Miscarriages of Justice: "Not an isolated problem..."

Photo April 25 2013 The Times (www.thetimes.co.uk)

“The prospect of an innocent person being convicted of a serious  crime represents a catastrophic failure of the legal system.” 

​Lord Igor Judge
​Lord Chief Justice of England & Wales
Australian Institute of Judicial Administration Conference. Sydney, 2011

Recently I had the opportunity to listen to Dr Bob Moles, a former law professor at ANU and Adelaide University, being interviewed on issues associated with miscarriage of justice in Australia and within other ‘refined’ legal systems in the world. With his partner, Bibi Sangha and other colleagues, Dr Moles has campaigned for justice on behalf of the wrongfully convicted. He has taken a moral stance on this issue which has come at considerable personal cost. His story is not mine to tell but some of his work has resulted in changes in legislation in various jurisdictions in Australia to ensure that those who have been wrongfully convicted, regardless of reason or circumstance, have access to legal remedy. 

Ultimately his work appears (to my mind at least) to have made the justice system more just, more robust and enhanced its ability to investigate and address its own failings. He has been involved in widely publicised cases such as those of Henry Keogh (South Australia) and Sue Neill-Fraser (Tasmania), which you can easily research using your favourite search engine.

October 2nd marked International Wrongful Conviction Day.

There are a few reasons which have sparked my interest in Dr Moles and his work. Firstly, as a highly regarded practitioner and educator he has demonstrated a commitment to the values espoused by the legal profession. Justice is not a concept to which he pays lip service; his pursuit of justice has probably cost him reputation and potential employment or income. For interest sake a QC may earn up to $8,000 for your day in court should you ask her to represent you.

As I listened to him speak, the humility one expects of such principled and values based leadership was also demonstrated. We can call examples of great leaders and CEO’s who inspired others through their steadfast commitment and willingness to ‘get their hands dirty.’ I’m sure Dr Moles would be rather annoyed if I was to liken him to a legal version of Mother Teresa working with the untouchables, if not for his apparent humility, but for the fact he stands over six feet tall!

Photo: David Solm, published February, 2014, Sydney Morning Herald

Dr Bob Moles

Secondly, many of us can give examples where Lustitia appears to have put on an extra thick blindfold and dropped the scales she carries, only to pick up a manual on the politics of personal advancement or how to win elections. I recall conversations I once had with a person who worked in SA’s correctional services system with many notorious convicted criminals and who through their own relational experiences was able to turn names and headlines into flesh and bone.

I am also reminded of how perversely our media, and by association we as consumers, engage with narrow and sensational presentations and sound-bites of matters in our courts. How for weeks we can be consumed with debating the ‘facts’ or otherwise of a person charged with a heinous crime, or a person, who upon admission of their own guilt faces execution in a neighbouring country. Less often are we challenged to speak out about injustice where our own judicial system has failed, or those who have administered the system have acted unconscionably. Maybe if we were vigilant monitoring our own legal system closely we might discover that our default view that our system is ‘fair’ is not supported by facts and reality. Maybe that challenges us as consumers of Lustitia’s portrayal in the media that we might be bystanders to, or facilitators of, injustice ourselves.

I’m not sure how Dr Moles’ interview and the considerations which have arise from it will influence my thinking beyond this blog post. I am conscious of the tongue in cheek joke about two social workers who find a man, beaten and bleeding in the gutter. The first social worker says to the second, “Whoever beat that man and left him lying in the gutter needs help.” Do we focus our care on the ‘victims’ or the perpetrators? Are some people wounded in our justice system more deserving of advocacy and support than others? 

​A final thought to share with you. Sir William Blackstone (1722-1780) had his treatise Commentaries on the Laws of England published in 1765. This work has significantly shaped the legal system of England (and courts worldwide founded on similar principles). One of his significant legacies which is integrated into the rules, customs and practices of our judicial system is known as Blackstone’s Ratio, that is the idea that it is better that ten guilty persons escape than that one innocent suffer. Unfortunately in modern "sound-bite" Australia I cannot imagine a politician or journalist advocating this significant principle if votes or advertising revenue were at risk.

“It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished.... when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, 'it is immaterial to me whether I behave well or ill, for virtue itself is no security.' And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.”

For some examples of miscarriages of justice currently being examined or reviewed in Australia.

Melissa Dunn (NSW) 

WA Chief Justice Wayne Martin fears language barriers putting innocent people behind bars

Overview of notable miscarriage of justice cases in Australia 

Henry Keogh (SA)

John Adams (Jr.) 1735 - 1826