Sundays at 9.10am, repeated Tuesdays at 7.10pm

A Question of Innocence

Sunday 9 November 2003

Produced by Katrina Bolton

Program Transcript

Rubin Carter: Day after day, week after week, I would sit in that filthy cell, seething. I was furious at everyone. At the two state witnesses who lied, at the police who put them up to it, at the prosecutor who sanctioned it, at the judge who allowed it, at the jury who accepted it, and at my own lawyer, for not being able to defeat it.

Katrina Bolton: As nations around the world demand security and safety, the law and order drums are pounding. Our leaders promise to get tough on crime – to catch those who do us harm, and lock them away.But behind the law and order drums, there’s a new beat – an innocence movement – lawyers, academics and students digging through old crimes and proving the wrong person is behind bars. The movement’s already reached Australia but it started in the United States of America.

Rob Warden: It’s really amazing. There have literally been hundreds of exonerations in the United States. From our death rows alone in the United States there have been more than one hundred people exonerated and released today.

Katrina Bolton: Marvin Anderson, cleared of rape after 15 years behind bars in Virginia, Eddie Joe Lloyd, cleared of murder after 17 years in a Michigan jail, Dennis Williams, cleared of murder after 18 years jail in Illinois….the list keeps growing. And the sight of innocent men walking out of prison is putting a blowtorch to the US justice system. Earlier this year, the outgoing governor of Illinois commuted the sentences of all 167 inmates on the state’s death row. Rob Warden has helped some of these prisoners go free. He heads up the Center on Wrongful Convictions at Northwestern University in Chicago.

Rob Warden: The whole reform movement it driven by the discovery of these innocence cases. Here in the state of Illinois, we’ve been a little more active than most and we’ve had 17, and it’s literally almost 6% of all people who have been sentenced to death under the current law have later been shown to have been innocent. And of course we know that we’re only discovering a tiny fraction of all of the innocent people who are actually incarcerated.

Katrina Bolton: Three innocence-style projects, similar to those that have been so successful in the US, have set up in Australia. And they’re starting to take on cases. A few weeks ago, the movement’s international cause celebre, Rubin Carter, flew to Australia to give these fledgling projects some celebrity publicity.

Applause

Rubin Carter: I spent almost twenty years in prison. Two hundred and forty months, seven thousand, two hundred days, a hundred and seventy-three thousand and two hundred hours. And there were many many times when I was really frustrated by the law, frustrated by the slow pace of the legal system, frustrated at the high cost of defending oneself, and frustrated most of all by a criminal justice system that for twenty years would have tolerated the manipulation of witnesses.

Katrina Bolton: Rubin Carter sums up what this movement is all about. A young black boxer called "The Hurricane” – he’s within spitting distance of the world middleweight crown when he’s arrested and sentenced to three life sentences for a brutal triple murder he says he never committed. There’s an appeal, public rallies…and of course, there’s that song...

That's the story of the Hurricane,
But it won't be over till they clear his name
And give him back the time he's done.
Put in a prison cell, but one time he could-a been
The champion of the world.

Bob Dylan - "Hurricane"

Katrina Bolton: It takes 20 years before a team of crusading citizens uncovers evidence to convince the courts what Rubin Carter’s been claiming all along – he’s innocent. Hollywood makes it a blockbuster.

Film soundtrack

I hereby order Rubin Carter released from prison henceforth from this day forward…

Katrina Bolton: The Innocence movement is propelled by success stories like Rubin Carter’s. But it’s also being propelled by DNA technology, and the alluring prospect of determining guilt or innocence once and for all. In Australia, Federal Justice Minister Chris Ellison has been talking up the technology’s potential.

Minister Chris Ellison: Well I think DNA has been the most stark example where technology and science can prove quite definitively that the person has been wrongly convicted. DNA has been a great step forward in the administration of justice. Of course it’s not only about convicting the guilty, it’s also about exonerating the innocent.

Katrina Bolton: The promise of DNA freeing the innocent as well as convicting the guilty has been repeated by politicians across Australia, usually while DNA laws are being expanded. The promise was made as a national DNA database, ‘Crimtrac’ was created, and it was made as NSW introduced legislation giving unprecedented powers to take DNA samples from prisoners, by force if necessary.

The DNA database is already being used to help convict the guilty. But so far, when it comes to using DNA to free the innocent, the wheels of justice are grinding much more slowly.

