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A state of Injustice - Dr Robert N Moles
Chapter One - The Criminal Justice System

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 begin our look at possible miscarriages of  justice by describing how the criminal  justice system works in the investigation and prosecution of crime.

The Case of Edward Splatt 1978

Edward Splatt was charged with the murder of Mrs Simper, a 77 year-old Adelaide woman who had been badly beaten, sexually assaulted and strangled in her bedroom. The case was complex, dealing with paint, wood, birdseed and biscuit particles found in her room. It was a rare case in that the only evidence leading to the identification of the accused was the scientific evidence. No one had ever seen Splatt with the deceased or in her house.

Splatt was convicted of the murder in 1978. His appeals were unsuccessful. However, Stewart Cockburn, a journalist with the Adelaide Advertiser, became convinced of the unsatisfactory basis of the prosecution case. He ran a campaign in the paper for about two years before the government agreed to a royal commission. Splatt’s conviction was subsequently overturned in 1984 and he was paid some $300,000 by way of compensation.

The commissioner was highly critical of the conduct of the trial, especially the operations of the expert witnesses. He put forward a number of principles concerning the way in which lawyers and expert witnesses should work. [1] Had they been adopted, they may have prevented many of the apparent miscarriages of justice that appear in this book.

Before we look at these recommendations we will first explain some of the more important aspects of how the justice system works.

Criminal offences

In any criminal offence there are two elements – the physical and the psychological.

For someone to be successfully prosecuted for committing a crime there must have been a completed physical act (called the actus reus). This act forms the basis of the criminal offence. For example, goods were taken without payment, or someone was shot, stabbed or poisoned. No one can be convicted of just having ‘bad thoughts’. Sometimes a person may be charged with an attempted crime, but even here there must be physical proof the person did something to prepare for the crime.

Also, those physical acts must have been undertaken with knowledge, understanding or intention (called the mens rea). That is, the person committing the act knew or was aware that the act was unlawful and that they were doing it. If someone is mentally ill or delusional, or perhaps suffering from the effects of medication or a brain tumour, and commits a crime, they may not have understood or even been aware of what they were doing. If so, they will have a defence to the charge. This defence generally does not apply to acts committed while under the influence of alcohol or drugs. In such cases, the mental element tends to shift to the taking of the substances. If the person took them consciously and knowingly, then they will usually be held responsible for  what they did while they were under their influence.

Therefore, the first task of any investigation is to determine whether or not a crime has been committed. The competing rights of the victim and the accused are often spoken about, but even this may prejudge things. There cannot really be talk of a victim of a crime at all until it has been determined that some offence has been committed.

The presumption of innocence

A basic principle of Australian law is that everyone is presumed to be innocent unless and until any criminality can be proved beyond reasonable doubt. This is important because it means that people do not have to prove their innocence. The State, through the prosecutor, has to prove their guilt. If there is reasonable doubt as to the guilt of the accused it means that the prosecution cannot succeed. It is for this reason that many people undoubtedly do not get convicted for things that they have done. Rightly or wrongly, the view which the common-law system takes is that whenever there is reasonable doubt, it would be unfair to convict a person. It is said that it is better to allow an otherwise guilty person to go free than to run the risk of convicting an innocent one.

An acquittal

Once someone enters the criminal justice system as an accused, the end result is a verdict of either ‘guilty’ or ‘not guilty’ after some form of hearing. If the verdict is ‘not guilty’, the accused will be acquitted by the court and cannot be recharged with the same or a similar offence that arises from the same circumstances, even if fresh evidence later comes to light. However, an acquittal does not mean that the person has been proved innocent. It means that the person has not been proved guilty and therefore retains the presumption of innocence. Bear in mind though that by the time an unsuccessful prosecution has finished, an accused may well have lost their job, their marriage and their self-respect. They may have spent all their savings and more on their defence. People who are acquitted are often surprised to find out that none of this will be repaid or compensated for by the prosecutor’s office. It can be seen then just how important the role of the prosecutor is in the administration of justice.

Prosecutions

There are important differences between civil and criminal cases. In a civil case the action is between individuals, companies or public entities. The remedy being sought is usually some form of court order or compensation. This area is usually referred to as private rights.

