Tuesday, December 29, 2020

POST: Australia: A year in review: Author/Blogger Andrew L. Urban casts an eye over 2020, and sees: "Tunnel-vision-blighted police investigations, junk science as evidence, prosecutors ‘impermissibly straining for a conviction’ (as Justice Fullerton has put it) and judges failing to adhere to the rule of law - all causes of blunders resulting in wrongful convictions and failed appeals."

PUBLISHER'S NOTE:  Over the years, Australia has provided some of the most fascinating wrongful convictions loaded with forensic issues relevant to this Blog - and Andrew Urban has done a masterful job of guiding us through them. While the prosecutions he exposes in  this year-ender  are notorious for their blunders, my interest is not in putting down the state of criminal justice in Australia and those that operate within it.  It is rather to make the point that justice has no boundaries, to support those who have been wrongfully accused and convicted, and to put pressure on the criminal justice authorities  from abroad  to remedy the situation - just as I have done with other jurisdictions such as Texas, Louisiana, Alabama and Missouri, and from time time to time,  and far too often Ontario, which happens to be my own turf. So I'm grateful to Andrew Urban for bringing  these Australian cases to the rest of the world in such an intelligent, thoughtful  manner. They are well worth our attention.

Harold Levy: Publisher: The Charles Smith Blog.


POST: "A year of blunders – 2020 in review," by Andrew L. Urban, published on his Blog 'The Wrongful Convictions Report' on December 20, 2020.

PREFACE:  "Tunnel-vision-blighted police investigations, junk science as evidence, prosecutors ‘impermissibly straining for a conviction’ (as Justice Fullerton has put it) and judges failing to adhere to the rule of law are all causes of blunders resulting in wrongful convictions and failed appeals. We reported on several of such blunders during the year; here is our Year in Review. "

GIST: "Among the many stories we publish (73 in 2020), some are especially pertinent as they demonstrate the inherent flaws of a justice system in need of reform – as well as highlighting the needless suffering of the wrongfully convicted. Also, Former High Court judge Michael Kirby reminds readers that Australia lags behind the rest of the Anglosphere in failing to establish a Criminal Cases Review Commission, while former senior detective and author Colin McLaren declares his loss of faith in the justice system.

From the most notorious to the most obscure cases, our stories during the year have elicited many comments from our readers – you are welcome to add yours.

January 7, 2020
Missed clues in Sue Neill-Fraser’s Statutory Declaration
Eleven years ago this month, at 12.10pm on Friday, January 28, 2009, a day after her partner Bob Chappell had disappeared from their yacht, Four Winds, Sue Neill-Fraser began making a Statutory Declaration at her Allison Street home in Hobart. It contained information – clues – that would have been useful to the police investigation, but were ignored.

new appeal in May 2020 against her 2010 conviction for the 2009 murder of her partner Bob Chappell should disqualify themselves and be replaced by interstate judges, says a former State and Federal court judge thoroughly familiar with the case. (The appeal is now scheduled to begin March 1, 2021.)

April 7, 2020
Pell convictions not supported by evidence – now quashed
In its unanimous 7 – 0 decision, the High Court concludes its summary of the decision in the George Pell appeal with an abundance of restraint: “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.

May 1, 2020
Man sues over false rape charges by his ex
The Australian’s Deborah Cornwall reports exclusively today: A Sydney man is suing his former wife, the NSW Police Force and a crown prosecutor for malicious prosecution and damages, accusing them of causing him “severe mental anguish” after persisting with false rape charges against him by his former wife.

May 24, 2020
Another CCRC established … but still not in Australia
A new, independent body that will have the power to send potential miscarriages of justice back to an appeal court is on track to begin receiving applications from July 1, 2020 – but not in Australia. It’s the New Zealand Criminal Cases Review Commission (NZCCRC), leaving Australia behind in dealing with miscarriages of justice, laments former High Court judge Michael Kirby AC CMG.

June 13, 2020
A cancerous phenomenon
One of Australia’s most respected former detectives, COLIN McLAREN, has broken rank from police circles, to speak out against a judicial system he no longer believes in. Indeed, he suffered threats of arrest because he dared to find glaring faults in a past murder case, forcing him to leave Australia, permanently. He will reside overseas until Australia installs a criminal cases review commission to tackle wrongful convictions. He filed this post as he left.