No one is claiming the scale of exonerations seen in America will be repeated in Australia. But, equally, no one is claiming the justice system is infallible.

Applause

Rubin Carter: I am indeed honoured…

Katrina Bolton: And when he was in Queensland a few weeks ago, the champion of this international movement, Rubin Carter, was singing the praise of one of the women who’ll be instrumental in investigating claims of innocence here.

Rubin Carter: And particularly my dear and wonderful friend, the director, the executive director of the Griffith Innocence Project, Lynne Weathered…

Katrina Bolton: Lynne Weathered is also the executive director of the newly established Australian Innocence Network. She says only a small percentage of people in jail actively claim innocence.

Lynne Weathered: We’re not naïve enough to think that everyone writing to us is going to be actually innocent of the crime and we’re not saying that there are large numbers of people in our prisons that are innocent. We think the system gets it right pretty much most of the time. But we have our own cases, known cases, of wrongful conviction here. So I guess what I am essentially saying is we can’t just ignore everybody’s claim of innocence because we think that some of those claims are, are false.

Katrina Bolton: Lynne Weathered says the legal system just isn’t structured to deal with claims of innocence once the trial process is over.

Lynne Weathered: What you have is generally a one-month time limit between your conviction and when you have to apply for an appeal. But it’s highly unlikely that any kind of new evidence of their innocence will be available at that appeal. Experience in the United States has shown that it takes sometimes between four and ten years for investigations to actually uncover that evidence of innocence. So what you’ve got here is then someone who’s found evidence of innocence, alright, so lets say they had their appeal, they lost their appeal, they write to an innocence project or they have a pro-bono lawyer or whoever working on their behalf and they uncover this evidence of innocence. What our current system says is you don’t have the right to a further appeal on that because courts have only jurisdiction to hear one appeal. So your option therefore you would think would be to go to the High Court. But the current interpretation of the law is that the High Court can’t receive fresh evidence. And so it doesn’t have the jurisdiction to hear appeals based on innocence, because appeals based on innocence will be based on fresh evidence of innocence.

Katrina Bolton: Lynne Weathered’s university project has volunteer students and lawyers dedicating what time they can to reinvestigating old cases. So far the only official body to review claims of innocence was in NSW, where it was announced by the premier, Bob Carr.

Premier Bob Carr: We will form an Innocence Panel comprising representatives of police, the Director of Public Prosecutions, the Privacy Commissioner and victims of crime. We’re going to enable that panel to receive applications from prisoners who argue that DNA might establish a wrongful conviction. The purpose of the panel is to look at the material, to look at the claim and where it thinks the prisoner might have a reasonable case, to send that into the court system.

Katrina Bolton: The panel swiftly ran aground. It’s currently suspended and a review into its operations is before the Police Minister John Watkins. He’s not talking about it yet, and no one who is on the panel is allowed to speak either. But the state’s former Privacy Commissioner, Chris Puplick is able to talk. He was on the panel up until a few months before its suspension.

Chris Puplick: The first I heard of it was when a journalist rang me and said, "did you know the minister for police has just answered a question in the parliament today saying that an Innocence Panel is being set up to review convictions where new DNA evidence has come to light, and that you as privacy commissioner are a member of that new panel?". That was the first I had heard of the process and I think probably the first most people heard of it.

Katrina Bolton: When news of the official panel reached Kirsten Edwards, director of an Innocence Project based at the University of Technology in Sydney, she initially wondered whether it would leave her and her law students with nothing to do. But she says that impression quickly faded.

Kirsten Edwards: A lot of people were concerned that there were a lot of people from the DPP, a lot of people from the police and stuff, and that it was under the auspices of the police ministry, which certainly was a very bad look in terms of talking to prisoners. They’d say it’s run by the police ministry, you’ve got to be joking, and it was hard to assuage their doubts in those respects, although the list of people they created, I think they’re decent people, I think they’re all intelligent people, and I think they’re all fair people and I don’t’ think they were necessarily carrying the badge of their office in a particularly partisan way, but I couldn’t work out what they were supposed to do.

Katrina Bolton: Behind the closed doors of the Innocence Panel, even the members were struggling to work out how exactly the panel would operate. Former member, Chris Puplick.

