Pearls and Irritations

Most Australians have little idea how frequently miscarriages of justice in the form of wrongful convictions occur in Australia. This lack of knowledge should be no surprise; not even our criminal justice system tracks such data let alone researches the possibility of wrongful convictions. In the absence of data, most people, including many in the criminal justice system, see instances of wrongful convictions such as those of Lindy Chamberlain and Kathleen Folbigg as rare aberrations.

In our soon to be published book “Wrongful Convictions in Australia”, we draw attention to data on wrongful convictions from the USA and England and we provide an estimate of the size of the problem in Australia derived from extrapolation of data from England.

A DNA-based study from the USA estimated that 5% of rape and 8% of murder convictions in Virginia in the 1970’s and 80’s were wrong. The retained probative samples did not contain the DNA of the convicted person. Similarly the US Innocence Project has used post-conviction DNA testing in cases of serious violence where such testing had not been used initially but where the biological evidence had been retained securely. In many cases the circumstances were such that, if the conviction was correct, the convict’s DNA should have been present in the retained biological evidence – but it was not. In addition, the discovery of another person’s DNA by the Innocence Project has frequently led to the apprehension of the true perpetrator.

Since the early 1990’s, innocence has been established in this way in over 350 cases in the US. The wrongly convicted people spent on average 13.5 years in gaol. Many innocent individuals were on death row and a small number had been executed. The problems leading to the wrongful convictions included faulty eyewitness evidence, informant and prosecutor malfeasance, defence inadequacies and forensic science failures. The Innocence Project believes that because there is no reason to believe that the problems uncovered in the DNA exonerations are confined to those cases, those problems in fact pervade the entire US criminal justice system. Thus, the US Innocence Project has stated that there are ‘staggering’ numbers of wrongly convicted people in US prisons. The work of the US Innocence Project is changing the public perception of the criminal justice system in that country. We do not suggest that the American experience reflects the size of the problem in Australia, but it certainly indicates that if you do not look, you will never know.

An extrapolation can be made from the volume of claims of wrongful conviction dealt with by the English Criminal Case Review Commission (CCRC) established in 1997. In 2020/21, the CCRC considered 1109 cases and referred 70 to the Court of Appeal. Thirty-three cases were decided by the Court of Appeal in 2021 with convictions quashed in 26, an acquittal rate of 79%. Furthermore, between 1997 and March 2019, the UK CCRC referred 657 cases to the appeal courts, an average of 32 per year. The courts quashed convictions in 441 of these cases, (an acquittal rate of 67%), dismissed the appeal in 203 cases with the remaining 13 not resolved at the time of reporting. If these numbers are extrapolated pro rata to Australia – which has a similar criminal justice system – taking into account national and prison populations, since 1997 in Australia there would have been approximately:
• 300 cases referred to appeal courts;
• 200 convictions quashed
• 90 convictions upheld (with five awaiting judgement).

There is thus good reason to believe that, if Australia had a CCRC, each year around 9 people in Australia would be discovered to have been wrongly convicted (after all their appeals had been exhausted).

The research of Dr Rachel Dioso-Villa, a criminologist at Griffith University, has provided further evidence of the size of the problem in Australia. By searching court files and old newspapers she created and published a ‘repository of wrongful convictions’. In the years between 1997 and 2015, she identified 48 wrongful convictions (defined as factually innocent or where the conviction was overturned and there were significant concerns about guilt and the safety of the original conviction). Some of these convictions were corrected at appeal. She noted that her repository was likely to be incomplete given the absence of prospectively collected national data. She also noted that her data was skewed by virtue of media interest in only the most serious crimes.

There have been attempts to address these concerns. Four Australian jurisdictions have passed legislation that provides for an additional appeal if the convicted person can produce fresh and compelling evidence to present to a Court of Appeal. The first jurisdiction to introduce this legislative change was South Australia in 2013 and the first convicted person to benefit from it was Henry Keogh who was wrongly convicted in 1995 for the murder of his fiancée.

While the concept of finding and presenting ‘fresh and compelling evidence’ may sound logical and attractive, it carries three serious drawbacks. First, the legal standard of ‘fresh and compelling’ is higher than the standard to be met at the Court of Appeal. On appeal, if there is ‘reasonable doubt’, the person must be acquitted. Second, in such appeals, it is unusual to have new or fresh evidence; more commonly it is a matter of new or different interpretations of, and new challenges to, old evidence. Third, the administrative and logistical barriers to wrongly convicted prisoners are effectively insuperable unless they have considerable organised external, and usually pro bono, support.

In our book we seek to document many of the factors that lead to wrongful convictions and we join the chorus of voices that have been calling for an Australian CCRC for many years. If his claims to innocence have not already been addressed, we suggest that an early case to be referred to Australia’s CCRC should be that of Victorian man, Robert Farquharson.

After dark on Father’s Day in 2005, the car Farquharson was driving ended up in a dam and his three young sons, aged 10, 7 and 2, were drowned. In 2010 he was convicted in the Victorian Supreme Court for the murder of his sons and is serving a sentence of 33 years. He continues to claim that he is innocent. In an interview recorded on the night of the accident, Robert Farquharson told the police “I think I just went over the overpass and I started coughing and um, I don’t remember anything, and then all of a sudden I was in the water”. He has never deviated from this account.

