Symposium: Miscarriages of Justice
…facilitated by the Centre for Crime Policy and
Research
Flinders University,
and
Networked Knowledge
Adelaide, 6-8 Nov 2014
Photos: Gordon Wood, Henry Keogh and daughter Alexis, Sue Neill-Fraser: one out of jail, two to go
Andrew Goldmsith, Strategic Prof of Criminology,
Flinders U.
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Welcomed participants to important national symposium
Fortunate to have the Canadian and international expertise of
Prof Kent Roach, Prichard Wilson Chair in Law & Public Policy at
University of Toronto
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Expert on Wrongful Convictions, Constitutional Law and Aboriginal
Issues
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Wide variety of people present, drawn from throughout Australia
Hope symposium can make major contribution to improving the
justice system and the Rule of Law in Australia
Prof Stephen Cordner, Vic. Inst. of Forensic Medicine
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Such symposiums need to be regular around Australia
MOJ cases: ‘Staggering numbers in US; ‘frightening’ in UK
… and we don’t have any numbers for Australia
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Lawyers can disagree in court, why can’t forensic scientists disagree?
When the High Court complained about a particular forensic
pathologist, there was no legal/judicial/profession system to respond
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Not now acceptable for a single person (not part of a structure) to be an
expert…but that severely limits the numbers available
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Forensic scientists are kept in dark on what case about, what facts are
Justice Maxwell has reinvigorated Practice Directions in Victoria
Dr Rachel Dioso-Villa, Griffith U Law & Crim Justice
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Victims suffer long-term effects, both exonerees & families; unique
In prison, innocent person can’t admit guilt, so no parole benefits
Wrongfully convicted spend 2 ½ months to 15 years in prison
We need to utilise systems theory: that is to analyse the legal system
the same way aviation mistakes, medical errors are treated
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Usually no single error causes the fatal outcome
In the US forensic sciences were ‘badly fragmented, needed major
overhaul’, Nat Acad Science USA 2009 found. What of Australia?
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Little evidence rigorous scientific base of some forensic experts
Bibi Sangha, Sen. Lecturer Flinders U & barrister
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MOJ cases are a breach of internatonal HR obligations, and ICCPR
New statutory right of appeal in South Australia, 5 May 2013,
introduced to balance new double jeopardy provisions
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UK uses “unsafe” test, not “substantial” or “significant”
In the new SA law ‘fresh and compelling’ evidence is a very high bar,
higher than original trial and first appeal
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Fears the new law would ‘open up floodgates’ – hasn’t happened
Joseph Crowley, barrister and lecturer, Bond U
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‘Justice’ values the decision of juries…perhaps too much
Rules of court are a major problem
Definitions change: in 1922, early High Court appeal rules were
based on civil law, not criminal law
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There’s an enormous imbalance…rules should favour appellant
High Court’s decision in 1974 was high point
…but Keane J in Qld has laid down a new definition in May 09
The ‘Hydra’s Head’ of confusion has grown back, because the
definition has now crept from common law into statute law in SA
Tom Percy, WA barrister and MOJ freedom winner
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1967 Australia’s last hanging, 1964 in WA (but ‘death’ sentence
passed there to 1984: he sat next to Brenda Hodge at her
sentencing)
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This changed him from pro- to anti-hanging
Estelle Blackburn came to him, after researching Button case 6 years
She had met John Button’s brother at dance…extreme serendipity
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Key player was judge David Malcolm, later CJ (died Oct 2014)
Full and complete disclosure by prosecutors is obligatory: but there
are no effective personal sanctions (profession or punitary
penalties): options should include imprisonment
Dr Bob Moles, legal author, principal of
Networked Knowledge
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Overall issue is complex system constipation; stubborn resistance of
legal hierarchy to change based on proven miscarriages
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The rule of law is not fairly or properly applied
In SA, the Chief Forensic Pathologist appointed in 1968 Colin
Manock signed 10,000 autopsies…“not qualified to sign one”
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No mechanism available to permit correction of errors
Govts say citizens are entitled to justice, but govts will not deliver it
Serious systemic legal system failures over a long time
Australia need major judicial inquiry, or Crim Cases Review Comm
Dr David Hamer, Sydney U: Eastman case, ACT
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David Eastman: circumstantial case, cost $20m over nearly 20 years
Forensic expert’s gun residue evidence extremely discredited
Police/DPP non-disclosure of his unreliability, known at time
Inquiry found police misconduct ‘unfair & unlawful’, tunnel vision
Ineffective defence due partly to Eastman mental condition
Eyewitness misidentification also, mafia hit theory discounted
Institutional barriers: jury/appeal court got it wrong
Correcting MOJ cases is more difficult after appeal, as defendants
lack resources…need a Crim Cases Review Comm
Lynne Weathered, lecturer & director Innocence Project,
Griffith U.