Chris Puplick: The failure to have the panel established in a statutory fashion meant the panel had to make up its own rules rather than have the elected parliament give it the rules by which it should operate. So the panel decided, for example to limit initially the crimes to serious crimes that came under the Serious Offenders Review Council. But it would have been better if the parliament had said: “these are the crimes the panel should deal with”.

Katrina Bolton: And there were other issues. Chris Puplick says the panel members needed to be indemnified, so they couldn’t be sued if they made a decision that was later overturned. And they also had to study up on DNA science and the workings of the legal system. All in all, it took more than two years from when the panel was first mentioned, to when it started taking applications. And then the bomb dropped.

Newsreader Tony Eastley

A man serving a life term for one of the state’s most notorious murders is again pressing for his release. And he has the support of a state MP. The case was the rape, abduction and murder of Sydney woman Janine Balding 15 years ago.

Katrina Bolton: Stephen Wayne Jamieson, one of three men convicted of one of the country’s most brutal murders, applied to the Innocence Panel. For Jamieson, the legal system has been made political, and very personal. In 2001, special legislation was passed to make sure he and nine other men never get out of jail. But his lawyer, crusading MP Peter Breen, says he’s convinced “Shorty”, as he’s known, is innocent. Peter Breen was elected on a platform of legal reform. He first became involved in Shorty Jamieson’s case when visiting one of the other men convicted of Janine Balding’s murder.

Peter Breen: And in the course of our discussions, he said that, "oh, and of course Shorty Jamieson’s innocent you know..."

And I said - "beg your pardon, what do you mean, he’s innocent?" I said "he’s been convicted by a jury and he’s been in jail for fourteen years. How’s he innocent?"

And you know I was dumbstruck really. And so he said "well, he wasn’t there, the guy that was there was this guy Shorty Wells, you know. And when we were all arrested after the murder and they brought in Shorty Jamieson, we all laughed and said to the coppers, ha ha you’ve got the wrong Shorty. But the coppers told us they didn’t have the wrong Shorty, and consequently he went to trial and was convicted."

Katrina Bolton: MP Peter Breen. And a warning here, the next few minutes contain disturbing details of the case. Shorty Jamieson was not convicted on forensic evidence. He was convicted on the testimony of an eyewitness who said he seen him with the co-offenders after the attack, the testimony of a prison informant who’s since died, and the transcript of a police interview, signed by Jamieson but disputed by his defence lawyers in court. And despite the lack of forensic evidence, Jamieson was the only person convicted of anal intercourse with Janine Balding. He applied to the Innocence Panel to have her underwear, and swabs from the rape kit tested for DNA.

It forced the innocence panel to make a decision about one of the issues that divided them most – what to do about the victims and their families. Former Innocence Panel member, Chris Puplick.

Chris Puplick: It’s going to be very stressful for them, for many of them they will have closed the case, they will have affected some form of closure, and then two or three years later somebody comes back and wants to reopen the case. At what point do you tell the person who is the victim or the family of the victim, that you’re reconsidering?

Katrina Bolton: There’s an argument that Innocence Panels serve victims’ interests too, because if an innocent person is sitting in jail, the real perpetrator is going free – and there’s no way any victim or their family wants that. But so far the only family that’s had to deal with the reality of the Innocence Panel is the family of Janine Balding. And Janine’s mother Bev doesn’t feel the Innocence Panel serves her family’s interests at all. She’s convinced Shorty Jamieson is guilty.

Bev Balding: Oh I just think it’s a waste of money, a waste of time, I mean how many more trials and how many more things have we got to put Jamieson through? He’s been through so much, as far as I’m concerned he’s the guilty party and let him serve his time. He’s done the crime and let him serve his time.

Katrina Bolton: What if the DNA testing supported his claim that he wasn’t there?

Bev Balding: Well I think he should stay where he is, as far as I’m concerned. How may more judges and how many more people have we got to, you know, bring into this to try and prove that he’s innocent. What’s he going to do – come out and commit another crime and kill another girl, do we want that to happen to some other mother’s daughter?

Katrina Bolton: Do you think there is a place for something like an Innocence Panel Bev?

Bev Balding: No I don’t. I think you know, what goes through the court, there’s nothing new to come up with, he’s got nothing new, and why bring all this back up again?

