty [is] to serve the public interest by acting fairly and to assist the court to reach a just resolution of the proceedings. Transparency in and accountability for the conduct of prosecutions are necessary elements in maintaining public confidence in the discharge of that duty.” [11]

Given the cases we have discussed in this book, there is clearly much more that could be done in pursuit of that standard. 

It is important that prosecutors ensure that all relevant evidence and information has not only been collected, but also preserved. Clothing and medical files went missing in the Highfold and Dixon cases and in the Akritidis case.  Temperatures were not taken in the Baby Deaths cases, nor in the Van Beelen, Akritidis, Dixon, Highfold, Niewdach and Ellis and Keogh cases, even though a forensic pathologist was present in some cases or at least always on call.  Photographs, or at least sufficient and suitable photographs, were not taken in Akritidis, Highfold and Keogh. The ‘wet patch’ on the body of Warren on a hot day in the middle of nowhere was not sampled. If even a small sample of Anna Cheney’s blood had been retained, tests could now be undertaken to establish conclusively the presence or absence of the anaphylactic reaction that may have occurred. The role of prosecutors in ensuring that evidence is preserved must be reassessed.

De-institutionalise prosecutions and scientific support

We also take the view that the existing situation, which is that much of the scientific, technical and prosecutorial work is essentially be done by publicly funded departments, must be re-examined. 

We see no reason why the work of prosecutions should necessarily be restricted to lawyers employed by a publicly funded department. Much of the work previously undertaken by the federal Attorney-General’s office, for example, is now undertaken by private sector lawyers. In South Australia we already have systems of independent legal chambers where lawyers with ability could be found to undertake the work of prosecutions.

There are obvious advantages in having a system in which all lawyers are able to prosecute as well as defend. It would discourage the ‘us and them’ attitudes. It could help generate an understanding of the problems and difficulties of each side. It could contribute to better understanding and relationships between police and lawyers. Further, it would give all lawyers better access to and understanding of the expert witnesses and their evidence.

Capable and independent forensic science specialists should be encouraged to compete for the work of the police. Independent forensic science services such as Forensic Alliance Ltd, for example, have achieved this in the United Kingdom. However, because of the infrastructure costs involved, in Australia something like this would need to be organised on a national basis.

There is a need to ensure that forensic science services are impartial and transparent in all their operations. We see no reason why those engaged in scientific work should not be required to service both prosecution and defence clients. Having to work on both sides might well encourage a more sensible and balanced view of things. [12] The normal rules concerning conflict of interest could work to prevent the same individual or organisation from having multiple involvements in the same issue or case. There should be no impossibility or impropriety in two experts of an independent forensic service adopting different views about some forensic science problem. [13] All forensic science and forensic pathology organisations must involve themselves in external peer review.

The conduct of trials

We have already alluded to the fact that the adversarial nature of our legal system can be the cause of some of the problems that are arising. The confrontational approach of the trial process makes it less easy for a witness to concede a point, as it can be seen as weakening their credibility. [14] This sometimes makes it harder to determine the truth and may even mislead the court.

The jury

We do not want there to be any suggestion that the responsibility for any of the alleged miscarriages of justice that we refer to in this book can be attributed to the juries which convicted the accused. They could make their decisions only on the facts and information the court provided them.

Equally, one cannot generally lay the blame with any of the specific individuals or lawyers involved. Without knowing more details about the instructions they were given, or the constraints under which they were working, one cannot attribute individual blame for any perceived shortcomings, without further and proper inquiry. Natural justice also requires that before adverse judgments are made about a person’s conduct, that person has the right to be fully informed about the nature of the concern, and to give a full response to the issues which have been raised. The failure to adhere to this simple requirement has itself been the cause of much injustice in South Australia over the years.

We believe that the jury is a useful and valuable aspect of the trial process because it represents the community. Trial by jury ensures that the criminal law will conform to the ordinary person’s idea of what is fair and just. [15] We appreciate, however, that their job is not an easy one. There have been moves to assist them in their task – practicalities such as providing adequate numbers of photographs and copies of documents, and also projectors and display screens for viewing exhibits and witness demonstrations are basic but important issues. However, there are more fundamental things about the process of the courts that could be done to assist.

