Cases that raise serious issues about forensics and fundamentals of justice

Bibi Sangha and Bob Moles

It is now clear David Eastman in the ACT and Henry Keogh in South Australia both spent over 20 years in prison for crimes they did not commit.

Both murder convictions were based upon fundamentally flawed forensic evidence given by witnesses not properly qualified in the relevant fields of expertise. Over the years prosecutors (and others) had known about the concerns but had not disclosed them, as they ought to have done.

In addition, in recent weeks, the president of the Court of Appeal in Victoria acknowledged earlier reports emanating from the US which established that all of the forensic sciences (apart from DNA) used in criminal trials had not been properly validated. He was supported on this by a senior forensic scientist at the Victorian Institute of Forensic Medicine. The Victorian Attorney-General is now calling on all of her counterparts around Australia to support a national review of the issues.

Any review might well consider the problems exposed by the royal commissions into the cases of Edward Splatt and Lindy Chamberlain in the 1980s. Each of the two murder prosecutions had used more than 20 experts at the trials. In each case, all the experts made errors in the evidence submitted to the courts. Curiously, all the errors favoured the prosecution's case.

That is a 100 per cent failure rate in two of the most high-profile cases of their day. It is clear the experts had not colluded as many of them had not met. But they did know which side to support — and the future benefits which might flow from their assistance. The Splatt commission recommended the establishment of a National Institute of Forensic Medicine to operate independently of police. When this was subsequently established, every state and federal police commissioner was appointed to its board.

The national review might also consider that in South Australia the state provided sworn evidence in civil proceedings in the mid-1970s involving the chief forensic pathologist there. It was to the effect he was not qualified to certify cause of death nor to give expert evidence in court. Yet the state continued to use him for the next 20 years to conduct more than 10,000 autopsies and to help secure more than 400 criminal convictions.

The current position of the South Australian Attorney-General is we do not need an inquiry. She says the problem cases can be dealt with on a case-by-case basis "as they arise". There is, of course, no proper process by which the "arising" can take place.

Perhaps the national review might consider how to get cases like those of Eastman and Keogh back to the courts after the deficiencies have been discovered. Eastman was fortunate that his case occurred in the ACT, which is one of only two jurisdictions-(including NSW) that have a special procedure allowing for an inquiry to review his claim to be wrongfully convicted.

He only obtained his review after struggling for years through 11 previously unsuccessful attempts. Keogh was fortunate that, after 13 years of procedural wrangling, we were able to persuade the Human Rights Commission and the parliament of South Australia that the existing appeal procedures in all states and territories were in breach of international human rights obligations.

This failed to protect the right to a fair trial and the right to an effective appeal. That led to a new right of appeal (subsequently adopted in Tasmania) which led to Keogh's case ultimately finding its way back to the courts.

There is no doubt that if either the Eastman or Keogh cases had occurred in jurisdictions other than those mentioned there would have been very little chance of getting them reviewed. That would have likely meant the rest of their lives spent in prison. The head sentence for murder is life imprisonment.

A non-parole period is merely a recommendation by the trial judge which may be considered upon its expiry. If, at that stage, the convicted person refuses to acknowledge guilt, they maybe deemed to be recalcitrant, and unwilling to accept responsibility. In those circumstances parole will most likely be denied.

In South Australia, Derek Bromley is now 13 years past the expiry of his non-parole period because he maintains he is innocent of the crime for which he was convicted.

The UK has had a review com-mission which has overturned more than 400 criminal convictions during the time Eastman and Keogh spent in jail. In Australia, the states spent many millions of dollars trying to prevent those cases from being reviewed. Surely that money would have been better spent trying to prevent such wrongful convictions in the first place — and to ensuring we have proper review mechanisms to deal with those that do occur?

From "The Australian" 18/10/2019






A sort of revenge: Eastman was innocent but prosecuting him cost the government a vast sum

I have followed the case from the outset and it always seemed to me that he was convicted on speculation only. The evidence to convict him was just not there. He was undoubtedly a bit weird but so are many others

Former public servant David Eastman left court this week "relieved" and "very happy" after a judge awarded him more than $7 million in compensation.

