"I HAD BEEN IN PRISON BEFORE AND KNEW WHAT TO EXPECT. I WAS NOW HURRIED INTO THE PORT ADELAIDE COURTROOM AND FORMALLY CHARGED WITH MURDER, BEFORE A JUSTICE OF THE PEACE. FROM THE COURTROOM, I WAS THEN SUBJECTED TO THE USUAL ROUTINE, PHOTOGRAPHED, SEARCHED AND FINGERPRINTED. ANYBODY WHO HAS HAD THE MISFORTUNE OF BEING LOCKED UP IN THE CELLS AT PORT ADELAIDE WILL KNOW WHAT A FILTHY, STINKING PLACE IT IS . . . THE CELLS WERE UNFIT FOR HUMANS TO BE KEPT IN. THE ANIMAL WELFARE LOOKED AFTER DOGS IN A MUCH BETTER, HEALTHIER ENVIRONMENT THAT THOSE CELLS.
A YOUNG CONSTABLE OPENED THE CELL DOOR AND TOOK ME INTO THE SMALL FINGERPRINTING ROOM. THAT MOMENT I COULD EASILY HAVE ESCAPED FROM CUSTODY. I WAS NOT HANDCUFFED AND HE HAD LEFT THE STEEL BARRIER GATE FROM THE OUTSIDE YARD TO THE CELLS AREA OPEN.
BY NOW I WAS FEELING WEAK; I HAD ONLY JUST BEEN RELEASED FROM HOSPITAL. I HAD NOTHING TO EAT OR DRINK AND THE ORDEAL OF THE INTERROGATION WAS STARTING TO AFFECT ME. I TRIED TO KID MYSELF THIS WASN’T HAPPENING, AND EVERYTHING WOULD BE OKAY . . . I PACED UP AND DOWN THE CELL LIKE A CAGED TIGER, WONDERING WHAT WAS THE NEXT MOVE.
3.30 P.M. I WAS BROUGHT OUT OF THE CELLS AND THERE WAS THORSEN AND MCCALL GLOATING OVER THEIR VICTORY. MCCALL SAID, ‘WE WILL TRANSPORT YOU TO ADELAIDE GAOL NOW.’
GOING ACROSS BIRKENHEAD BRIDGE I LOOKED AT THE RIVER. THINGS LOOK SO GOOD TO YOU WHEN YOUR FREEDOM IS SUDDENLY SNATCHED AWAY FROM UNDERNEATH YOU. I CHECKED THE BACK DOORS OF THE CAR. THEY WEREN’T LOCKED. THORSEN WAS SITTING IN THE FRONT SEAT ALONGSIDE OF MCCALL WITH HIS ARM RESTING ON THE BACK OF THE SEAT TRYING TO MAKE CONVERSATION WITH ME. ‘THE DOCTOR HAS ADVISED ME THAT YOU WOULD BE WELL ENOUGH TO STAY IN CUSTODY AS LONG AS YOU TAKE YOUR MEDICATION,’ HE SAID.
‘MY MEDICATION IS STILL AT HOME. WOULD IT BE POSSIBLE TO CALL IN AND PICK IT UP?’ I WAS HOPING FOR A LAST CHANCE TO SEE MY WIFE BEFORE BEING TRANSPORTED TO ADELAIDE GAOL.
‘I’VE ALREADY PICKED UP YOUR MEDICATION,’ HE REPLIED. ‘LOOKS LIKE WE’VE GOT YOU THIS TIME, SPLATTY.’
I LOOKED THORSEN STRAIGHT IN THE EYE, ‘YOU WON’T MAKE IT STICK.’
‘WE’LL MAKE IT THAT WAY,’ THORSEN SAID.
ARRIVING AT ADELAIDE GAOL . . . I HAD BEEN THERE BEFORE AND KNEW WHAT TO EXPECT. I STILL KNEW ALL THE FACES OF THE PRISON CHIEFS AND SOME SCREWS. I SAID NOTHING. YOU CAN’T SAY ANYTHING TO ANYBODY THE MOMENT YOU STEP THROUGH THOSE GATES. YOUR ENTIRE WORLD CHANGES . . . I WAS THEN TAKEN TO 3-YARD TO CHANGE INTO PRISON CLOTHES.