In long and complex trials it may be helpful to change the practice whereby the prosecution presents its entire case first and then the defence follows. Rather, the evidence could be presented by topic: for example, the prosecution would put their pathology evidence, it would be cross-examined in the normal way, then the defence would call their pathology evidence for examination and cross-examination. The next topic, say, document examination, would then be dealt with in the same way, and so on. An advantage of this approach would be that it brings together for the jury at the one time all aspects of a complex topic, yet still retains the adversarial nature of the proceedings. In conjunction with this one might expect the experts to confer or to engage in a joint conference before the trial to settle or at least narrow the issues involved. [15] A more innovative approach would be to have the evidence presented, still by topic, but more in the form of a debate with the judge acting as chairman. [16] In a rational forum, one might think that the ability of the decision makers (the jury members) to ask questions of the expert advisers would be no bad thing.

It could well be helpful to develop ways in which the jury could interact more with the witnesses and evidence presented. It can be seen from some of the cases that sometimes the evidence given by experts and investigators have missed the point or have been incomprehensible and confusing, as we saw in the Niewdach and Ellis and in the Penney cases, for example. In situations such as this, in which for whatever reason ‘the court does not rise in indignation’ and ‘opposing counsel does not retaliate with the obvious retort, nor ask the revealing, searching question’, [17] the jury, by bringing their ‘average commonsense to bear’ [18] in asking questions, might get closer to the truth. It has traditionally been considered dangerous to encourage the jury to interact directly with witnesses and counsel. This is a phenomenon of the adversarial nature of the system. There is concern that the wrong sort of questions will be asked. [19] By changing to a more inquisitorial procedure, this concern could be addressed. There is of course the possibility that more interaction with the jurors during the course of the trial would enable them to expose to the court any misunderstandings under which they are labouring.

Even if jurors have doubts or concerns about the evidence, they are not allowed to do their own research to resolve them. This is because they are only allowed to consider evidence which has been presented and tested in court. Judges go to great lengths to explain this to jurors. If a juror should choose to ignore those directions, then there is a great likelihood that the trial will be declared a mistrial and will have to start afresh, as happened in a case in New South Wales. [20]

It might be that in some instances the test of deciding between ‘guilty’ and ‘not guilty’ is too hard for the jury. We know from information published about the juror who spoke out in the Van Beelen case that this can be so. Several jurors in the Splatt case also voiced similar concerns in a newspaper article. [21] In some cases, a more appropriate verdict might be ‘not proven’, as is available in Scottish courts. The introduction of this verdict could provide useful feedback to the court and it can provide community comment on the standard of the investigation and the prosecution.

Such an option would have the additional benefit of avoiding the undesirable consequences in what are called the ‘double jeopardy’ cases. In present circumstances, once a person has been found not guilty, they can’t be charged again for the crime that has been dealt with at that trial, even if further and compelling evidence is discovered. A not-proven verdict has the potential advantage of allowing another prosecution to proceed later if more evidence becomes available.

Expert witnesses

There is a particular onus on prosecution witnesses to be correct and fair. Because they give their evidence first, juries will tend to believe them. This is a natural reaction. It is especially so if the witness is prominent and works for the government. It is very important that such witnesses be cautious. It is easy for pseudo-science to pass as evidence in these circumstances because of the status that is accorded the witness. [22] They are more likely to be believed than an independent expert who may well be better qualified but who may rarely work in that particular field. [23]

In 1972, the British judge Sir Roger Ormrod wrote:

“The one essential of all expert evidence is a frank statement by the expert of the limits of accuracy within which they are speaking, and a readiness to indicate, whether asked to or not, what their evidence does not prove or suggest as likely. Just as counsel is under an obligation to call the judge’s attention to points of law which are against their case, so the expert should be under an obligation to make sure that the court does not, unwittingly, use their evidence without realising its scientific limitations.” [24]

This is the position now confirmed and strengthened by the Preece inquiry in Scotland and the Splatt Commission in South Australia. To some extent it removes the expert witness from the extremes of the adversarial nature of the trial by emphasising their responsibility to the court, rather than to the party they were called by.