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Learning platform, service to wrongfully convicted as last resort
Students discover the realities of legal practice for themselves
In US, 321 DNA exonerations (representing 4337 years in prison)
1416 cases of non-DNA exoneration
In non-DNA cases, 56% wrongful convictions based on perjury
(rises to 81% in child sexual abuse cases)
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Authorities reluctant to help: in one case, had to wait 8 years to be
told evidence not held
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Need DNA testing and other uniform legislation throughout Aust
Assoc. Dean, Prof Willem de Lint, criminologist,
Flinders U
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A-NZ Criminology conference to be held Adelaide late-2015
May be useful to focus on Miscarriages of Justice
Gatherings of MOJ group needs to be more regular
Prof Gary Edmond, UNSW and ARC Future Fellow
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Jury research asks incorrect questions: therefore ‘findings’ wrong:
don’t reveal jury abilities or performance re forensic evidence
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Prosecutors bear main responsibility: fair AND understandable
Some forensic evidence non-susceptible to rational evaluation
Validation studies particularly required; measure error rates
Forensic ‘Standards’ may not be very robust (gait evidence doubtful)
Insidious biases, may be subconscious
Problems partly from “hubris and isolation of judges and lawyers”
DNA likelihood: dwarfed by 1/100 to 1000 real-world error chance
We’re setting up courts, judges, juries to FAIL over forensics
Barbara Etter, science grad & lawyer, former Asst. Comm
WA Police and pro-bono MOJ case linchpin
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Sue Neill-Fraser case: legal PLUS ‘people power’ & media needed
Highly circumstantial: no body, no weapon, no confessions
Claim of prior kill bid: influenced police investigation
Subsequent on-yacht DNA match with young woman
Like Chamberlain, forensic errors: preservation, tests, presentations in
court, ‘winching reconstructions’ (Chamberlain re-run)
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DPP claimed victim bashed with wrench/screwdriver
New DNA expert evidence: but had to go via merry-go-around
Lessons NOT learned from Chamberlain: Nat Inst FS role/resourcing
List of strategies for forensic science area, and MOJ needs
Dr Kris Klugman & Bill Rowlings, Civil Liberties Aust
Eve Ash, 7 Dimensions films, ‘Shadow of Doubt’
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Need for campaign (Aust and Canada) so situation not the same in 10 years
Individual MOJ cases need widespread support: family, community & legal
Use max possible media streams: print, radio, TV, film, video, songs, plays
‘Colour and movement’ enliven a usually ‘dry’ subject
National MOJ campaign will require similar outlook: taut, hard facts; strong,
simple visuals; catchy video & music & materials support
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Campaign needs cross-discipline approach (legal/academic and social
sciences/media, aided by psychology communication techniques and tools)
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Achievable targets, which can be measured, for Canada and Australia
How can we improve what
MOJ will be like in 2024?
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AIM: reduce MoJ by 20% in
Australia and Canada in a decade
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Focus on 3 States/Provinces to start
Overview:
Measure current rate of MoJ
Create awareness campaign
Implement x 4 initiatives a year
Measure success at 3-5-10 years
Symposium attendees are the core MoJ network
Research
Change
agents/stu
dents
MoJ
Lawyers
Network is
us + victims
Legal
systems
Media/etc
Who does what?
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Research:
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Existing information
Legal/academic + social science/media
panels
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Conceive/commission studies
Marketing/communications plan
Australia: Bob Moles, Canada: Kent Roach
AIDWYC in Toronto?
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Create base materials
Canada and Australia
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Run campaign 2016-2018
Us (the Network) +volunteer Change Agents
Next Symposium
Adelaide Nov 2015 ? (with Criminology conf)
Budget:
None needed until late-2015
Contact information:
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Canada: AIDWYC & Kent Roach To be confirmed
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Australia:
Bob Moles, Networked Knowledge
Looking Ahead
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Milestone 1: finalise research program
- by June 2015
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Finalise campaign plan
- by November 2015
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Start to implement campaign:
- from January 2016
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First success measurement
- in 2018
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Modify and expand campaign
- in 2019
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Target for major change
- by 2024
Download

summary of symposium and issues