ODDLY ENOUGH I WAS DRESSED IN THE SAME TROUSERS, SHIRT AND SHOES I HAD WORN ON THE NIGHT OF THE MURDER. GENERAL PRACTICE FOR NEW PRISONERS IS TO STRIP OFF NAKED AND PLACE ALL YOUR CLOTHING, BOOTS, UNDIES, THE LOT, INTO A LARGE GARBAGE BAG. THEN THEY ARE FUMIGATED AND ON YOUR NEXT APPEARANCE IN COURT THERE ARE YOUR STREET CLOTHES STILL IN THE BAG AS YOU PLACED THEM, NEITHER FOLDED NOR PRESSED AND NOTHING IS WASHED. WHEN YOU APPEAR IN COURT YOU LOOK THE PART THEY INTEND YOU TO LOOK—UNTIDY, SCRUFFY, A PROPER VILLAIN.
IT WAS GETTING CLOSE TO LOCKUP TIME. I JUST HAD TIME TO BE ESCORTED TO 4-YARD WHERE AS A REMAND PRISONER I WAS ALLOCATED. THE YARD WAS PRETTY FULL AND MOST PRISONERS WERE WALKING BACK AND FORTH IN THE YARD EXERCISING BEFORE MEALTIME AND LOCK UP. NONE OF THE PRISONERS SPOKE TO ME AND I CERTAINLY WASN’T IN THE MOOD TO SPEAK TO ANYBODY. I DID A COUPLE OF LAPS OF HONOUR AROUND THE YARD BEFORE THE SCREWS STARTED YELLING ‘FALL IN’.
I WAS A NEW ARRIVAL AND BY TOMORROW THEY WOULD ALL KNOW WHO I WAS AND WHAT I WAS CHARGED WITH. IF IT WASN’T ON THE RADIO OR IN THE PAPERS, THE SCREWS GENERALLY GAVE ALL CRIMS IN THE YARDS THE INFORMATION ON ANY PRISONER WHETHER IT WAS SUPPRESSED OR NOT. THAT’S WHY CHILD MOLESTERS GET BASHED.
I WAS AT LAST LOCKED AWAY AND NOTHING ON GOD’S EARTH COULD BE DONE ABOUT IT. SOMEHOW I HAD TO SETTLE DOWN AND PREPARE MY DEFENCE. AT LEAST I WAS ALLOWED A TRIAL TO DEFEND MYSELF. I WAS NOW STARTING TO TALK TO MYSELF.
I TURNED THE SMALL RADIO ON EMBEDDED IN THE CELL WALL. IT ONLY PLAYED ONE STATION BUT AT LEAST IT DROWNED OUT THE SUDDEN QUIETNESS OF THE CELL.
I LOOKED DOWN AT THE MEAL ON THE PLATE. I THINK IT WAS SAUSAGES—THE SCREW’S FAVOURITE. THEY ALWAYS MANAGED TO GRAB THEMSELVES A HANDFUL WHILE IT WAS BEING DISHED OUT TO THE PRISONERS.
UNDER THE STOOL WAS THE USUAL PLASTIC WATER CONTAINER USED AT ADELAIDE GAOL TO HOLD THE PRISONER’S DRINKING WATER. THE PLASTIC CONTAINER WAS FILTHY ON THE INSIDE; IT CONTAINED BROWN SLUDGE ON THE BOTTOM, SOMETHING ONE WOULD EXPECT TO SEE IN THE TOILET BOWL IN PRISON . . . THE PLASTIC MUG HOLDING THE TEA WAS ALSO FILTHY AND BLACK INSIDE. MANY CRIMS NEVER WASHED THEIR EATING UTENSILS; THEY JUST WIPED THEM WITH TOILET PAPER BEFORE REUSING THEM.
MANY CRIMS EVEN DODGED HAVING A DAILY SHOWER AND SOME WENT FOR WEEKS BEFORE THEY WERE FORCIBLY THROWN UNDER THE SHOWER. OUTBREAKS OF LICE WERE A COMMON OCCURRENCE.
TIME IN THE CELLS PASSED VERY SLOWLY AND IF YOU DON’T READ OR CAN’T ENTERTAIN YOURSELF, IT BECOMES BORING.
THE 5 P.M. NEWS CAME THROUGH LOUD AND CLEAR: ‘A SPRAY PAINTER WAS ARRESTED IN THE AFTERNOON AND CHARGED WITH THE BRUTAL SLAYING OF MRS SIMPER.’ MY NAME, OCCUPATION AND ADDRESS WERE GIVEN—NO SUPPRESSION ORDERS ON THE MURDER. FULL DETAILS OF THE GRUESOME MURDER FOLLOWED. I THOUGHT, CHRIST, HOW WOULD MY WIFE TAKE IT? SHE WOULD ALSO BECOME A PRISONER IN HER OWN HOME. THE NEIGHBOURS WOULD NOW BE TREATING HER LIKE A LEPER, BECAUSE IN THEIR EYES I WOULD BE GUILTY ALTHOUGH AS YET IT WASN’T PROVEN, TILL I WAS SENTENCED BY THE COURT.