Katrina Bolton: Bev Balding, who’s daughter Janine was raped and murdered in 1988. Earlier this year, the Innocence Panel went ahead, recommending the new DNA tests be carried out. Shorty Jamieson’s lawyer, Peter Breen.

Peter Breen: And then of course we waited for the results and waited and waited and eventually the results came through simultaneously with an announcement that the Innocence Panel would suspended. And you know I didn’t even know that we had a result, or I didn’t know about the suspension either, except that the Daily Telegraph rang me and said "do you represent Stephen Jamieson?" "Yes." "Did you know that his case before the Innocence Panel caused it to be suspended?" I said "Excuse me ?" – they said "well Mr Watkins has published a press release and said that Mr Jamieson’s case before the Innocence Panel is a matter of great concern because of the effect on the family of the victim and as a result of issues raised in the Jamieson case that they hadn’t considered, the panel would henceforth be suspended. "

Katrina Bolton: All of a sudden, the situation reads very differently. The DNA test results showed evidence of two people, and Shorty Jamieson was not one of them. So the Innocence Panel is suspended, but a convicted killer sits in jail with a letter confirming DNA evidence points to someone else. Shorty Jamieson has now got independent legal advice, and is seeking a judicial inquiry.

Katrina Bolton: The problems of the Innocence Panel go much deeper than one controversial case. Kirsten Edwards, who directs a university Innocence Project in NSW, says the panel fundamentally misunderstood the way DNA evidence works.

Kirsten Edwards: The way the panel ended up being run, kind of assumed that the way DNA evidence worked was you had a piece of DNA evidence which told you the answer, and the simple question was do you match it up to the prisoner and do you get a yes or no, and if it’s a yes they then stay in jail and if it’s a no we all go home. Now DNA evidence is so much more complicated than that.

Katrina Bolton: Kirsten Edwards says DNA rarely provides a clear cut answer.

Kirsten Edwards: Well it’s a piece of evidence, it’s just that. Sometimes it’s a really really valuable piece of evidence. Sometimes it’s a bordering on completely useless piece of evidence. I mean if you’ve been charged with raping your stepdaughter and she gets pregnant, DNA testing the baby, well obviously that’s going to blow the whole case wide open, it’s going to give you an answer yes or no. If it’s your baby, or the profile at least comes close to matching you, we’re looking like something that’s very close to important. And obviously so with rape cases. But it’s also used a lot of the time when people find a coffee cup at the scene of the crime, or a cigarette butt, or a t-shirt, or any sort of biological trace of a person that’s left a crime scene and it links them to the crime scene. But people might have many reasons to be at the crime scene. If you’re charged with murdering your wife, and they find a coffee cup at the scene of the crime with your DNA on it, obviously it doesn’t prove that you murdered your wife, it proves that you drink coffee at your house.

Katrina Bolton: If you’re testing, as many of these cases do, tiny things, like hairs, saliva or bits of skin, investigation becomes even more difficult, according to Dr Jeremy Gans. He’s a senior law lecturer at Melbourne University.

Dr. Jeremy Gans: DNA profiling cannot tell you anything more about that bodily sample than the likelihood that it came from the person the police are holding in custody. It cannot tell the police how that bodily sample came to be there, what the person that left the bodily sample there was doing at the time, whether they were there for an innocent purpose, or whether they were committing a crime. So this means that in the case of a person trying to show that they are innocent, by proving that a bodily sample from the crime scene came from someone else, that person hasn’t proven that they’re innocent, all they’ve proven is that someone else was once at the crime scene.

Sound of machines clunking

Katrina Bolton: DNA equipment now routinely works on sample sizes no bigger than a full stop. It means that when you’re going back and DNA testing old evidence, it’s possible to pick up lots of DNA profiles. Dr Jermey Gans says that’s not always a good thing.

Dr. Jeremy Gans: Well probably a rule of thumb of thumb is that the smaller the sample, the harder it is to work out how it got to be there, why it was there, and whether it is significant to an investigation. If you have a massive pool of blood and you’re dealing with a murder or a very violent crime, then chances are that blood came to be there for some reason related to the crime, and if you rule out the victim’s blood, maybe this is the perpetrator’s blood. But if you’re talking about small samples, bits of skin, a little bit of hair, well those things can end up at particular locations for all sorts of reasons. The smaller they are, the more reasons you can think of.

Katrina Bolton: Does it mean also that it ends up drawing in potentially more people into a new investigation of why those people were all at a crime scene?