The 74-year-old Canberran spent most of his mid-life in prison for murdering the ACT's top police officer, Colin Winchester — a crime of which he was eventually found not guilty.

When the ACT Government announced this week it would not appeal against Mr Eastman's payout, it closed a case that spanned three decades and churned through countless millions of dollars.

Indeed, the Eastman saga is older than the territory government itself, which did not exist when Mr Winchester, an assistant federal police commissioner, was shot dead in 1989.

But the payment has not ended the arguments over why this case was stretched out for so long, how it was conducted and how much it ultimately cost taxpayers.

ACT budget papers show that, before this month's compensation case, the Government had spent about $26 million on Mr Eastman over the past seven years.

That included funding an independent judicial inquiry into his flawed 1995 conviction and prosecutors' decision to go ahead with a retrial, against the inquiry's explicit advice.

But it excludes the costs of Mr Eastman's initial trial, two High Court challenges, his many other legal battles, his 19 years in jail — including in some of NSW's most violent prisons — and what was widely reported at the time as Australia's biggest-ever police investigation.

That investigation involved four police forces: Winchester's community policing colleagues, the federal police, and New South Wales and Victorian detectives, who explored the possibility that Calabrian mafia had ordered the police officer's assassination.

A lack of records, and the number of jurisdictions involved, makes estimating the financial costs of all these related matters impossible.

However, it hardly stretches credulity to suggest that pursuing, prosecuting, imprisoning and defending Mr Eastman (via legal aid) over three decades cost twice or three times the expenses of the latest inquiry and retrial — taking the amount beyond $60 million or even $100 million.

Brian Martin, the judge who oversaw the 2014 inquiry that set aside David Eastman's initial conviction, warned that a retrial would be neither feasible nor fair. But then director of public prosecutions Jon White went ahead anyway.

His decision split Canberra's legal fraternity and remains controversial. Bar Association president Steve Whybrow said many were still critical of the DPP. "It was very hard to reconcile the public interest in a second trial for somebody who had done nearly 20 years in custody where there was such strong recommendations by the reviewing judge about the degree of impropriety in that trial," he said.

But Gary Humphries, who was the ACT's attorney-general at the time of the first trial, believed it was the only appropriate response. "We're dealing with the assassination of the most senior public official in Australia that's occurred, and we couldn't leave that question unanswered," he said.

"The only way of dealing with that question at the time that the court overturned the original conviction was to proceed to a second trial, there simply wasn't any other way of dealing with it."

But Mr Humphries agreed with the government's decision to abandon any future appeals. "The law is quite clear, a person in that position is entitled to compensation," he said. "$7 million is probably an appropriately couched amount for somebody who spent nearly 20 years in jail for what is officially a crime they did not commit."

SOURCE  






Federal Labor has continued its push for Australia to declare a climate emergency

Declaring a climate emergency would be an opportunity for Australia's parliament to "change course" on how it grapples with climate change, federal Labor argues.

Labor climate change spokesman Mark Butler has launched a fresh bid to have a climate emergency declared, by introducing a motion to the lower house.

The motion comes after more than 370,000 Australians signed an e-petition calling for federal parliament to make such a declaration. The attempt comes after a similar Labor motion fell short in the Senate last week.

Mr Butler said reports from the Intergovernmental Panel on Climate Change make it clear the window is closing for the world to cap global warming at two degrees, or ideally 1.5C.

That's the target laid out in the Paris Agreement, which Australia has signed up to and which the Morrison government says it will meet.

"We're frankly just not on track to meet those," Mr Butler told the lower house on Monday. "We are failing our children. We are failing our grandchildren, and generations beyond that."

The MP said declaring a climate emergency would be an opportunity to move in a different direction. "This motion is a chance for the parliament to change course," he said. "It is an attempt to have the parliament recognise the gravity of this challenge."

Energy Minister Angus Taylor said the government was getting on with the job of cutting emissions. "It's about taking real action, not hollow symbolism and empty gestures," Mr Taylor told Sky News. "It's not about words and motions, it's about actions, and so that's what we're doing.