THE PRISONERS IN REMAND YARDS WOULD KNOW WHO THE NEW ARRIVAL WAS AND WHAT HE HAD BEEN CHARGED WITH. THEY WENT OUT OF THEIR WAY TO MAKE IT DIFFICULT FOR CRIMS CHARGED WITH CHILD MOLESTING OR MURDERING OLD PEOPLE, JUDGING THEM GUILTY UNTIL PROVEN INNOCENT.
SOME OF THE YOUNGER PRISONERS WHO HUNG AROUND IN SMALL GROUPS IN THE YARD MADE IT TOUGH FOR CRIMS THAT APPEARED WEAK. THEY STARTED THEIR CATCALLING AND ABUSE AT NIGHTFALL WHEN PRISONERS WERE LOCKED AWAY AND COULD NO LONGER DEFEND THEMSELVES.
IT DIDN’T TAKE LONG FOR THE FEW BRAVE ARSEHOLES TO START THEIR CATCALLING. ONE KEPT UP A CHANT OF ‘POOR MRS SIMPER! POOR MRS SIMPER!’ AND ‘HEY, SPLATTY, KILLER! WE’LL GET YOU TOMORROW IN THE YARDS.’ THIS WENT ON FOR HOURS AND SEVERAL TIMES THE GUARDS SCREAMED FOR SILENCE BUT WITH NO EFFECT. A TOP CRIM IN THE YARDS FINALLY INTERVENED AND ORDERED THEM TO SHUT UP OR TO LOOK OUT TOMORROW.
EDWARD CHARLES SPLATT; FROM CURRENTLY UNPUBLISHED BOOK TENTATIVELY TITLED "FORENSIC FAILURES" BY TOM MANN; I AM GRATEFUL TO DR. ROBERT MOLES FOR MAKING A MANUSCRIPT OF THIS IMPORTANT WORK AVAILABLE TO THE READERS OF THIS BLOG;-------------------------------------------------------------------------------
DR (JAMES) ROBERTSON,(DIRECTOR OF FORENSIC SERVICES FOR THE AUSTRALIAN FEDERAL POLICE) IN HIS PANEL ON FORENSIC ISSUES, TESTIFIED (BEFORE THE KAUFMAN COMMISSION INTO THE WRONGFUL CONVICTION OF GUY PAUL MORIN) THAT A TUNNEL VISION APPROACH BY POLICE IN A CASE IN SOUTH AUSTRALIA HAD RESULTED IN THE WRONGFUL CONVICTION OF A MAN ACCUSED OF MURDERING A WOMAN IN 1979 BECAUSE THEY HAD NOT LOOKED HARD ENOUGH AT ALTERNATIVE SUSPECTS. EDWARD SPLATT HAD BEEN CONVICTED ON FORENSIC EVIDENCE WHICH WAS TRACE IN NATURE.
THE VERDICT WAS OVERTURNED AND THE SUBSEQUENT ROYAL COMMISSION IN THE EARLY 1980S LED TO THE REMODELLING OF FORENSIC SERVICES IN THAT STATE."
FROM "PLATYPUS": THE MAGAZINE OF THE AUSTRALIAN FEDERAL POLICE;-------------------------------------------------------------------------------
A group of senior Australian police officers and forensic experts came to Canada in 1997 to tell the Kaufman Inquiry into the wrongful conviction of Guy Paul Morin what they had learned from notorious Australian wrongful convictions - including the murder conviction of Edward Charles Splatt;
It is fascinating to see the Australians' take on the Morin case - and to consider the lessons which were supposed to have been learned from the Morin experience in the context of Dr. Charles Smith's rampage over Ontario's criminal justice system.
(The Australian Federal Police is Australia's international law enforcement and policing representative, and the Government's chief source of advice on policing issues.)
"Southern Region General Manager, Nigel Hadgkiss, and the AFP’s Director of Forensic Services, Dr James Robertson, were asked to contribute to a Royal Commission in Canada in 1997 into the wrongful conviction of a man accused of murdering a young girl in 1984," the article in "Platypus", the organization's magazine, begins.