In a criminal case the action is between the State on the one hand and an individual or group on the other. The remedy being sought is usually called a ‘punishment’ for having infringed some law and the duty which it imposes. These duties apply automatically to all citizens. For this reason, it is important that they are clear and well understood. Equality before the law means that rich and poor alike are required not to steal or engage in criminal damage or injury to others.

The public prosecutor

Each state and territory has a designated official to enforce the law on their behalf.. They may be called public prosecutors or crown prosecutors. In South Australia there is an Office of the Director of Public Prosecutions with a Director of Public Prosecutions (DPP) as the head of it. Responsibility for prosecutorial decisions, however, rests with the Attorney-General by reason of the power conferred by the Act governing the office of the DPP. The Attorney-General in turn is accountable to Parliament and ultimately to the public. [2]

The Office of the DPP is a publicly funded department that is independent of the police and the government. Whereas the police usually prosecute minor offences in the Magistrates or Local Court, the Office of the DPP prosecutes the more serious offences, such as murder and serious assaults. However, it is always important to determine where the line of responsibility is to be drawn. In the more serious cases, the decision  to prosecute and how prosecutions are to be pursued is a matter for the DPP’s office, not the police The investigation of suspected criminal activity is the responsibility of the police who will (or should) jealously guard their independence in that respect.

The victim’s family may pressure the police to bring charges against an alleged perpetrator. The police, who may have had a good deal of contact with the family, may find it hard to tell them that the evidence is not sufficient to support charges being laid or pursued. Rather than upset or anger the family by telling them this, the police may feel that the matter should be put to the DPP’s office to let them make that decision.

Similarly, the DPP may come under pressure, by the family, or by publicity or public interest in the matter. This applies particularly where there have been public outrages such as bombings or shootings, or where young children have been killed or sexually assaulted. Public confidence often requires a result. Laying charges against someone often reassures the public that the system is working properly and that they are again safe at last.

It is the role of the prosecutor to present the case against the accused in court, and to call evidence in support of it. It is the prosecutor’s duty to ensure that the prosecution is lawful, that there is a reasonable prospect of conviction, and that it is not vexatious or trivial. It is also their duty to ensure that the evidence, be it scientific or otherwise, meets the appropriate standards and is presented fully and fairly.

The pressure to get results might mean that the prosecutors lay charges when the investigation is still proceeding or the evidence is still not adequate. Once this happens, then tunnel vision can set in and the only goal appears to be firming up the evidence against the accused person. Other possibilities fall by the wayside and it is ‘all hands to the pumps’ to pursue the conviction ‘successfully’.

Our study of legal systems shows that this phenomenon has been the cause of a number of miscarriages of justice. The cases show that even judges and juries can be caught up in the zeal to convict someone for the wickedness that has happened. Obvious examples are the Lindy Chamberlain case (the ‘Dingo’ case) in Australia, or the suspected terrorist cases of the Guildford Four and the Birmingham Six in the United Kingdom. It is often forgotten that the importance is not just punishment, but punishment of the right people. It is important to remember that every time  the wrong person is convicted, the real villain is then safe to walk the streets. One imagines that they are likely then to commit further offences.

Defence counsel

‘Defence counsel’ is the term used for the lawyer who is representing the accused person in court. It is their role to test the evidence brought by the prosecution. They might do this by calling witnesses (expert or non-expert or both) to present evidence, or they may do it only by cross-examination of the prosecution witnesses to explore any doubt, error, prejudice or dishonesty of the witness. For expert witnesses, this may be about the extent of their training, knowledge and expertise in the tests conducted, the interpretation of such tests as were done, or why other or further tests were not done. The examination might probe the integrity of the exhibits and the chain-of-custody of the items that have become exhibits in the case.

To cross-examine experts effectively, counsel needs to have at least some knowledge of the subject, which is normally achieved best by consultation with relevant experts, who may give evidence later on behalf of the accused. Counsel is obliged to put their client’s case to the best of their ability, and a well organized, sound and probing cross-examination is essential to the proper functioning of our justice system.

In addition to representing their client, however, a barrister or solicitor is an officer of the court. This means that in addition to their duty to the accused they also have an overriding duty to the court to ensure that it is not misled.

Plea-bargaining

Plea-bargaining is an important part of the criminal justice system and is widely used to minimise delays in the handling of cases in the courts. Normally, where it is alleged that a person has committed a crime, the prosecution and defence counsel will exchange views about the most appropriate charges. It is the responsibility of the prosecution to lay charges or continue with prosecutions only where they have ‘reasonable prospects of success’. In these discussions, the defence lawyers will, no doubt, argue that the evidence is weak, and that lesser charges – or perhaps none at all – might be more appropriate.