June 19, 2020
Robert Xie historic appeal to begin
Chief Justice of NSW Tom Bathurst QC will be one of the judges (along with Justices Hulme and Beech-Jones) to hear the appeal by Lian Bin (Robert) Xie against his five 2017 murder convictions, starting on Monday, June 22, 2020, in the spacious Banco Court of the Law Courts Building in Queens Square, Sydney. The convictions, we believe, are collectively unsafe; see below. Whatever the outcome of the appeal, it is destined to be a historic legal milestone – and we will be reporting on the proceedings.

July 21, 2020
Bradley Murdoch – how DNA may have misled the jury
When juries in a circumstantial case are told of DNA, they assume that it’s a solid piece of evidence, unquestionable. The prosecution relies on this assumption and tells its story as if every DNA sample was like a brick. The case of Bradley Murdoch’s conviction for the murder of Peter Falconio is a strong example of why this is not so; even DNA can lead to unsafe convictions, as revealed in Channel 7’s investigative documentary mini series, Murder in the Outback, which concluded on Sunday, July 19, 2020.

September 7, 2020
Incompetent, humiliated criminal system fails again
In just 60 Minutes last Sunday (6/9/20), Channel 9 has shown how the Cooks, a circus family from the Blue Mountains, were persecuted by a preposterous police prosecution of a case that not only lacked evidence of any kind, but defied the most basic tests of common sense. Sadly, it is not the only humiliating failure of the criminal justice system in Australia.

September 28, 2020
Letter from the rip
This private letter is from a man who has led an exemplary life, but when accused of historical sexual molestation by a vengeful woman, then a youngster, years after the alleged events, he was tried and convicted, his life ruined. He maintains his innocence (the accuser’s mother believes & supports him) and a lawyer has prepared pro bono a 70 page analysis of his case that shows how the system wrongly convicted him. He has given me permission to publish the letter.

October 12, 2020
Dr Colin Manock and the Baby Deaths – Ch 9 Oct 14, 2020
This Wednesday 14 October, at 8.40pm Channel 9 will broadcast ‘Bodies of Evidence’ as part of their Australian Crime Series. It will focus on the appalling failures in relation to the work of Dr Colin Manock, former chief forensic pathologist in South Australia for nearly 30 years.

October 15, 2020
Road to Damnation follows the science to a wrongful conviction
In his important new book, Road to Damnation, Chris Brook takes the reader on a gripping journey to the darkest reaches of human experience – the drowning of three children – when it intersects with the law. Brook places the case of Robert Farquharson – their father – at the interface between law, science, society and psychology.

November 23, 2020
Scott free
After 13 years in jail, 45 year old Scott Austic has finally regained his freedom and his official innocence last week, when a WA jury acquitted him after two hours of deliberations. As we reported in May this year, Austic had lost his first appeal against his conviction for the murder of his pregnant girlfriend, Stacey Thorne, 35, who was 22 weeks pregnant when she was stabbed 21 times at her Boddington home, about 120 kilometres south-east of Perth.

December 17, 2020
New Year hopes for old injustices
Should we call them mis-convicted murderers, perhaps, those poor unfortunate souls who have suffered the catastrophe of a wrongful conviction? As we prepare to leave 2020 behind and look across time into 2021, we must hope along with them that the criminal justice system will correct those wrongful convictions, in many cases far too long after the verdict was delivered (37 years, in the case of Derek Bromley).

Closing note: 
Barristers and judges in the criminal justice system cannot be sued for negligence, thus are sheltered from real-world accountability and penalties.

The most recent assertion of lawyers’ immunity – largely on the ground that legal actions must have some finality – was D’Orta-Ekenaike v Victoria Legal Aid (Australian High Court, March 10, 2005).

But as Graham Zellick, CBE, QC, Chair of the Criminal Cases Review Commission in the UK has said: “There is no principle of finality. If it is thought that a mistake may have been made, the public interest demands that it be put right … the principle of finality has no place in the criminal law, not in our system.”

Those in favour in the 2005 High Court assertion were Murray Gleeson CJ and Michael McHugh, Bill Gummow, Ken Hayne, Dyson Hayden, and Ian Callinan JJ. When the lone dissenter, Justice Michael Kirby, shortly had an emergency heart bypass operation, legal magazine Justinian, commented: ‘It’s sad to see that the only judge on the court with a heart is now having trouble with it."

The entire post can be read at:


PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;
FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
FINAL, FINAL WORD (FOR NOW!): "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they’ve exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;