Why is Australia’s criminal justice system so resistant to change?

Jun 19, 2024
Flag of Australia and police handcuffs.

How many more wrongful convictions does Australia have to have before state and federal attorneys-general and senior members of the legal profession agree that they must address this serious problem?

Why is Australia languishing so far behind similar legal systems in England and Wales, Scotland, New Zealand and Canada? In the case of the UK, over 25 years behind.

Why is one of the oldest professions, one of the original three “learned professions”, so resistant to improving itself and the structures within which it works?

Is this inertia because the legal profession and the justice system rely on leadership from elected attorneys-general and have no other internal leaders?

What can the broader community do to push for change in our justice system, a system that depends for its legitimacy upon the trust of the community?

As medical practitioners without legal qualifications but with considerable experience of interacting with the legal profession, we do not know the answers to these five questions. But do know something of the basis for them. In addition, from our recent research, we suggested a number of improvements that were needed in the criminal justice system, one in particular being crucial, viz. the establishment of a national criminal cases review commission.

Any Australian over the age of sixty years will recall the conviction in a Darwin Court in 1982 of Lindy Chamberlain for the murder of her baby daughter Azaria (and her husband for being an accessory). She was given a life sentence with hard labour. They may also recall that she was released from prison in 1986 and, following a Royal Commission, exonerated in 1988. In 2012 a fourth inquest concluded that Azaria’s death ‘was the result of being attacked and taken by a dingo’.

Few Australians will be aware that the Royal Commission into Lindy Chamberlain’s conviction made several recommendations for improvements in the practice of forensic science that were only partially taken up. Moving forward some 40 or so years, Australians recently learned that Kathleen Folbigg was a loving mother who did not harm her four children; yet she was convicted of murder in 2003 and spent 20 years in prison; her conviction was only overturned after an unprecedented two judicial inquiries. These two shocking instances (among many others collected by Dioso-Villa), and a possible further wrongful conviction in Victoria, are the ‘tip of an iceberg’ of unknown size as the legal system does not itself keep count. It is likely that around nine or ten wrongful criminal convictions (at p.17), convictions attracting significant prison time, take place every year in Australia.

We do not say that the criminal justice system is broken but much can go wrong in a criminal trial. Some errors occur because of subconscious influences and hence are difficult to counter. Other mishaps are due to malfeasance on the part of participants for unknown motives; these too are difficult to counter. Junk science has recently been held to be a key factor but such a focus ignores numerous other contributing factors. We suggest that the term ‘junk science’ trivialises a multi-faceted issue. There are many possible reasons behind wrong convictions. These include:

  • misleading, inadequate or poorly validated forensic science and other expert opinion evidence;
  • tunnel vision and confirmation bias affecting police, expert witnesses and even courts;
  • unreliable opinion evidence which then biases other evidence and its interpretation;
  • police over-zealousness, incompetence or corruption;
  • prosecutor misconduct, including failure to disclose exculpatory evidence;
  • false or coerced confessions, especially from vulnerable suspects;
  • inappropriate reliance on police informants or prison informants;
  • mistaken eyewitness evidence including misleading line-up identification procedures;
  • perjury by witnesses as well as perjury and/or negligence by criminal justice officials;
  • ineffective, inexperienced or under-funded defence counsel;
  • the reliance on juries to assess the validity and reliability of scientific and medical evidence;
  • erroneous judicial directions to the jury;
  • media pressure and/or stereotyping; and
  • Indigenous ethnicity of the accused.

In recognition that juries, courts and appeals courts can get things wrong, beginning in England and Wales in 1997, an additional post-conviction safeguard in the form of a Criminal Cases Review Commission (CCRC) was introduced. The Head of Criminal Justice in that jurisdiction from 2017-2019, Sir Brian Leveson, regards the CCRC as “an essential requirement of fairness and justice” (at p. xv). A CCRC has since been established in Scotland and in New Zealand and has been legislated for in Canada.

A number of Australian legal academics (at p.87) and at least one eminent retired judge have been calling for several years for a CCRC to be established in Australia. More voices have been added recently including those of Kathleen Folbigg and the Australian Academy of Science. To date the issue has not been included on the agenda of the Standing Council of Attorneys-General. Surely it is time for the entire legal profession to add their voices for this to happen so the matter can be properly canvassed. And perhaps it is time for all concerned Australians to let members of parliament know that the issue of wrongful convictions is serious and demands their attention.

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