It is accepted that most prosecution services have a very substantial workload, and that it is in the interests of all concerned to obtain negotiated outcomes without the need for a trial, provided that the rights of the accused are not jeopardised nor the expectations of the community diminished. In 1994 a national set of guidelines was introduced to deal with the plea-bargaining process.

How plea-bargaining works, is that sometimes the accused will accept that the evidence or the circumstances are not in doubt, and their lawyers will then try to persuade the prosecution to go for the lowest reasonable charges in return for a guilty plea. At the same time, the prosecution will be making it clear that a guilty plea at an early stage could be taken into account by the judge in determining the sentence.

In the case of doubtful circumstances, the prosecution will have to form a view as to whether it is better to deal with the matter at that time or await the outcome of further investigations. On pleading guilty, the accused person will be bound to accept whatever sentence the judge imposes. Judges can refuse to accept a guilty plea if they take the view that the evidence does not match the charge. Aw we will see later, a number of people in South Australia who were initially charged with murder were subsequently convicted for dangerous driving or manslaughter as a result of plea-bargains.

Committal proceedings

Once the prosecution decides to go to trial, they face the first public check in the prosecution process, which is the preliminary or committal hearing. This hearing is to review the evidence against the accused and to satisfy a magistrate that there is a sufficient case to go for trial. This is similar to the Grand Jury part of the proceedings in the United States. There only needs to be a prima facie case at this stage. ‘Prima facie’ means ‘on the face of it’ or ‘at the first examination of it’, which means that there must appear to be sufficient evidence to provide a reasonable prospect of securing a conviction. It will not be known at this stage whether any of the evidence will be ruled inadmissible at the trial, whether further evidence will come to light in the meantime, or whether some of the evidence will be eliminated by cross-examination during the trial. Sometimes committal proceedings are handled in written form and involve an exchange of the relevant statements and reports (called a ‘hand-up’ committal). Alternatively, witnesses can be required to attend for oral examination as in court. The oral form of committal proceedings takes longer and either side can request it. It gives the lawyers a chance to test the witnesses in the absence of a jury. They can get the measure of a witness and assess whether they are likely to be convincing before a jury. The main focus for the magistrate is to say whether the evidence presented at that time would be sufficient to secure a conviction if it proves to be both admissible and convincing.

The Jury Trial and the Adversarial System

The Australian legal system is an adversarial system. This means that each side puts its version of events to a jury by presenting witnesses and taking them through their evidence by asking questions. The witness’s testimony is then ‘tested’ by the other side through cross-examined. It is the role of the jury, after hearing the evidence, to determine what the facts are. The judge acts like an umpire to ensure that the two sides play by the rules.

In contrast, the European legal system is an inquisitorial system. They have an investigating magistrate and the judges and magistrates take a far more active part in the investigations and the proceedings in court. The judges are entitled to engage actively in asking questions and in seeking the truth of what happened. Some argue that this system works better – we will discuss this later.

The Jury Trial

If a magistrate commits someone for trial for a serious offence, it will be in a higher court. In South Australia this will be either the District Court or the Supreme Court, depending upon the seriousness of the offence. Some financial assistance, or legal aid, is normally provided to those unable to afford legal representation, especially on more serious charges. Indeed it is now the law  that if a person is unable to pay for their legal representation on serious criminal charges, and the State will not pay for their defence, then the prosecution cannot proceed (the Dietrich principle). [3]

Normally, serious criminal offences are heard in front of a jury. One of the early tasks therefore is to empanel the jury which will be selected from names on the electoral role. Some people are excluded automatically because of   their occupation – police officers, lawyers and politicians are the obvious examples. Jury selection in Australia is not the sophisticated operation it has become in the United States. Usually there are a few preliminary questions to determine if there is any obvious bias or inability of a proposed juror to approach the matter with an open mind. Anyone related to the accused or any of the witnesses are excluded, as usually are those with more extreme social or political views. The experience is that most ordinary people appreciate the seriousness and importance of the task. The legal system takes the view that people are ultimately to be tried by their peers; ordinary people just like them. It has resisted the idea of specialist juries. In earlier times, ordinary people were expected to be property holders, or those with some obvious investment in the community. Nowadays, one simply has to be old enough to vote.