"The prosecution’s case was almost purely circumstantial, based on hair and fibre evidence and the testimony of two in-custody informants," it continues.
"The conviction was eventually overturned when new methods of DNA testing were used before an Appeal in 1995 and further details gradually emerged.
Experts from around the world in forensic science and in the administration of criminal justice contributed to the subsequent inquiry established in a bid to unravel the miscarriage of justice and identify any systemic issues.
The Commission’s findings were the catalyst for major reformation of forensic services in the Ontario justice system.
Mr Hadgkiss has served on three Royal Commissions in Australia and has had wide experience in the investigation of allegations of serious misconduct against public officials as well as in the investigation of systemic issues.
Late last year, Mr Hadgkiss was invited to York University in Toronto as a Visiting Fellow between January and April this year.
He is working on a program being developed by the university’s Osgoode Hall Law School and the Royal Canadian Mounted Police to design and administer an expert witness course which will prepare a select group of police officers to appear in court.
He also will contribute to a conference on police corruption issues.
Dr Robertson has authored more than 60 papers and edited four books on forensic science, is the immediate past chair of the Senior Managers of Australian and New Zealand Forensic Laboratories and was an expert witness at two other major Royal Commissions.
He is also an adjunct Professor at the University of Technology, Sydney.
The findings of the Commission were brought down last year and John Walsh from Southern Region retraces the case which attracted strong media attention in Canada (under the heading "The Guy Paul Morin case: A Crown attorney's worst nightmare.")
"Sometime between 3.50 and 4.30pm on October 3, 1984, nine-year-old Christine Jessop went missing after school in the small town of Queensville, about 60km north of Toronto, Ontario.
Despite some reported sightings of her later that day and searches carried out in Queensville in the ensuing weeks, the York Regional Police were unable to find any evidence of Christine’s whereabouts.
Almost three months later on New Year’s Eve, residents of Durham, about 56km east of Queensville, found Christine’s decomposing body.
Because her body was found outside the York jurisdiction, the investigation was handed over to Durham Regional Police.
The next day, positive identification was made through dental records and the subsequent autopsy found that death had occurred about three months earlier.
There were multiple stab wounds to the chest, but because of the state of the body, initial examination did not determine whether she had been sexually assaulted.
Semen was later found on her underwear but forensic experts weren’t able to take the investigation any further at that time, other than to conclude that she had been sexually assaulted.
By mid-February 1985, the investigation by the Durham Regional Police began to focus on Guy Paul Morin, a 25-year-old neighbour of the Jessop family.
Morin, who had no criminal record, lived with his mother and father and worked as a finishing sander north of Toronto. He was also a bee-keeper and a musician.
In the early evening of April 22 that year, Morin was arrested, and following a Preliminary Inquiry held in June 1985, he was committed on a charge of first degree murder.
The trial began in London, Ontario about 250km from Toronto, on January 7, 1986, and on February 7 that year, Morin was acquitted after approximately 13 hours of deliberation by the jury.
In March, 1986, the Ontario Attorney-General appealed to the Court of Appeal for Ontario, based on an incorrect direction and instruction to the jury by the trial judge.
The Crown’s appeal was successful in June 1987 and a new trial was ordered.
Morin appealed to the Supreme Court of Canada but his application was dismissed in November 1988, and the order for a new trial was affirmed.
Morin’s second trial began on November 13, 1991 following a series of pre-trial motions.
Just before the trial, a further autopsy revealed inadequacies in the original autopsy.
The trial continued until July 1992, and on July 30 after the jury had deliberated for seven days, Morin was convicted of first degree murder and detained in custody.
Soon after the verdict, Morin filed a Notice with the Court of Appeal for Ontario. An application for bail was granted in February 1993, and an amended Notice of Appeal, citing 181 grounds, was filed in March 1994.
DNA testing of the semen sample on Christine Jessop’s underwear, using a sophisticated test not previously available, was undertaken in January 1995.
Testing showed that the semen was not Morin’s.
His Appeal was allowed, the conviction set aside, and a verdict of acquittal entered.
By Order of the Governor of Ontario, the Commission of Proceedings (Royal Commission) Involving Guy Paul Morin was established in June 1996. Public hearings began in February, 1997.