Nationals MP Pat Conaghan dismissed the motion as "redundant".  He said the coalition has made clear its plan for tackling climate change, including its "climate solutions" fund which supports emissions-lowering projects.

Labor MP Ged Kearney said it's clear climate change is not a priority for everyone in parliament. "If this government had a plan, a real plan, Australia could be leading the way to mitigate this climate emergency," she said.

Labor had moved an identical motion in the Senate last week, which failed with a tied vote.

The day before, the Morrison government killed off a Greens motion to declare a climate emergency in the lower house.

Debate on Labor's latest motion has been adjourned.

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The culprit behind East Australia's big dry

It's not global warming after all. It's the Indian Ocean Dipole

When leading climate scientist Matthew England began work at a lab in Hobart in the mid-1980s, visitors were greeted by a huge graphic depicting a tight correlation between El Ninos and Australia's farm yields.

Any government minister would leave understanding that "we’ve got a tremendous amount of economic wealth" dependent on Pacific climate influences, making El Nino research "iconic", England says.

It turns out more attention should have been paid to the Indian Ocean.

As we have seen this year, conditions that drive El Ninos - relative sea-surface temperature differences between the western and eastern Pacific - have been neutral. But the counterpart ratio in the Indian Ocean has gone haywire. Known as the Indian Ocean Dipole (IOD), the gauge last week hit record levels.

In its so-called positive phase, tropical waters off Australia's north-west are relatively cool  - compared with those near Africa - strengthening easterly winds and reducing the potential convection that typically supplies much of south-eastern Australia's critical winter and spring rains. A negative IOD has the opposite effect.

“They used to think the Indian Ocean was a slave to the Pacific," says Cai Wenju, a senior climate researcher at the CSIRO, adding this year's IOD figures are "gigantic".

“The biggest clue" that the Indian Ocean could influence Australia independently came in 2007 and 2008 when the Pacific was in its La Nina phase, which should have raised the odds for good rains, Dr Cai said. Instead, the Millenium Drought was still playing out, and there were positive-phase IODs three years in a row.

"Sometimes, the El-Nino Southern Oscillation has copped a bad rap when it should have been the IOD," Andrew Watkins, head of long-range forecasting at the Bureau of Meteorology, says.

Australian researchers from the 1980s had started examining how relative warm or cool waters off Western Australia could affect rainfall over the continent. However, it took two papers published in Nature in 1999 by Japanese and North American scientists - including Australian Peter Webster - to tease out the potential of an independent IOD.

Scientists including England and Cai will gather in China next month to mark that 20th anniversary, with the IOD now a key component of Australia's and global weather and climate predictions.

Scientists caution that reliable observation data only goes back a couple of decades but it is clear this year's positive-IOD is already one of the strongest of record. So-called "reanalysis" using a combination of observations and modelling suggests the event is also notable over the past 150 years.

Nerilie Abram, an associate professor at the Australian National University, published work in 2009 that used coral cores among other data to push IOD estimates back to the mid-1800s. Research awaiting publication will look back 1000 years. While the current event is significant, her study suggests “perhaps the instrumental record doesn’t tell us the full range what’s actually possible in the Indian Ocean”.

The magnitude of an IOD appears to matter more for rainfall over south-eastern Australia than the El Nino-La Nina flux, the Bureau of Meteorology's Watkins said: "The stronger the IOD, the stronger the impacts ... for Australia, and maybe for Africa."

Another difference is that Indian Ocean conditions are more regulated by the seasonal cycle than the Pacific. Positive or negative IODs typically take form by May or June, peak around September and October, and break down in November to December as the monsoon shifts south, disrupting the easterly winds.

Poor winter and spring rains from positive IODs are not just bad for farmers. Those rains also supply much of the run-off that let our rivers run and fill the dams. Heatwaves are more severe and prolonged as soils dry out, removing the cooling function from evaporation, and setting up a busy bushfire season.

England says that while IODs can act independently of the Pacific, the connections remain important. For instance, the so-called Indonesian Throughflow - where warm water from the Pacific funnels its way to the Indian Ocean - could change.

"The predictions are for that to weaken," he says. "If it does, that would be a double whammy of more El Ninos plus more positive-IODs."

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