Many trials are complex and involve sophisticated science, accounting or other specialist knowledge. Jurors, however, cannot ask the witnesses questions, nor may they talk to the judge or to counsel about why the case is being handled as it is. They can ask the judge for clarification of any legal matters that they have to consider.

The prosecution and defence counsel try to persuade the jury to their point of view; the judge sums up the case and may put suggestions to the jury. Counsel and judges cannot go beyond that.

The important task for the jury is to determine a guilty or not guilty verdict in the matter before them. (The term ‘verdict’ is derived from the French words ver and dit and means literally ‘a speaking of the truth’.) If they need to know any law, the judge will direct them in relation to that and they must take the law as the judge explains it to them. It is said that the facts are for the jury to determine and no one else can tell them what the facts are. However, at the end of the case, there is really no way of knowing what facts the jury actually accepted. All that is known is their verdict. From that the public can attempt to infer what facts the jury accepted – but they can never really know.

Witnesses

The normal role of a witness is to give evidence in court about what has been experienced directly (what they saw, heard or felt). They are not allowed to give evidence about what they have been told by others (hearsay), nor about their deductions as to what their experiences might mean. The jury has to assess whether the witnesses are truthful and correct.

Psychological studies have shown that eye-witness testimony is notoriously unreliable. Without any conscious awareness of doing so, witnesses edit their version of events to fill in any gaps and sometimes to fit in with their expectations of human behaviour. If you were close to an event when it happened, you may be reluctant to state that you do not know or cannot remember the size or shape of the vehicle involved, or of the offender. The police may subtly suggest some alternatives and within a few minutes there may be clear agreement on matters which moments before were in doubt.

Expert witnesses

The role of the expert witness is different to that of the ordinary witness. Experts must have credentials upon which their expertise is based. Qualifications, courses of study, being well read and well regarded in the area of their expertise are what one would expect to find.

Like and ordinary witnesses, expert witnesses  give evidence about what they have seen, as in the case of a pathologist who gives evidence  on the observations at an autopsy. However, the expert witness is the only type of witness who is allowed to give an opinion. This means that they are allowed to speak about what inferences may be drawn from the facts as they are or may be established. This is done to assist the jury in their interpretation of the evidence. The expert can say that if there are red stains in a tissue section then that can be understood to mean that there was bruising on the victim. The jury is free to accept or reject the expert opinion, and not infrequently, experts will be called to contradict each other on key points. The expert is therefore able to suggest an interpretation of the facts which an ordinary witness is normally not allowed to do. A forensic pathologist, therefore, would be both a witness and an expert, and it is important to distinguish what a pathologist (as witness) saw, and what a pathologist (as expert) might infer.

In some of the cases in this book, this important distinction seems to have been blurred. There are instances where the facts are based on assertions made by the expert witness without the slides or photographs that would corroborate or substantiate those facts being put into evidence. It is also important that when the expert is stating an opinion about what the given facts mean, the reasoning that led the expert from the facts to the conclusion should also be clearly stated. Again, in some of the cases which we discuss, this does not appear to have been done. The conclusion appears to have been based on little more than a bald assertion – to be accepted or not.

The standing and demeanour of an expert witness can have a significant effect upon the jury. Also, an expert witness should explain their evidence in a manner and with wording that the jury can understand, yet still be scientifically correct.

Admissibility and relevance of evidence

One of the most important tasks for the judge in the adversarial system is to determine the admissibility or inadmissibility of evidence. For example, to be admissible, the judge must be persuaded that the evidence is both relevant and probative. This means that if accepted, it would tend to prove the facts in relation to the charge, for example, that the person was at the scene at the time of the incident. However, the judge must also accept that the evidence is not unfairly prejudicial. If the evidence showed, for example, that the accused held extreme or unpopular views, then if not essential to the charges before the court, the judge might say that it was inadmissible because it would prejudice the jury against the accused. The rules of admissibility of evidence are some of the most complex and technical in all of the criminal law. In South Australia, the practitioner’s ‘bible’ is Criminal Law South Australia by Robert M Lunn. It consists of about 5000 pages in loose-leaf volumes and is updated six times a year.