In his introduction to the report on the Royal Commission, which was handed down last year, the Commissioner, Justice Fred Kaufman, said: "On July 30, 1992, an innocent person was convicted of a heinous crime . . . the criminal proceedings against Guy Paul Morin represent a tragedy not only for Mr Morin and his family, but also for the community at large: the system failed him — a system for which we, the community, must bear responsibility. An innocent man was arrested, stigmatised, imprisoned and convicted . . . the reasons for the failure are set out in the pages which follow, and so are suggestions for change, designed to make similar failures less likely."
By the time the findings were delivered, remodelling of forensic services in the Ontario criminal justice system, in line with the recommendations of the report, had begun, drawing on expertise presented to the Commission by professionals from around the world in the administration of criminal justice and forensic science and medicine.
The Commission’s three main roles were:
Investigative: Why did the investigation into the death of Christine Jessop and the proceedings which followed result in the arrest and conviction of an innocent person?
Advisory: The principal focus of the Commission’s mandate was to make recommendations for change intended to prevent future miscarriage of justice.
In doing so, certain ‘systemic’ issues (those that transcended this particular case and went generally to the administration of criminal justice in Ontario) were identified.
Educational: It was hoped that the public nature of the inquiry might serve to educate members of the community as to the administration of criminal justice generally and as to the criminal proceedings against Guy Paul Morin in particular.
The Commission’s public hearings were held in seven phases, two of which looked at the investigations of the York and Durham Regional Police Services, while one phase examined issues arising from the two Morin trials.
The phases also included examination of issues arising from:
0: ‘In custody’ statements from informants incarcerated in a Canadian jail with Morin before his first trial, which were instrumental in convicting him at his second trial.
0: The forensic evidence tendered at both trials.
One of the parties granted standing at the Commission was the Association in Defence of the Wrongly Convicted. AIDWYC was formed in part because of the Morin conviction. Morin’s post-conviction lawyer, James Lockyer, is a prominent member of the organisation.
Associate Professor at Osgoode Hall Law School, York University, Ontario, Dianne Martin, compiled a case study for AIDWYC with assistance from others in Canada, the UK, and the USA on cases of wrongful convictions.
Professor Martin’s case study was titled Wrongful Convictions: An International Comparative Study.
The results of her research, together with her testimony, were presented to the Commission along with expert panels formed to assist the Commission.
One looked at the role of police investigations in contributing to wrongful convictions while a second was on the role of science.
At Professor Martin’s instigation, the Associate Counsel to the Commission, Mark J Sandler, wrote to AFP Deputy Commissioner Adrien Whiddett asking that Mr Hadgkiss and Dr Robertson be made available to give evidence at the inquiry on systemic issues.
They presented to the Commission at the end of November and early December 1997.
Mr Hadgkiss was a member of the first panel, which also included:
0: Professor Martin.
0: A founder of an American organisation Centurion Ministries which works on behalf of the wrongly convicted, James McCloskey.
0: A solicitor of the Supreme Court of Judicature of England and Wales, Alistair Logan.
Mr Logan acted for defendants in the notorious cases of the Guildford Four, the Maguire Seven, and Judith Ward, among other wrongful conviction cases.
He was the subject of death threats in 1978 from the politically-motivated, UK-based National Front after publicity surrounding the Guildford Four case.
0: Professor and Chair of Sociology at the University of Florida, Michael Radelet.
During the previous 19 years, Professor Radelet had worked with Florida death row inmates and their families, and spent the previous 15 years researching erroneous convictions in homicide cases.
Dr Robertson, who has specialised in the examination of trace evidence was joined on the second panel by:
0: An American forensic scientist specialising in DNA work, Dr Edward Blake.
He was a member of the team of scientists who conducted the DNA tests which exonerated Mr Morin.
0: Executive Director of the National Forensic Science Technology Centre, Florida, Dr William Tilstone, who had been Professor of Forensic Science at the University of Strathclyde, Scotland, and Director of Forensic Science in South Australia.
Dr Tilstone had also acted as forensic consultant to governments around the world.
AIDWYC also organised a panel of people who had been wrongfully convicted of serious crimes.
The Commission’s report noted that "much of the evidence given by the participants . . . was truly heart-rending".
Among the panel members were Rubin Carter, former champion boxer immortalised in the 1970s Bob Dylan song Hurricane, and Patrick Maguire of the Maguire Seven.
By the time these panels were convened, the Inquiry had explored numerous legal improprieties from around the world, including Australia’s Lindy Chamberlain case during the 1980s and, similarly to this comparison, the Morin case generated enormous public interest — a brutal child murder, the neighbour accused being a young man with no criminal record, and high-profile defence lawyers and famous prosecutors ‘doing battle’.