Cross-examination

Cross-examination is the means the legal system uses to test the validity of the evidence. It is a powerful technique and is relied upon to reveal the truth. It is generally considered to be effective, but lawyers are becoming increasingly aware of its limitations with regard to expert witnesses. It is of course essential for forensic experts to come to the correct conclusions in the first place. Medical evidence especially needs to be expressed with care and constraint. But it is not sufficient to trust that cross-examination or other experts will always, or even often, reveal errors. [25] The proper examination of an expert should explore their qualifications, knowledge and experience, the facts upon which their opinion is based and the logic of the arguments expressed in the opinion. [26] Some knowledge and reading in the subject by the lawyers involved is important, and there is an argument for a different approach in the training of law students in this regard. Nevertheless, to get an intelligent answer, one must ask an intelligent question. [27] This often requires the assistance of an expert with the necessary qualifications and experience, and the intellectual courage, to risk upsetting colleagues. [28]

If not detected and corrected by cross-examination, mistaken or misleading expert evidence effectively reverses the onus of proof. It does not take long for the evidence to be given, but it may take many years for an accused to refute it. [29] It may even need a book like this to do so.

If cross-examination cannot be relied on to reveal problems with expert evidence, what can? Often it needs other experts in the particular field who read reports of the case or who have a particular interest in the outcome. [30] Trials may well be open to the public, but busy professional people do not have the time to sit through the proceedings to hear the parts of the evidence in which they may have some expertise and interest. A suggestion from the United States to overcome this problem is peer review facilitated by publication of expert testimony, or synopses of such testimony, in professional journals. [31] Judge Weinstein takes the view that ‘If medical journals routinely published excerpts from scientific testimony, “rogue” scientists would quickly come to the attention of their peers and the legal profession’. Likewise, sound and correct evidence would be available which would be a valuable asset in the training of pathologists, scientists and lawyers.

Judges now make most of their judgments (explaining what they do and what they say about why they do it) available to the public on the internet. In South Australia reasons for sentencing are also available in this way. Why should the forensic scientists or pathologists be any different? What they say and do is done on behalf of the public and the public need to know more about this. Publication in professional journals (or on-line) would achieve this.

When and how to involve the expert

A practical problem with our trial process is the effectiveness or otherwise of asking a forensic pathologist or scientific specialist to look at slides, photos, or documents only shortly before they are to be called as a witness. Most complex cases require some period of assimilation and analysis. It may be that to do the job properly a specialist would need to look at the whole of the file, or at the full range of processes and issues involved. Yet in some cases, witnesses have not been asked to look at certain aspects of the case until  they are in the witness box. If a period of reflection and reasoning is required, then it would make sense to give such expert witnesses prior notice of the questions which they will be required to address. [32] It is important that when the specialist is in the witness box they should be questioned in a manner which will bring out all of the significant aspects of the evidence. If the specialist is depending on a scientifically untrained lawyer to point them in the right direction, this might prove to be inadequate.  

The examination and analysis of different procedures and processes takes time and involves particular skills and knowledge, and it involves some cost. However, the failure to pick up on errors early in the process can prove to be far more costly. Professionals must be allowed sufficient time to properly conduct a peer review process.

A national appeal court

In South Australia, unlike the other mainland states in Australia, it is the trial judges who collectively make up the Court of Criminal Appeal. The Chief Justice of South Australia has recently stated that South Australia is not a large enough jurisdiction to be able to have a separate court of appeal. [33]] This means that a person who is an appeal judge one day will be acting as trial judge the next. Given that all of the education, legal experience and job opportunities are invariably based on the one city of Adelaide, one can see the pressures that might lead to conformity. It is interesting to also note that at present, all of the judges of the Supreme Court of South Australia were educated at just one law school – Adelaide University. [34]]

In contrast, in England the judges will be drawn from a more diverse background and range of educational experiences. The work of trial judges is also assessed by a separate court, the Court of Appeal. Appointments to the Court of Appeal are full-time appointments, which means these judges do not have to mix up their function at the Court of Appeal with the conduct of trials. They do not have to consider that if they overturn the decisions of some of their fellow judges today, those judges might overturn their decisions tomorrow. Also, in England the Court of Appeal is a national court. Appellate judges are selected from practicing judges across all the towns and cities of England and Wales – not just from the equivalent of one small city, as Adelaide is. The United Kingdom judges have not spent the whole of their professional life in one city, where they may have practiced as a lawyer for 20 years before becoming a judge, and then conducting both trials and appeals. They would also have had some time as a trial court judge, before being given the chance to sit on appeals.