If the prosecutor, two juries and the Court of Appeal have got this right then Farquharson is a very clever schemer and an extremely talented driver. He was accused and found guilty of killing his sons by deliberately driving his car into the dam. For his scheme to be successful, he needed to steer his car at speed at night on to the wrong side of an unlit country highway through a wire fence, scraping a tree, before plunging into a deep dam. He had to know ahead of time that when he drew near the identified spot there would be no oncoming traffic. He also needed to know exactly where the dam was and know that his path would not be stopped by a fence post or a tree. For his scheme to be certain of success, he also needed to know that the dam was deep, that his car would swiftly sink, and that he himself would be able to escape quickly and not drown.

On Farquharson’s account (which is supported by much of the evidence) what happened was that after a happy dinner out he was driving his sons back to where they now lived with his ex-wife. He had a violent bout of coughing, lost consciousness (the medically recognised entity of cough syncope) and awoke a few seconds later to find his car rapidly sinking in a steep-sided dam. The dam was later found to be more than seven metres deep. Indeed it was a not a typical farm dam but a deep hole left after quarrying for stone for road-building. When Farquharson opened the driver’s door, water rushed in and the car sank more rapidly. Because of the dark and the depth of the dam he was unable to reach the car and rescue his boys.

This account was not accepted at two Supreme Court trials or by the Court of Appeal. We believe that outcome was rendered more likely because of tunnel vision (also known as confirmation bias, an effect which is usually subconscious) on the part of the police and the prosecutor. A detailed analysis of his case authored by Dr Chris Brook, a scientist who is also trained in law, has been published under the title of Road to Damnation: The wrongful conviction of Robert Farquharson. Brook’s analysis points out at least three key elements of the evidence against Farquharson which were likely to have been tainted by confirmation bias.

One key issue was whether there was evidence that Farquharson’s car was steered (that is, as a conscious act) into the dam. The motor vehicle accident reconstruction expert relied upon by the prosecution gave evidence that three steering inputs were required for the car to follow its path from the road to the dam. Dr Brook’s analysis concludes, persuasively in our view, that these and related assertions were not supported by science. Brook’s analysis was that “an unsteered car that followed the slope of the terrain could have left all the physical evidence that was found”. The expert was part of the police team conducting the investigation. Incidentally, in 2017, Victoria Police decided to relocate the work of its accident reconstruction experts from its Accident Investigation Squad to its Forensic Services Division.

A second issue was the showing to the jury of a video of a re-enactment of an identical car sinking in a dam. Recalling that the dam into which Farquharson’s car sank was steep-sided and over seven metres deep, it is remarkable that the trial judge allowed this highly misleading video to be shown. For the video re-enactment, the dam used was only 2.5 metres in depth (i.e. about half the length of the car) and since the front of the car comes to rest on the bottom quite quickly, the back remains poking out, with the result that it took nearly eight minutes for the car to sink. Dr Brook consulted an independent expert on this aspect and received advice that in the deeper dam, it would probably take around two minutes to sink and even less once a car door was opened.

The third and probably the most important issue was the weighing up of competing views as to the diagnosis of cough syncope. The prosecution used a Melbourne-based academic respiratory physician whose expertise was in sleep apnoea. A reading of that expert’s report relied upon by the prosecutor suggests that the physician’s views were influenced by the provision of a full brief of the evidence held by the prosecutor. The physician was not invited to medically assess Farquharson in person. The physician told the jury in essence that cough syncope was highly unlikely because the entity is ‘extremely rare’. The defence called a Geelong respiratory physician who had seen Farquharson as a patient for a clinical assessment and who had in the previous 12 years consulted on ten patients in whom he had diagnosed cough syncope. The Geelong physician regarded Farquharson’s case as a ‘classical example’ of cough syncope. Since research into how juries make their decisions is not permitted in Australia, one will never know why the evidence of the more experienced physician was rejected.

A likely significant factor in Farquharson’s conviction was the evidence of a male friend who recounted a conversation held with him three months before the event. The friend concluded that Farquharson intended to harm his children to punish his wife for leaving him for another man. We acknowledge the existence of this evidence but we note, based on Chris Brook’s analysis, that the friend’s recall of the details of that conversation increased over time and followed a number of requests from investigating police to continue trying to recall all the details. The result was that the friend eventually recalled Farquharson told him “of his plan to kill his children in full detail including the exact date that it would occur, how he would do it and how he would make it look like an accident”(ex Brook). Such improved recall of any conversation over time is highly unusual and its reliability is doubtful.

At the time of his trial there was evidence presented of Farquharson having experienced blackouts after coughing bouts between the time of the boys’ deaths and the trial. We understand that since being sent to prison, further cough syncope episodes have been documented, some witnessed and some associated with injuries that are consistent with loss of consciousness. In our view, that Robert Farquharson suffers from cough syncope is not really in doubt.

Throughout the last eighteen years Robert Farquharson has, like Kathleen Folbigg, insisted on his innocence. The Victorian criminal justice system now permits a further appeal if fresh and compelling evidence can be produced. As discussed above, this is a bar which is both unfair and logistically too high for a prisoner to clear. His case represents another argument in favour of the establishment in Australia of a CCRC.

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