The voir dire

Frequently the lawyers for each side want to have lengthy arguments about the admissibility or otherwise of certain evidence, or whether a particular witness is an expert or not. They know that their prospects of success and failure in a case will depend on the judge’s rulings on these issues. When they get to the point where that evidence is about to be put before the court, the opposing lawyer will tell the judge that there is a matter to be discussed ‘in the absence of the jury’. The jury will then be sent out of the courtroom while the judge hears the arguments from each side. If the matter is the acceptability of a witness, the witness may be examined and cross-examined by the respective counsel. When the matter is resolved, the jury is brought back into the court and the trial then continues – with or without that evidence, depending upon how the judge ruled on it. The jury is never informed what the issue was or what the judge’s ruling was. This type of hearing, with the jury absent, is often called ‘a trial within a trial’ or voir dire, which is from the French words ‘to see’ and ‘to say’.

Trial procedures

At the start of the trial, the prosecution and defence lawyers make opening statements, outlining the case and the evidence they intend to put before the court. This is to give the jury an overview of what is to come. They must keep to things that they will subsequently put forward in evidence. The prosecution then brings its witnesses to give evidence-in-chief. This means the prosecution, via questioning, takes the witness through the written statements they made and signed before the trial. These statements have been made available to the other side. After this, the defence will bring forward their witnesses who will give their evidence-in-chief for the defence and then be cross-examined by the prosecutor.

Generally, counsel is not allowed to ask a leading question. That is a question in which the appropriate answer is contained within the question itself. For example, it would not be appropriate to ask, ‘Did you arrive there at 9pm?’ because the question suggests what the answer should be. The question has to be “What time did you arrive there?”

After a witness has given their evidence-in-chief, counsel for the other side will then cross-examine. This is the most skilful and unpredictable part of all legal proceedings. The legal advisers for each side will have a fair idea of what their own witnesses will be saying, because they questioned the witnesses while drawing up their statements. However, this is the first time that counsel are able to directly address the witnesses for the other side. Skilful cross-examiners must be extremely knowledgeable about the subject matter and able to think on their feet. The truthful witness will have little to fear, as they have simply say what they know. A cross-examiner’s task is to cast doubt in a jury’s mind about the testimony. Whilst the experience may be unpleasant, nerve-racking, even intimidating, the truthful witness will have little to fear, as they have simply to say what they know. Those who are untruthful will have much more to be nervous about when facing the skilled advocate.

It is improper for a lawyer to ‘coach’ a witness, that is, to tell a witness what to say. However, it may be appropriate to make suggestions about how to say it. Telling a witness what to wear and to remain in control and speak clearly is entirely proper. To suggest, in any way, that the witness either be economical with the truth, or prevaricate with it, is quite improper.

A difficult situation arises when an accused confesses to their lawyer that they committed the acts in question. Defence counsel can still subject the prosecution witnesses to cross-examination. However, in the presentation of the defence case, defence counsel is not allowed to try to defend the client by saying that the accused did not do the acts in question. The lawyers have an overriding duty not to mislead the court, and this applies even where their client would want them to do so. The prosecution must still prove all elements of their case beyond reasonable doubt.

In many jurisdictions it may be possible for an accused person (the defendant) to opt to have a trial before a judge alone. This option might be taken if the evidence is particularly ghastly – offences against children, for example, where the accused may feel that the photographic evidence of injuries to the child might prejudice a jury.

In a trial, the defendant can call evidence on their behalf if they wish. If they do so, defence counsel will lead the witness by questioning to bring out their evidence in chief. They will then be cross-examined by the prosecutor. With regard to the defendant giving evidence personally there are three possible courses of action. Firstly, they can give sworn evidence and be cross-examined by the prosecutor. Secondly, they have the right to make an unsworn statement to the court, and this is not subject to cross-examination. Thirdly, they can choose to remain silent, and the jury is not allowed to draw any adverse conclusions from this.

The judge’s summing up

After all the evidence is given, the prosecution and the defence lawyers have an opportunity to sum up their cases to the jury. Following these, the judge gives a summing up. This is a very important part of the trial. The jury might be trying to discern what the judge’s views are. The skilful judge will always be careful not to fall into that trap, as the jury must make up its own mind.

‘The facts are for you to determine, ladies and gentlemen of the jury and for you alone. However, you are bound to accept my instructions upon the legal principles which you are to apply in your deliberations. You will now retire to consider your verdict.’