We take the view that appeal court judges should not in any way feel beholden to those whose judgments are being appealed. One way in which this can be done would be for the appeal court in Australia to also work on a national basis. Each state and territory could appoint a judge to a national appeal court and have the appeals heard by any of the judges who are not from the state or territory of the decision being appealed. In this way the government could afford to have a permanent appeal court. This would lead to a more consistent set of legal principles, and would also overcome the problem of the smaller jurisdictions not having sufficient work to justify the establishment of a full time appeal court.

Competition for the top jobs

Likewise at the state level, jobs at the level of judges and magistrates should be filled by applicants from anywhere within the national boundary. It should be accepted that a lawyer can’t expect to become a judge in the same town where they have been in practice. Otherwise there may be too many potential conflicts of interest. It is commendable that there has already been a move towards this sort of approach: magistrates’ positions in South Australia and judicial officers of the Supreme Court in Victoria are now advertised for nationally. [35]

Perhaps it is time to introduce ‘career judges’ –people who train specifically to be a judge from the time of their graduation, and operate only as judges – as happens in civil law systems in the continental countries. [36]

The appeal system must be improved

We can see from the Keogh case that the appeal system is deficient. If after two appeals, a special leave application to the High Court and two petitions, the problems with the case have still not even been addressed, there must be something wrong with the system. And it is not as though Keogh is the first such case. The Splatt case,  where problems with the trial were not addressed in the course of the appeal processes, is an earlier well-known example of a similar situation. In the Splatt case, however, these problems were recognised eventually by a Commission, an inquiry established outside of the normal process, as seen in Chapter 1.

As a community we must accept that our criminal justice system is fallible, as all human systems are. Indeed, the law allows for the fact that a trial may miscarry for legal reasons, such as an error on the part of the judge or jury. The appeal process is designed to handle  such errors. But trials will miscarry from time to time because of inadequacies in scientific evidence. [37] As we have shown, the appeal system can not cope with these and therefore there should be some arrangement in place to quickly and effectively address the problems when they arise. The public should not have to rely on the efforts of a few people with faith in the innocence of the accused or the support and influence of the media, as in the case of Edward Splatt, to cause governments to address these situations. They occur, and a mechanism to resolve them should be part of our criminal justice system.

A proposal for a judicial review system

It is apparent that the Criminal Cases Review Commission performs a useful and much needed addition to the criminal justice system in the United Kingdom. A sensible first step for Australia therefore would be the expeditious establishment of an equivalent – a judicial review system.

We envisage that an appropriate system would consist of three linked organizations.

A Judicial Review Inquiry (JRI) would be the first stage in the re-investigation of alleged miscarriages of justice. It would have the power to require people to attend interviews and to demand the attendance of witnesses and the production of documents. It must have the power to require witnesses to give evidence under oath. It should have the power to direct the retention of documents or evidence held by or on behalf of any public authority, and to commission independent reports by appropriate experts. It should have an independent chairperson who had no prior involvement in the legal system of the state or territory concerned, and a senior and experienced investigator with the powers of a senior police officer and subject to the direction of the JRI. It would only deal with alleged miscarriages of justice where the normal appeal procedures have been exhausted.

After the reinvestigation, the JRI would prepare a brief with the intention that it be put before a Judicial Review Commission (JRC). The mechanism for doing this would be to present the report to the legal representatives of the parties concerned. It would then be the representatives’ decision to put the matter in the hands of the commission if they so desired. In that eventuality, the JRI would then make a formal reference of the matter to the JRC.

The commission would comprise three Supreme Court judges from outside the particular state. They would have the ability to examine all aspects of the case and to make a determination as to whether the verdict arrived at was reliable. They would not be hampered by the technical rules relating to whether or not matters arising constituted ‘fresh evidence’ as might be the case with an appeal.

The Commission would have the power to overturn convictions and to formally refer matters to a Judicial Review Tribunal (JRT) to determine the matter of compensation for those who have been victims of miscarriages of justice. These matters would be determined in accordance with the normal principles of compensation.