Dr Jeremy Gans: Well one developing area of DNA technology is the hope that police will be able to walk into a crime scene, point around some kind of scanner, link to a database, and immediately come up with a list of every person who’s ever been at that crime scene. Now unless you’re talking about a very private spot, there’s likely to be hundreds, thousands of people who have been at the crime scene at some point and have left a bit of their body there. All those people will automatically end up on a police list. Some of them will be police officers themselves, have been at the crime scene, were involved in the investigation. Others will have obvious reasons for having been at the scene of the crime and can be ruled out easily. And then there will be a mystery list which if the police are doing their job, they’ll want to go through one at a time to work out which of them could be the person that did the crime.

Katrina Bolton: That means that if you’re retesting DNA, a whole lot of people stand to be dragged in to a reinvestigation. And it raises the question of who should be told whose DNA profiles have been discovered. Kirsten Edwards, who’s been helping prisoners with their applications to the Innocence Panel, says it’s information that can’t be kept secret.

Kirsten Edwards: There a number of people you could say have a legitimate interest to know, but the primary one of course would be the prisoner and anybody else who is helping the prisoner, whether it’s a lawyer or a friend or an Innocence Project like mine or someone like that. Right now, nobody’s told. The only people who are told are the Innocence Panel. And the Innocence Panel doesn’t, well, doesn’t even really exist any more. But there are some cases where people have been told, we’ve tested a profile, the profile doesn’t match you, it does match somebody else, we know who that somebody else is, but we’re not going to tell you. Have a nice day, yours sincerely the innocence panel. And you can imagine the response that that’s getting out at, well amongst the prisoners who are applying to that panel. I can’t see on what basis you can keep that information to yourself.

Katrina Bolton: It does though start to raise some very interesting questions of privacy doesn’t it, when, when the DNA technology is so sensitive that you can come up with a profile who may have been the victim’s lover, sister, friend, all those sorts of people start getting drawn in don’t they, and known to the convicted person?

Kirsten Edwards: Well it does and, and these things have to be dealt with in a sensitive manner. But first of all we’ve got to think about what the stakes here, you’re talking about the possibility of an innocent man being in jail, and you’ve got to weigh up the privacy issues in that context. And obviously, I mean depending on the circumstances, if you’ve got somebody who’s been raped and you know there’s a semen that’s linked to somebody else, we need to know who that person is. Privacy is routinely infringed in any sort of criminal investigation. Remember before somebody is put in jail, nobody’s privacy is respected, there’s no right to privacy against a criminal investigation. The question is now, what do we do post conviction?

Katrina Bolton: Inside one of the country’s high security jails, another prisoner with an application to the Innocence Panel has been watching and waiting. His name is Noel Han. In 1994 he was convicted of murdering a fellow worker. The victim was found dead in his home, seemingly after a fight. Hairs were found in the dead man’s hand. Noel says he had been in the victim’s flat, when two men burst in and demanded he leave.

Noel Han wanted to speak with Background Briefing about his experience with the Innocence Panel. But he wasn’t allowed. The Corrective Services Department, Corrective Services Commissioner and the NSW Justice Minister all refused to allow us an interview, although Noel Han’s claim of innocence is known, and his application to the Panel was not considered vexatious.

It’s left to his lawyer, Marina Voncina, to tell his story. She’s been a lawyer for twenty years, and runs her own busy law practice in Western Sydney. She says Noel Han has a compelling case.

Marina Voncina: Noel had been interviewed by the police a few days after the murder and in course of the interview he informed the police that two men had come to the flat while he was with the deceased. Basically he was forced to leave the flat at that point of time and deceased and these two men were still in the flat when he left. Now he gave a description to the detective who was involved in that matter of two men. Basically he was asked to identify their hair colour by the detective, and he did, one of them being light brown and one slightly lighter in colour than that. At the time he was interviewed by the detective he wasn’t aware of any post mortem examination by any doctor. He wasn’t aware of the hair fibres or anything at all that may have been found at the scene. So he basically voluntarily participated in an interview with the detective. At time he participated in the interview with the detective, the detective was aware that two days earlier, the doctor who’d carried out the postmortem, had discovered on the deceased’s body, in his hand and in an area behind the back of his elbows, in dried blood, two different types of hair fibres. Now Noel is an Australian born Chinese and he has straight black hair. The hair fibres found on the deceased’s body was consistent with the hair colour of the two men that Noel told the police had come into the flat of the deceased on the same day that the deceased was, died, you know, was found dead in his flat.

