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A state of Injustice - Dr Robert N Moles
Introduction

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

A properly working justice system is fundamental to a civilised society. It is part of the social contract upon which modern society is based. The principle of the social contract is that each one of us gives up our right to use force against others on the basis that the justice system will protect our rights, if and when they are transgressed. This means that the justice system has a monopoly on the use of force. None of us is entitled to ‘take the law into their own hands’. Where our rights have been infringed, we must look to the officials of the system both to recognise our rights and enforce them on our behalf.

In our modern and complex society, proper investigations of alleged infringements of rights depend on each of the people involved acting with integrity and skill. In more serious cases this will include a wide range of people with very different skills. For example, where there is a suspicious death, a forensic pathologist has to examine a dead body to determine how and when the person died. A forensic scientist has to undertake microscopical examination of materials to help with identification, or with an understanding of the sequence of events. The police have to take statements and interview people. The prosecutor may have to prepare the case for trial. Other lawyers may be engaged to act for anyone who may be charged.

The result of all of this activity might eventually be played out before magistrates and judges. It is their job to ensure that the rules of evidence and procedure are adhered to. However, the ultimate test will be applied by people without any specialist skills. In the common law system of justice that applies in Australia (and the United Kingdom, Canada, India and the United States of America, for example), the ultimate arbiters of guilt and innocence in serious criminal cases are normally ordinary members of the public – the jury. It is a cardinal principle of the common law system that ultimately people are subject to the judgment of their peers – their equals.

That is why we have determined to write this book for the general reader rather than the specialist reader. There is a developing public perception that all is not well with the criminal justice system in South Australia. In the following pages we will explain at least some of the reasons why that may be so. 

The broad theme of the book is to canvass the possibility that there have been miscarriages of justice in South Australia in the last few decades. We will suggest that these have come about because, for various reasons, the normal checks and balances within the criminal justice system have failed to operate properly.

To get our bearings right, it is important that we have some agreement or understanding of how things should be done. To achieve this we have worked in close consultation with specialists in the various areas of investigations and legal work.

This book is divided into three parts. In Part One we discuss some of the general legal, scientific and medical considerations that should be kept in mind when reading about the individual cases. To help clarify how the problems arose in the cases we look at, we start by providing some understanding of the criminal law process, police and forensic science procedures, autopsy and pathology procedures and various medical conditions relevant to those cases. [1]

In Part two we look at some cases which give rise to considerations about possible miscarriages of justice. Some of these cases involve pathology. We have given the Keogh case extended treatment because it encapsulates the wide range of problems found in other cases, and because it also demonstrates problems with the existing appeal processes. The Penney case, which involves a fire in a car, provides an understanding of the problems that can occur in the investigative stage of a case. It also highlights some of the procedural aspects of trials, in particular the special requirements in cases that depende  on circumstantial evidence. We then look at some plea-bargaining cases that demonstrate the ‘negotiated’ aspects of criminal charges.

In Part Three we compare the systems in other countries and present information on how miscarriages of justice in the United Kingdom are being handled, and what happens in the legal systems of European countries. This will provide some food for thought on what may be done to put matters right in South Australia.

If we have been able to isolate a common element to the problems that have been identified, it could be summed up in the expression ‘the inappropriate use of science’. All of the other issues that we raise are discussed in the context of the inability of the criminal justice system to identify and correct the problems which have arisen from its inappropriate use of science and scientific methods.

By explaining what has been done, or sometimes not done, by the forensic pathologists, police, scientists, lawyers and judges in a number of criminal cases, we will be asking whether these cases have been conducted and processed properly. In some cases, we look at problems which resulted in investigations being dropped, or prosecutions not proceeded with. In some other cases we question whether the verdict was ‘safe and satisfactory’, as the lawyers say. Our inquiries suggest that they may not have been. As a result, there may have been a number of miscarriages of justice. More detailed enquiries, with the ability to call witnesses and have them examined under oath, must now be established to get to the truth in these cases.

The law states that if, at the end of the trial, there is reasonable doubt as to guilt, then the accused is entitled to be acquitted and to retain the presumption of innocence. It follows then that the jurors at the trials that we explore in this book were agreed that they did not have reasonable doubt as to the guilt of the accused. We cannot know how a jury evaluated individual aspects of the evidence in a trial because jury deliberations take place in secret, but there is no reason to believe that their conclusions were not fair and proper on the basis of the information which was available to them at the time. However, we will argue that in many ways the issues may not have been properly presented.