The Guy Paul Morin conviction had centred on:
0: Trace evidence on the body, essentially hair and fibre, said to have come from Morin or his environment.
0: Odd behaviour and comments from Morin said to amount to ‘consciousness of guilt’, such as failing to join the search for Christine when she was discovered missing, and failing to attend the funeral.
0: Odd statements to police by Morin when questioned, first as a witness and later as a suspect.
0: Fellow prisoners who testified that Morin had allegedly confessed to them (which he denied).
0: Proof of opportunity and rebuttal of proffered alibi.
All this evidence had been challenged at both trials, but despite the DNA exclusion, prosecutors continued to believe it.
In its early stages, the Inquiry brought out evidence that:
0: The hair and fibre evidence was meaningless as the samples had been contaminated from the outset.
Evidence of ‘pink’ fibres, provided at both trials as significant matches were discovered to have been contaminants.
Discovery of the contamination was made before the second trial yet never disclosed to the defence or prosecution.
0: The hair and fibre contamination evidence led Director of the Centre of Forensic Sciences, Dr James Young, to order a review of the Hair and Fibre Unit’s results for the relevant period, including all of the files on which the Morin case scientist had worked.
The review disclosed that the contamination was not ‘post-test’, which was the evidence given at the Inquiry once the fact of contamination was disclosed, but was original contamination. (This revelation uncovered at least two further doubtful cases in which the Centre had participated).
0: The prison informants had initially recanted . . . and then recanted their recantations.
0: The ‘odd behaviour’ was seen as ‘nonsense evidence’.
A good deal of Morin’s behaviour was claimed to have been the product of police pressure or encouragement to suggestible witnesses.
Some of these witnesses alleged that: investigating officers had told them about other murder cases for which Morin was a suspect; that the Morin family was ‘incestuous’, and other false and damning claims.
0: Christine Jessop’s family admitted that they changed their evidence about the time she was known to be missing in order to make it possible for Morin to have snatched Christine from her home after he had finished work and after she got home from school.
0: On the ‘true’ version of the relevant times, he could not have killed her. The Jessop family alleged police pressure to change the times, which the police denied.
0: The investigating police had been slow in following up an eye-witness report of a car seen in the vicinity of the Jessop house about 4.05pm, with a young girl struggling with the driver.
0: The officer-in-charge of the crime scene was alleged to have ‘lost’ key evidence that would have exonerated Morin at the time, for instance a cigarette butt (Morin was a non-smoker).
The officer wrote an entire new notebook with a version which did not contain the cigarette butt evidence.
He was ultimately charged with obstruction of justice and perjury, but never went to trial because of a heart condition.
0: The police attention on Morin was based on their admitted conclusion that he was ‘odd’ because he played the clarinet, lived at home, raised bees, and loved his family, who were also musical and all very close.
The AIDWYC systemic panel on the causes of wrongful convictions testified before the Inquiry on November 26 and 27, 1997.
In speaking of his experience when he was seconded to the Royal Commission into the NSW Police Service as Director of Operations between 1994 and 1996, Mr Hadgkiss outlined six possible causes of miscarriages of justice which had been identified by the Commission. They were:
0: An incompetent investigation which had focused on someone other than the offender and closed its mind to alternative avenues of inquiry.
0: Corruption in its various forms.
0: The use of unreliable prison informant evidence.
0: An overzealous prosecution which encouraged the propping up of a weak case or concealing evidence which would assist the defence.
0: The use of evidence based on dubious forensic science or poor management of physical exhibits.
0: Incompetent or under-resourced conduct of the defence case.
Other panel members presented similar causes for wrongful convictions.
Mr Hadgkiss explained that there were two types of corruption analysed by the NSW Royal Commission — ‘rotten apple’ corruption and ‘process’ or ‘noble cause’ corruption.
The first concept, which seeks to explain police misconduct merely by the moral failings of certain individual officers, was discredited by the Commission.
Mr Hadgkiss said that chiefs-of-police might wish to imagine that they had only one or two ‘rotten apples’ but they needed to be intimately aware of what was happening at the operational end of their organisation.
Professor Martin described the second type of corruption as either a simple error in investigation, or deliberate police misconduct in influencing witnesses to alter testimony.
It was based on a supposed justification that the accused was guilty, and that a conviction was warranted.
Mr Hadgkiss’s views were incorporated into several of the Morin Commission’s recommendations.
