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Symposium: Miscarriages of Justice …facilitated by the Centre for Crime Policy and Research Flinders University, and Networked Knowledge Adelaide, 6-8.

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Presentation on theme: "Symposium: Miscarriages of Justice …facilitated by the Centre for Crime Policy and Research Flinders University, and Networked Knowledge Adelaide, 6-8."— Presentation transcript:

1 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

2 Andrew Goldmsith, Strategic Prof of Criminology, Flinders U. 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 Expert on Wrongful Convictions, Constitutional Law and Aboriginal Issues 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

3 Prof Kent Roach, U. of Toronto, Canada Wrongful convictions are: ‘tip of the tip of the tip of the iceberg’ Need to look overall: police, prosecution, lawyers, judges, legal systems Issues include false confessions, Mr Big technique, jailhouse lawyers, competence of counsel, etc Stakeholders: accused, family/friends, lawyers, judges/the state, academics, innocence projects + individuals (pro bono lawyers/journos) Innocence claims by wrongfully convicted are a form of victim’s rights X-country comparisons: Why no bail, pending appeal, in Australia? Chance of legislative reform more exciting in Australia than in Canada. Non-state actors important drivers and change agents

4 Prof Stephen Cordner, Vic. Inst. of Forensic Medicine 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 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 Not now acceptable for a single person (not part of a structure) to be an expert…but that severely limits the numbers available Forensic scientists are kept in dark on what case about, what facts are Justice Maxwell has reinvigorated Practice Directions in Victoria

5 Dr Rachel Dioso-Villa, Griffith U Law & Crim Justice 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 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? Little evidence rigorous scientific base of some forensic experts

6 Bibi Sangha, Sen. Lecturer Flinders U & barrister 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 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 Fears the new law would ‘open up floodgates’ – hasn’t happened

7 Joseph Crowley, barrister and lecturer, Bond U ‘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 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

8 Tom Percy, WA barrister and MOJ freedom winner 1967 Australia’s last hanging, 1964 in WA (but ‘death’ sentence passed there to 1984: he sat next to Brenda Hodge at her sentencing) 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 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

9 Dr Bob Moles, legal author, principal of Networked Knowledge Overall issue is complex system constipation; stubborn resistance of legal hierarchy to change based on proven miscarriages 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” 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

10 Dr David Hamer, Sydney U: Eastman case, ACT 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

11 Lynne Weathered, lecturer & director Innocence Project, Griffith U. 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) Authorities reluctant to help: in one case, had to wait 8 years to be told evidence not held Need DNA testing and other uniform legislation throughout Aust

12 Assoc. Dean, Prof Willem de Lint, criminologist, Flinders U 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

13 Prof Gary Edmond, UNSW and ARC Future Fellow Jury research asks incorrect questions: therefore ‘findings’ wrong: don’t reveal jury abilities or performance re forensic evidence 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

14 Barbara Etter, science grad & lawyer, former Asst. Comm WA Police and pro-bono MOJ case linchpin 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) 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

15 Dr Kris Klugman & Bill Rowlings, Civil Liberties Aust Eve Ash, 7 Dimensions films, ‘Shadow of Doubt’ 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 Campaign needs cross-discipline approach (legal/academic and social sciences/media, aided by psychology communication techniques and tools) Achievable targets, which can be measured, for Canada and Australia

16 How can we improve what MOJ will be like in 2024? AIM: reduce MoJ by 20% in Australia and Canada in a decade 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

17 Symposium attendees are the core MoJ network MoJ Network is us + victims ResearchLawyersMedia/etc Legal systems Change agents/stu dents

18 Who does what? Research: o Existing informationLegal/academic + social science/media panels o Conceive/commission studiesAustralia: Bob Moles, Canada: Kent Roach Marketing/communications planAIDWYC in Toronto? o Create base materialsCanada and Australia o Run campaign 2016-2018Us (the Network) +volunteer Change Agents Next Symposium Adelaide Nov 2015 ? (with Criminology conf) Budget: None needed until late-2015 Contact information: o Canada: AIDWYC & Kent RoachTo be confirmed o Australia: Bob Moles, Networked Knowledge

19 Looking Ahead Milestone 1: finalise research program - by June 2015 Finalise campaign plan - by November 2015 Start to implement campaign: - from January 2016 First success measurement - in 2018 Modify and expand campaign - in 2019 Target for major change - by 2024

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