We are aware that to establish and operate such a system will require legislation and funding, but these practicalities shouldn’t be allowed to delay proceeding with this initiative. The need should be apparent to all. Eventually, this review system should operate on a national basis. However, South Australians may not want to wait for that to happen, and so South Australia could set up the system and become a model for the rest of the country. The judicial review system would reconsider the type of cases that have been looked at in this book, thereby helping restore public confidence in our criminal justice system.

On several occasions we have referred to the importance of an effective system of peer review in the context of forensic science and forensic pathology. If peer review is suitable to scientists, then it should also be suitable for lawyers and judges, and a judicial review system such as the one we propose will provide that.

It would be appropriate at the same time to establish a Law Reform Institute in South Australia as called for by the Law Society. [38]] As a body that would examine legal issues to ensure that the system reflected community values, it may well be a suitable vehicle though which some of the recommended changes could be implemented.

The legal and political issues

It is our understanding that the adequacy of the convictions referred to in this book has now become far more of a political issue than a legal issue. Yet the doctrine of the separation of powers means that these respective areas of activity should be examined separately. The judges should be looking to the legal principles and their fair and consistent application to all of the cases which come before them. The Attorney-General, as the senior law officer, should be looking to ensure that the relevant legal procedures have been properly applied. Of course, the Attorney-General is part of the government, and has a political role to play. However, in seeking to advise the governor of the day on the adequacy or otherwise of convictions, the Attorney-General must put those political considerations to one side and ensure that the advice which is given is soundly based in law.

The issues we have raised are not about any one individual’s performance. We deal with a much broader and more important question. It was neatly stated by Sally Neighbour at the conclusion of the 4 Corners ‘Expert Witness’ program:

“What is clear is that there is much more in question than one man’s competence. The much bigger question is how an entire system has let so many doubts go unresolved in so many cases for so many years.” [39]

We take the view that we cannot adequately face the future if we cannot bring ourselves to face the truth.

Moving forward

The proper functioning of the criminal justice system is an essential safeguard for the liberty of each and every one of us. The cases we have discussed in this book give rise to significant areas of concern. Undoubtedly, the problems arise in part because the system is confrontational and designed to win. It is not directed at critical engagement designed to seek the truth. Some changes to the system are required.

But changes in approach are also required. Even though they represent different aspects of the system, police, prosecutors, defence counsel, forensic scientists and pathologists need to improve their attitude to teamwork and to begin working with a common goal of justice in each case.

The cornerstone of the criminal justice system is the principle that the search for truth is fundamental to the administration of justice. The focus must be on the truth, not on winning the case. Justice fails when the goal of winning a case unnecessarily eclipses the need to find the truth. [40]] The aim is not merely justice in a single case for a single individual, but justice for all. Without the precepts of justice, the truth will not emerge. Without truth, justice cannot prevail. [41]

It must never be forgotten that money cannot compensate for the damage to the lives of people who have been convicted of crimes they did not commit.

To move forward, the alliances of convenience must be replaced by critical engagement. There must be a proper culture of peer review. Peer review must operate at and between all levels of the justice system. Police, pathologists, scientists, lawyers and judges must be subject to it as part of the way things are done.

Accountability must be assured, and it must be democratic.

This will require a change of attitude and approach – but it can be done. Provided there is a genuine desire for justice.

Endnotes

1. J Robertson, ‘Integrity issues impacting on the provision of forensic services’, Australian Journal of Forensic Sciences, vol. 31, 1999, pp. 87–97 at p. 89.

2. ‘Premier right to criticise justice system’ (editorial), The Advertiser, 1 August 2003, p. 16.

3. ‘An injustice in our system of justice’ (editorial), The Advertiser, 30 July 2003, p. 16.

4. ‘Kourakis gets to heart of flawed case’ (editorial), The Advertiser, 7 August 2003, p. 16.

5. Sean Fewster, ‘Concern over number of dropped prosecutions’, The Advertiser, 16 June 2003, p. 11.

6. Interview by Rohan Wenn, Today Tonight, television program, Channel 7 (Adelaide), recorded 27 June 2002. 

7. Today Tonight, television program, Channel 7 (Adelaide), 30 July 2002.

8. JF Keefe, ‘Forensic science services and the criminal justice system as viewed by the defense’, Journal of Forensic Sciences, vol. 24, 1979, pp. 673–80.