In commenting on police culture and management style, he explained that wherever practicable, all training courses offered by police should include segments addressing integrity and multicultural awareness.
Mr Hadgkiss suggested that if the AFP’s values of integrity, commitment, excellence, accountability, fairness and trust were strictly imposed and imbued, other desirable reforms would follow.
He said he believed an appropriate police culture would permit investigating officers to admit that they had pursued the wrong suspect.
In a similar vein, the Morin Commission recommended that one component of educational programming for police and Crown Counsel should be the identification and avoidance of tunnel vision.
This was defined as the single-minded and overtly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably colour the evaluation of information received and an investigator’s conduct in response to that information.
Dr Robertson, in his panel on forensic issues, testified that a tunnel vision approach by police in a case in South Australia had resulted in the wrongful conviction of a man accused of murdering a woman in 1979 because they had not looked hard enough at alternative suspects. Edward Splatt had been convicted on forensic evidence which was trace in nature.
The verdict was overturned and the subsequent Royal Commission in the early 1980s led to the remodelling of forensic services in that State.
Mr Hadgkiss highlighted the problem of tunnel vision in his comments on the ways in which progressive police services record major decisions made throughout the course of an investigation.
He said everything should be properly documented and accountable in a computerised, auditable system, even if the process was open to examination by the defence.
The Commission was interested in the Quality Assurance Review process that is a key aspect of case management systems in Australia, taking particular note of an example where in major cases involving large amounts of resources, experienced, independent officers can be brought in to help conduct an audit.
The Commission strongly favoured that the Durham Regional Police Service should adopt a policy of videotaping and/or audiotaping suspects and witnesses generally. It recommended that the Service " . . . should investigate the feasibility of adopting the practice of the Australian Federal Police of carrying tape recorders on duty for use when interviewing in other locations or indeed, for use when executing search warrants or in analogous situations".
Mr Hadgkiss testified about AFP policy regarding formal interviews with suspects.
He commented on standards relating to the recording process, the fail-safe mechanisms built into the technology, the process of preservation of records, the initial high cost of equipping officers and the potential increase in productivity following the introduction of videotaping.
There was an increasing expectation by defence counsel and the Australian judiciary generally that conversations with suspects would be electronically recorded, he said.
Mr Hadgkiss also described the system adopted by the AFP for note-taking and record-keeping which was received positively by the Commission.
The effectiveness of the use of the contentious tools of psychological profiling and polygraph testing, which played a major part in the Christine Jessop murder investigation, was the subject of some debate by the panel with the Commission expressing a qualified and limited support for the use of both techniques.
The Commission recommended that the Canadian Government should study the advisability of the creation of a criminal case review board.
Mr Hadgkiss had spoken of the move in NSW towards the creation of such a body.
He explained that, at the time of his evidence, it had been proposed that such a body might investigate matters referred to it by the NSW Court of Appeal or others, and refer cases back to the Court of Appeal where there was a possibility of a miscarriage of justice, and that payment of compensation was also being provided for.
Counsel appearing for the Morin family was critical of the prominence played in the second trial of the evidence of the prison informants.
Among numerous testimonies, Mr Hadgkiss spoke of his own experience: "if nothing else, they want attention . . . they are prepared to be a prosecution witness. They want the limelight, they want to expose something, but there are ‘mala fides’ afoot. You’ve really got to get to the reason why they want to do this. Why do they want to assist police?"
As noted earlier, hair and fibre evidence tendered by forensic scientists who had worked for the Centre of Forensic Sciences in Toronto had assumed significant importance at both trials.
Evidence revealed only at the Commission of Inquiry stage demonstrated that the fibre was contaminated while in the possession of the CFS.
The Commissioner determined that all hair and fibre evidence was essentially valueless.
One of the purposes of the forensic scientists’ panel was to aid the Commission in forming recommendations which might prevent the misuse of science in future criminal proceedings.
As the largest forensic laboratory in Toronto, the CFS is called upon daily to assist in the investigation of serious crimes.
The extent of the problems endemic to the institution and raised by the Inquiry caused management to conduct a major organisational review.
The Commission also considered whether the CFS should be reconstituted as an independent agency but ultimately decided against it.
In its submissions, the Centre suggested that accountability to the public might be best achieved through keeping the service within government.
Dr Robertson endorsed this approach saying: "The reality is that the real quality of the work which is produced is dependant upon the training and the competencies of the individuals. And if you produce someone who views themselves as a professional, you’ve got a much better chance, underpinned by professional values, . . . that that person will perform as a professional within whatever organisation they happen to be in".