With the checks and balances that are built into the criminal justice system, we would have expected any shortcomings in a case to have been identified by the prosecutors, defence lawyers or judges at the time of the trial, or if not then, in the appeals. If that has not happened, then it can only be because there is some systemic fault. Perhaps the prosecutor failed to examine all the possibilities before accepting the view proposed by the pathologist. It may have been that the defence lawyer had an insufficient knowledge of the science involved and so failed to cross-examine the expert witnesses properly. It could even have been that the judge allowed the expert witness to venture opinions which went beyond the claimed area of expertise.

Each person involved in the justice process has to ensure that, at the end of the day, justice is done; that is, that the accused receives a trial according to law. Each participant has their own particular responsibilities and while their roles and functions differ, each also has to work closely with the others who are part of the process. The relationships must be based on collaboration but they must also engage in critical evaluation of each other’s approach for the process to work effectively. In this network of professional relationships, ‘doing the right thing’ requires strength of character and a commitment to one’s sense of professional principles. Where either of these things is weak, the system is likely to fail.

We accept that it is in the nature of human activity that people will make mistakes. However, social systems should be so designed that when mistakes are made they will be identified and corrected as soon as possible. Obviously the amount of attention directed to picking up and correcting mistakes will depend on the potential importance of possible errors. To incorrectly determine that a person has committed suicide, for example, when in fact they were murdered, is a serious error. To determine that someone has been murdered, when they died of natural causes, would be an equally serious error.

The issues involved in criminal justice matters affect every one of us, and it is important that ordinary people are empowered by being given information that enables them to arrive at their own conclusions. It is not appropriate that such issues are monopolised by experts, for much of what they do is done in our name. As such, we believe the experts have a responsibility to account to us for what they do. This presupposes that they will tell us what they are doing. The courts are open to the public, but that does not necessarily make them accessible to most people. We need to develop ways in which the evidence of forensic scientists and pathologists, and the way in which such evidence is handled by the lawyers, can be made more readily available for community scrutiny and comment.

We would not want this review of cases to be misconstrued as a policy of being ‘soft on crime’. Every rape, assault or murder has a devastating effect on a wide group of people. This includes the families, friends and neighbours of those involved on all sides. Every such incident lowers our sense of confidence and wellbeing in society at large. It is important that the perpetrators of such wickedness be dealt with appropriately.

However, it is also important that we do our very best to ensure that we have identified the real perpetrators. It is important to reassure ourselves that we have not just latched on to some convenient scapegoat.

After every dreadful crime there is a social expectation that someone (or some people) be brought to account. There is often relief when an arrest is made and the trial commences. Perhaps this relief is partly because the most important and basic legal presumption – that people are innocent unless and until they are proven to be guilty – has been overlooked. In criminal cases in Australia, the standard is proof of guilt ‘beyond reasonable doubt’. This means that any doubts must be fully investigated in order to determine whether or not they are reasonable. A doubt cannot be regarded as unreasonable simply because someone has determined that it would be inconvenient to explore that possibility. Such an attitude would be based on prejudice, which simply means that the issue has been ‘prejudged’. All reasonable lines of inquiry must be pursued, whether the tendency is to inculpate (prove guilt) or to exculpate (acquit) some particular individual. Grave consequences follow a finding of guilt, especially for the more serious crimes. When we as a society subject people to those consequences, we must be sure that we have taken all reasonable steps to ensure that we are as confident as can be in the outcome.

The social act of sentencing a person to a long period of imprisonment, if attributed to the wrong person, can be as damaging to them and their family as was the original crime to the victim. To do such a thing, is to damage the fundamental fabric of our society. Our confidence in the ability to get it right is weakened. We may even stop caring about whether we have got it right, so long as we have someone to blame. By losing our respect for others, we inevitably undermine our own sense of self-respect. Where errors have been made, people’s sense of self-respect can be restored (to some extent) by acknowledging those errors. We may even feel emboldened to say ‘sorry’ or to take other steps to make amends.