Katrina Bolton: So, hair fibres found in the victim’s hand clearly didn’t match Noel Han - the man on trial for murder. But Marina Voncina says the hairs were never shown to the jury.

Marina Voncina: To be convicted of an offence, the jury has to be satisfied beyond reasonable doubt, in other words, they don’t know any of the legal arguments that take place while they’re out of the room. They don’t know the history, they don’t know any discussions by any of the parties. They only are limited to hear the evidence in court. Now the evidence in court did not bring to jury’s attention these other hair fibres. It was discussed in court, the hair fibres, but they were never presented in court as exhibit for the jury to examine and to look at. What the police tried to indicate was that those hair fibres were probably picked up from hair fibres on the ground on the carpet. But there were no photographs at all to show hair fibres on the carpet, and one would expect that if there were hair fibres on the carpet, that it would not have been limited to only to the blood that was on the hands and elbows of deceased, but other parts of the deceased’s body, either in his clothing or other parts of his body where there was blood.

Katrina Bolton: Marina Voncina wasn’t Noel Han’s lawyer at the time of his trial. She does what she can now, pro bono. She helped him apply to the Innocence Panel late last year, asking for the hairs to be DNA tested. Seven months later, Noel Han received this letter.

The Panel reviewed the final results of the search for the fibres (and) hairs identified in your application, at its meeting of 20 June 2003. NSW Police confirmed that these items were authorised for destruction on 26 May 1997, and were subsequently destroyed on the 31 July 1997. I regret that the panel is unable to assist you.

Yours faithfully,

Mervyn Findlay

Katrina Bolton: It was a devastating blow – and Marina Voncina says any chance Noel Han had of proving his claim of innocence, is gone.

Marina Voncina: If Noel knew that he had to continue to serve his sentence and even at the end of the sentence was found to be innocent, I think he could live, you know, accept that to a large degree, because at least his innocence would be proved. The fact that he can’t even do that now, no matter how much time he serves in prison, at the end of the day, there is no way that he’ll be, you know, able to prove to everyone that he didn’t commit this offence, because his only chance of doing that is really gone because there is no evidence.

Katrina Bolton: Noel Han won’t be released from Prison until 2009. And he isn’t the only prisoner to discover evidence is gone forever. Even today, everywhere except NSW, where there’s a moratorium, crime scene evidence is still being destroyed. What police guidelines there are demand that at the conclusion an appeal period, usually 28 days after conviction, evidence must be returned to its owners, or destroyed. In fact, in Victoria, keeping evidence can be an offence.

Katrina Bolton: You’re listening to Background Briefing on ABC Radio National. Today we’re looking at wrongful conviction and the problems with proving claims of innocence.

Katrina Bolton: There has been an official review into what went wrong with the NSW Innocence Panel. That review had difficulties of its own. At least three key submissions were never considered, because the Panel moved offices and didn’t have the mail forwarded. But the review is finished, and it’s been with the state’s Police Minister since mid September.

There are a lot of people anxious to see what it says, among them, the Federal Justice Minster Chris Ellison. He says a national body to review claims of innocence is being considered.

Minister Chris Ellison: Yes we’re watching the progress of this project in NSW with great interest. This has been raised at the Standing Committee of Attorneys General and a working group is looking at this very question. I think we have to have a considered response to this proposal and on a national basis, we would need to have the cooperation of the states and territories.

Katrina Bolton: Is there agreement from the states and territories now on some kind of body looking at post conviction review?

Minister Chris Ellison: Well there are different views in relation to this and that’s the issue. NSW is the only state that has embarked upon this project of an Innocence Panel and there has been as I understand it at the officials level, differing views in relation to how this could be pursued.

Katrina Bolton: Are there actually any states or territories who are opposed to the idea of a national innocence review body?

Minister Chris Ellison: Well we’ve not had, and this is something we’re looking at at the moment at the federal level, we’ve not had any expression of opposition to such a mechanism. The issue will be in the detail and how you implement it. But certainly that’s something that, it’s being considered by the Standing Committee of Attorney’s General and the Australasian Police Ministers Council and we’re looking forward to a report on that early in the new year.