Appeals

If the accused is found guilty then the question of an appeal will arise. The prosecution might appeal on sentence if they consider it to be woefully inadequate, but most appeals are made by the defence lawyer after conviction.  To appeal successfully, the lawyer must argue that the legal principles governing the evidence and procedures were not properly applied. A person can’t appeal just because they are unhappy about the verdict. Possible reasons for an appeal might be that admissible evidence was excluded, or that inadmissible evidence was allowed in. The appeal might claim that the judge acted unfairly in the closing remarks to the jury, or that the judge incorrectly advised the jury of the relevant legal principles. Appeal courts are always mindful that the jury was able to make their own assessment of the witnesses and  arrived at their conclusion beyond reasonable doubt.

In South Australia, the first level of appeal is made to the Court of Criminal Appeal, which is usually made up of three judges. Having three judges gives the court greater authority, and prevents the possibility of an even split in the judgment. Appeal courts are state based and generally appeal court judges are those who at other times will conduct Supreme Court trials. In the United Kingdom, however, judges serving on the Court of Appeal usually do not conduct trials. The cases in this book bring into question the effectiveness of the Australian appellate procedures in this regard, a matter that we will come back to in the final chapter.

If the first level of appeal fails, an appeal can be made to the High Court of Australia. This is the equivalent of the House of Lords in the United Kingdom or the Supreme Court in the United States. At this level there are usually five judges to hear the appeal, but there could be seven if the matter is particularly important. It is recognised that the courts at this level have a significant role to play in developing legal policy, and that they must interpret the law to give clear guidance to the courts below them. These judges work full time in hearing cases at this level, and seldom sit in courts below, although it may be technically possible for them to do so.

At each level of appeal, one has to obtain ‘leave to appeal’ which means to get permission for the appeal to proceed. To get this permission, the lawyers will set out the issues that give rise to the appeal, and the points of law which they involve. At the first level, the permission may be given by the trial judge whose decision is being appealed, or by the appeal court. Appeals to the High Court can only be granted by the High Court. This means that the High Court has exclusive control over the cases that it hears.

If the verdict is overturned on appeal but without an acquittal, then it will be for the prosecution and not for the appeal court judges to determine if there should be a retrial. This will depend on whether or not the prosecutors feel that the case would have reasonable prospects of success if tried again.

After appeals to all levels of the courts have been exhausted, one normally has to live with the final outcome. However, there are two additional opportunities for a further review.

The first is a petition to the governor of the state involved to exercise the prerogative power of mercy. This can be on compassionate grounds, such as when the governor is asked to recommend the immediate release of a person suffering from a terminal illness, without any suggestion that the conviction was faulty. It may also be done where there has been a perceived miscarriage of justice. A prerogative power is really the last remnant of the power of the ‘sovereign’ to do as it pleases without the normal constraints of rules or law. However, it is now the custom or convention for the governor to take the advice of the governor’s ministers – being the ministers of the government in power. This avoids any possible conflict between the sovereign on the one hand and the government on the other. The appropriate minister to advise the governor on these matters is the attorney-general, who will in turn consult with other members of the government and other legal officials. The attorney-general (as the most senior law officer) should make the decision on legal and not political grounds. The other alternative available under the petition procedure is for the governor on the advice of the attorney-general to refer the matter back to the Court of Criminal Appeal and to have it reheard as if it were an appeal.

The final procedure is to set up a Royal Commission. A Royal Commission usually means that a judge or a retired judge is asked by the government to conduct an inquiry. The scope of the Commission will be set out in the formal document establishing it. A Commission can be used to look at any matter, not just convictions. It may be given the power to overturn a conviction, or to recommend to the governor the overturning of a conviction. A problem with Royal Commissions, or other commissions of inquiry for that matter, is that governments are extremely reluctant to set them up because of the cost involved. They are often therefore only achieved as a result of public agitation through the media. The case of Edward Splatt, described at the beginning of this chapter, is one such example. It illustrates not only how hard it is to get a thorough review of some aspects of the criminal justice process, but also how such reviews (when they do occur) can lead to many important and positive outcomes.

Recommendations from the Splatt case 

The Splatt case is important because it was an authoritative source by which proper procedures could be identified. Judge Shannon, the commissioner, was critical of the procedures which had led to the conviction. [4] In his report he adopted the recommendations about how things should be done for the future made by the scientific experts that had been called from the United Kingdom. He said that some of the scientists involved in the original case appeared to have had a dual role. This meant that when analysing what they said and what they did, it was difficult to determine whether they were acting in an investigative role (like the police) or as an objective observer (like a scientist).