Sadly, it seems, our ability to re-examine cases improves only after the passage of significant periods of time. There seems to be an unwillingness to look at cases of concern at the time they occur. Maybe there is always the tension between ‘doing the right thing’, and avoiding ‘embarrassment’ to officials who hold high office. Once a person has been convicted of a serious offence, and exhausted all avenues for appeal, it may be that as many as twenty or so judges and other senior officials of the justice system will have concurred in the result. To find subsequently that they may have fallen into error may not reflect well upon them. It would seem that we have allowed ourselves to be overawed by ‘authority’, and that it is easier to wait until those in charge are no longer around before asking embarrassing questions.

The danger to justice lies not, however, in the challenging of some of its findings, but in not challenging them. The experience in the United Kingdom has been that admitting and rectifying errors does not undermine the system. On the contrary, it should give every citizen confidence that the system is there for them and to protect them – and that it is honest enough and robust enough to withstand legitimate scrutiny and valid criticism. The test of a legal system is not whether it makes mistakes for all such systems do. The real test is the willingness of the system to correct errors when they are brought to the attention of the officials.

While the legal system can destroy a person’s integrity and standing in the community by way of a judicial decision, it cannot so easily restore that standing by later revoking that decision. Insisting from the outset that lawyers and scientists be trained regarding thoroughness and proper ethical standards will mean that due diligence will be applied without exception. Unless we insist upon the rights of all, we cannot be confident about the rights of any.

While there are always costs involved in doing a job properly, they will always be disproportionately outweighed by the financial and social costs of not doing it properly. In 1983, it took a Royal Commission in South Australia over 190 hearing days and some $3 million to overturn the conviction of Edward Splatt. It took a hearing of only eleven days to convict him in the first place. It clearly would have cost a good deal less to have utilised irrefutable expert advice before he was put on trial.

It is our view that many of the serious problems which have arisen in recent years have come about because lawyers (be they counsel or judges) may have had difficulty in grasping the complexity of the underlying scientific and technical information. If proper procedures have been departed from, it is the lawyers who should be able to identify the shortcomings and call attention to them. South Australian lawyer and president of the Australian Criminal Lawyers Association, Kevin Borick, QC, in referring to some of the cases we discuss, stated in the ABC TV 4 Corners ‘Expert Witness’ program on 22 October 2001:

"I think you have to lay the blame directly with the legal profession and with the judiciary. It was our responsibility to make sure that something like this didn’t happen and I include myself in the same criticism. It did happen. And now we have to put it right." [2]

Not only do we have to put it right, we have to try to stop it happening again. To put right injustice, we cannot avoid asking awkward questions. To minimise the possibility of such injustices occurring in the future, those who hold positions of responsibility within the criminal justice system must be called to account. The only form of accountability worthy of the name is that which follows hard upon the heels of the act in question. Proper performance of tasks will only occur when people are assured that substandard performance will be found out – and that the people concerned will be required to account for what they have done.

Accountability must not only be assured, it must also be democratic. It must apply to all within the system irrespective of rank or seniority. The failure to question or to hold accountable people in senior positions leads to a decline of standards and behaviour of those beneath them. Through ‘alliances of convenience’, subordinates can be discouraged from asking proper questions or insisting that proper procedures are followed. They can be encouraged to turn a blind-eye to shortcomings. Whether the pressures are social, financial or tyrannical, some people acquiesce. In doing so, they allow the system of checks and balances to be manipulated and, in doing so, undermine their own integrity and that of our system of justice.

The only way to restore the system to robust health is by implementing the system of accountability, which should have been there all along, and letting the cards fall where they may.

It is important to develop confidence in our legal procedures and institutions. But that presupposes that the procedures in place are correct and uniformly and fairly applied. Our research shows that in some cases the procedures for peer review and the appeals process have been deficient. This book is an attempt to raise awareness of the need to re-establish a sense of proper procedures. By looking at what has gone wrong, we can learn more about how to prevent those errors occurring in the future.

[1] The law and procedures are based on those in South Australia. Although the names may vary from one place to another, the basic procedures and issues we refer to are part of all Common Law systems.

[2] ABC TV 4 Corners – ‘Expert Witness’ program, 22 October 2001

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