9. Boucher v The Queen (1955), pp. 110 CCC 263 (SCC). Quoted in Robertson, ref. 1.

10. Christmas Humphries, in Crim LL 739, 1955. Quoted in Crispin, ref. 29.

11. Re: Request to advise on matter of Paul Nemer and associated issues. Report to the Attorney General, Mr Chris by QC, Solicitor-General of South Australia, 7 April 2004, p. 4.

12. Justice Wood, ‘Forensic sciences from the judicial perspective’, Australian Journal of Forensic Sciences, vol. 35, 2003, pp. 115–32.
C Porter, ‘The evidence of experts’, Australian Journal of Forensic Sciences, vol. 27 1995, pp. 53–8.

13. G Samuels, ‘Is this the best we can do?’, Australian Journal of Forensic Sciences, vol. 25, 1993, pp. 3–9.

14. See Justice Wood, ref. 12.

15. R Amlot, ‘4. Leave the jury alone’, Medicine, Science and the Law, vol. 38, 1998, pp. 123–5.

16. See Justice Wood, ref. 12.

17. D Patterson, ‘What can science do for the law?’, Journal of the Forensic Science Society, vol. 15, 1975, pp. 3–6.

18. DS Bell, ‘The expert misleads. The court follows’, Australian Journal of Forensic Sciences, vol. 27, 1995, pp. 59–64.

19. C Porter & RWR Parker, ‘The demeanour of expert witnesses’, Australian Journal of Forensic Sciences, vol. 33, 2001, pp. 45–50.

20. JD Jackson, ‘3. Trying criminal cases without juries’, Medicine, Science and the Law, vol. 38, 1998, pp. 112–22.

21. John Doyle, (Chief Justice of South Australia), ‘Jurors cannot investigate details of crimes’, The Advertiser, 29 May 2004, p. 28.

22. Stewart Cockburn, ‘The jurors: some serious doubts’, The Advertiser, 4 May 1981, p. 4.

23. S Cordner, ‘Outcomes for society: forensic pathology’, Australian Journal of Forensic Sciences, vol. 35, 2003, pp. 133–40.

24. See Porter, ref. 12.

25. RFG Ormrod, ‘Evidence and proof: scientific and legal’, Medicine, Science and the Law, vol. 12, 1972, pp. 9–20.

26. See Porter, ref. 12.

27. See Porter & Parker, ref. 19.

28. AA Moenssens, RE Moses & FE Inbau, Scientific evidence in criminal cases, Foundation Press, New York, 1973, p. 13.

29. KJ Crispin, ‘Coping with complexity’, Australian Journal of Forensic Sciences, vol. 24 1992, pp. 74–81.

30. DS Bell, ‘Whose accountability, judges or experts?’, Australian Journal of Forensic Sciences, vol. 26, 1994, pp. 74–6.

31. See Samuels, ref. 13.

32. JB Weinstein, ‘Enhancing the relationship of science and the courts’, Journal of Forensic Sciences, vol. 43, 1998, pp. 242–5.

33. See Cordner, ref. 23.

34. Greg Kelton, ‘Special appeals court ruled out’, The Advertiser, 7 April 2004, p. 25.

35. Sean Fewster, ‘Judge joins “elite” on the bench’, The Advertiser, 15 May 2004, p. 19.

36. Andrew Goode, ‘Impartial judiciary a must, however selected’, The Advertiser, 18 January 2003, p. 28.

37. IF Shepherd, ‘The issue of the inquisitorial system of justice’, Australian Journal of Forensic Sciences, vol. 31, 1999, pp. 19–28.

38. See Samuels, ref. 13.

39. Andrew Goode, ‘Panel to place a focus on issues of law’, The Advertiser, 25 August 2003, p. 18.

40. ’Expert Witness’, 4 Corners, television program, ABC TV, 22 October 2001.

41. B Manarin, ‘Assessing the expert: a call for reciprocal disclosure in Canada’, Medicine, Science and the Law, vol. 39, 1999, pp. 17–22.

42. KE Melson, ‘President’s editorial – The journey to justice’, Journal of Forensic Sciences, vol. 48, 2003, pp. 705–7.

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