Judge Shannon pointed out that this sort of confusion could only happen in a system which was ‘an incorrect one with serious defects’. He said that some of the original evidence which had been given by the expert witnesses involved completely non-scientific statements that were more like police investigatory suggestions.

He also emphasised that a system which did not distinguish between scientific observations and deductions by police in their investigatory capacity, was ‘a defective and therefore a non-acceptable forensic system’ and said that ‘in each instance the dual roles are, in my opinion, incompatible’.

The proper role of expert witnesses

The commissioner said that every scientific operation or observation must be documented on the case-notes and documented in such a manner that they would still be comprehensible perhaps even years later. He said that all major observations must be checked by an independent observer who must indicate, by initialling the notes, that the proper checks had been made. In our view, these basic requirements should apply to forensic scientists and forensic pathologists alike. The commissioner also said that it was not acceptable for the scientific expert witnesses to say that it was no fault of theirs if the court was left with the wrong impression of their evidence because they were not asked the right questions by the lawyers; they had a responsibility to ensure that their evidence was not misused in that way.

The proper role of lawyers

The commissioner also expressed his view on the proper role of lawyers. He said that during the conduct of a trial a serious obligation lies on the lawyers conducting the trial. He said that the critical responsibility is that they should ask such detailed and probing questions of the scientists as are most likely to elicit the proper information.

Some of the cases that we discuss in this book illustrate the results of the legal system of South Australia failing to adopt those sound principles across the range of forensic investigations.

Miscarriages of Justice

People frequently ask how there could possibly be miscarriages of justice if a person can be tried, found guilty and then have some two levels of appeal after that. The simple answer is that there are many issues which, if not corrected at the trial, cannot be picked up on for the appeal. The appeal courts will not see any witnesses; they work only from the transcripts of the trial and the arguments which counsel make in relation to them. They generally are concerned with errors on the part of the judge or jury, and whether all the legal requirements have been satisfied. Appeal courts are not there to reinvestigate the case. They cannot determine that a witness has been untruthful or mistaken. They will not know about any missing links that were not presented at the trial. Concerns like these escape detection in the course of the ordinary appeal process. The Keogh case, which we examine in detail in this book, is a classic example of this sort of dilemma.

So while the appellate system has a job to do, it has become increasingly apparent that it is not up to the task of revealing all the inadequacies which might take place during the modern trial process. This is particularly so where the testimony of expert witnesses has been crucial in bringing a conviction, as seen in the high profile cases mentioned earlier of Lindy Chamberlain, the Birmingham Six and Guildford Four, and in the Porter case in the United States. Porter had spent some seventeen years in prison in Illinois and had come within two days of being executed when his conviction for murder was overturned. It was a class project by journalism students which led to his case being re-examined.

To tackle the inadequacies in the process a mechanism is required that will allow the role of judges, prosecutors, defence counsel, investigators and the witnesses of a trial to be more fully investigated. In the United Kingdom there is a Criminal Cases Review Commission (CCRC) does just that. It investigates cases of alleged miscarriages of justice and refers them back to the Court of Appeal for reconsideration if required. Miscarriages of justice are not as uncommon as one might like to think – in the first year or two some 4000 applications were made to the CCRC. The value and necessity of such a Commission can be seen from the fact that of the first 94 cases so referred, 64 were determined to be miscarriages of justice. In some, information had subsequently emerged about the unreliability of witnesses. In others, it seemed that the police had either been untruthful or dishonest. Some of the cases were up to 50 years old and in four of them, those convicted had been hanged. We will discuss the role and function of the CCRC in more detail later when we explore how miscarriages of justice in South Australia might be dealt with.

Endnotes

[1] The comments are taken from the Royal Commission Report concerning the conviction of Edward Charles Splatt (1984), pp. 43–52.

[2] Re: Request to advise on matter of Paul Nemer and associated issues. Report to the Attorney-General, by Mr Chris Kourakis QC, Solicitor-General of South Australia, 7 April 2004, pp. 4, 29.

[3] Dietrich v. The Queen [1992] HCA 57; (1992) 177 CLR 292 (13 November 1992).

[4] The comments and quotes are taken from the Royal Commission Report concerning the conviction of Edward Charles Splatt (1984), pp. 43–52.

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