The matter of accreditation and quality control in forensic laboratories was of significant interest to the Commission.
The CFS adheres to an accreditation program administered by the American Society of Crime Laboratory Directors’ Laboratory Accreditation Board.
Dr Tilstone spoke of the International Standards Organisation ISO 25 Guide. He noted that the ASCLD/LAB program met most but not all of the latter’s expectations.
Dr Robertson presented information on the Australian National Association of Testing Authorities forensic program, the requirements of which are combined with the ASCLD/LAB and ISO requirements to form a much stronger set of accreditation criteria. He also issued a caution on accreditation procedures, noting that they merely tested the opportunities that management had in place for people to participate in training and development, saying it was up to management to ensure that staff took up the opportunities.
The Commission recommended that a review system be established to ensure that appropriate high standards of expertise, professionalism and integrity be maintained.
Both Dr Robertson and Counsel for the Morins spoke in favour of a complaints mechanism for Crown Counsel to bring adverse judicial findings on laboratory evidence to the Director’s attention.
Dr Robertson also raised difficulties with the use of blind and external proficiency testing for analysts, particularly in the context of hair examinations.
The standard of reporting by the CFS had drawn criticism from the Commission and several parties early in the proceedings.
Within this ambit, Dr Robertson provided information on practices under NATA guidelines regarding preliminary or interim reports being submitted by telephone and the inadequacies which he perceived in CFS written reports.
He said that, generally, it was not the technical testing that created difficulties in court, rather what was said about the tests in reports and in court.
Dr Robertson specifically endorsed the idea of stakeholders working out together how reports should be structured in the particular jurisdiction.
Dr Robertson said that reports should be candid and aimed at non-concealment.
He advocated more pre-trial meetings where all issues could be canvassed, and possibly resolved.
He also put forward to the Commission valuable information on the development of appropriate standardised terminology and standards for fibre and hair comparisons.
He suggested that forensic laboratories might work with other justice administration stakeholders in formulating appropriate language.
Morin’s Counsel reinforced the need for a written policy on the writing of reports at the Centre, drawing on inclusions proposed by the scientists.
Following Dr Robertson’s recommendations, the CFS developed specific standardised written material to describe the tests conducted, and definitions of terminology.
A further aspect of reporting which had drawn Commission criticism was the CFS’s failure to document contact with third parties, particularly police, prosecutors and defence counsel.
Dr Robertson testified that in his laboratory, any conversation between a submitting officer and the person receiving the case was recorded in the case file.
The CFS had begun a log of all communications which would be subject to disclosure.
One of the more contentious aspects of the forensic evidence concerned the probative value of inclusionary and exclusionary results.
Drs Tilstone and Robertson testified that scientific language historically had been constructed from an inclusionary perspective.
They both suggested it be reconstructed from an exclusionary perspective.
Morin’s Counsel strongly supported this approach, particularly in respect of forensic hair comparison analysis and evidence of a presumptive test, such as indications of blood or semen.
The Australian Splatt and Chamberlain cases were both cited in this context.
The matter of post-conviction retention and storage of original evidence was the subject of a further recommendation by the Commission that was based almost entirely on a proposal from Morin’s Counsel.
Dr Robertson noted that there are no definite policies and protocols in Australia currently, but added that he believed that retention was a police responsibility, not a forensic institution responsibility.
The Commission’s recommendation proposed establishment of protocols through a consultative process involving relevant parties.
Allied to this issue was the establishment of a national (Canadian) databank, and the problem of forensic testing which could consume or destroy original evidence.
Drs Robertson and Tilstone commented on steps being taken regarding establishment of databanks in the USA, England, Wales and New Zealand.
Regarding possible destructive testing, Drs Robertson and Tilstone said they preferred to take all steps to ensure that sufficient material might be available for repeat testing.
Australian forensic protocols included this principle.
They said that if this was not possible, they would consume all of the sample if the most discriminating test needed to be carried out.
In July last year, the Director of the Centre of Forensic Sciences wrote to AFP Commissioner Mick Palmer asking that Dr Robertson take on the role of an independent expert, which had been suggested by Justice Fred Kaufman in his Royal Commission report, to review and audit the Centre’s progress in meeting the recommendations of the Commission.
Dr Robertson is expected to make two inspections of the Centre later this year."
Harold Levy...hlevy15@gmail.com;