Crowd cheering

Man speaking

The police told us from the start that they knew we hadn’t done it. They told us they didn’t care who’d done it. They told us that we were selected and that they were going to frame us, just to keep the people in there happy. That’s what it’s all about. Justice. Justice. I don’t think them people in there have got the intelligence nor the honesty to spell the word, never mind dispense it. They’re rotten.

Newsreader

Police forensic tests at the time also proved, they thought, that the men had handled explosives. It’s now known that someone who’s handled cigarettes can give the same result. But most disappointing of all, three judges of the appeal court threw out a similar appeal three years ago, largely because they refused to believe their system could be so corrupt, and so wrong.

Katrina Bolton: The spectacular exonerations of the Guilford 4 and the Birmingham 6 blasted open the British Justice System – forcing serious change, including setting up a Criminal Cases Review Commission, an independent body with powers set in law. It’s seen the convictions of more than one hundred people quashed. David Jessel is a member of the review commission. He says there was recognition things had to change.

David Jessel: The CCRC was really set up as a result of a Royal Commission, and the Royal Commission was set up because there had been so many scandals in high profile cases, and even the lawyers themselves decided to say, they came to the conclusion something really had to be changed in the system. Up till then it was really a Home Office executive decision whether a case should be referred back to appeal a second time. But there were problems with that clearly. There wasn’t a great incentive by government departments to to stir up the waters of the judicial system. And so the Royal Commission that grew out of those scandals in justice, recommended the setting up on an independent body.

Katrina Bolton: CCRC member David Jessel says very few of the overturned convictions have been cut and cut and dried in scientific terms.

David Jessel: A lot of our cases have to do with other witnesses that weren’t brought forward, or mistakes in the trial process, or things like that, or forensics scientific evidence of a different sort, or medical evidence that was misinterpreted or you know was not adequately probed, that sort of thing. And so we go way, way beyond just simply the remit of DNA.

Katrina Bolton: David Jessel says if a system looks only at DNA cases, they’d be missing a lot.

David Jessel: If they were looking just at DNA cases, oh good heavens yes. I mean our experience, how long have we been going, about six years now the commission, have sort of opened a whole treasury of information about how when things go wrong in the criminal justice system, why things go wrong. I mean we are if nothing else we are a wonderful repository of all the reasons why things go wrong and things will always go wrong in a man made system that is run by human beings and the criminal justice system is exactly that.

Katrina Bolton: In Australia, the focus is exclusively on DNA. And while it’s already clear that only a small proportion of claims of innocence involve DNA, Federal Justice Minister Chris Ellison says there has to be a line drawn.

Minister Chris Ellison: Well you have to remember that you’ve got to stop somewhere. And the verdict of a jury is a finding of guilt, if it is a guilty finding. There are appeal mechanisms and our system provides for that. Now you have to have some finality. If you say well look, a jury’s finding is not as final as all that and even the appeal process is not as final as all that and anyone who says that they’ve been wrongly convicted we’ll fund at taxpayers expense to mount challenges, you then build into the system an uncertainty which does no service to anyone.

Katrina Bolton: It leaves people like George, out in the cold. George asked us not to use his real name. He’s already served his sentence and is out of jail. He speaking softly, partly because he’s afraid his neighbours will overhear. George used to drive a taxi, taking children to and from school – that is, until two of the children, first a girl, then a boy, accused him of sexual assault. George says the first lot of allegations were wildly implausible. And a warning - the case you’re about to hear contains some sexually explicit information.

George: She alleged that I took her to a house where there were seven men hanging around, with their, standing around drinking beer with their doodles hanging out. Now that’s absolutely bizarre of course but this house was allegedly only five minutes from her place. Then I was alleged to have taken her and a boy to a house where there was another man and I ordered this man to rape her. And he attempted to, but he couldn’t. So they had to say that because the girl’s virgo intacto, despite the fact that I was found guilty of maintaining a sexual relationship with her she was still virgo intacto of course, because it didn’t happen. But I was never interviewed by ‘em, never did any, was any attempt made to find this man. Now if I ordered a man to rape any of your daughters, do you think you might want to find that man?

Katrina Bolton: George says the second lot of allegations, from the young boy, were equally implausible.

George: I was alleged to have for example, raped him in the front seat of my cab by lifting him off the passenger seat and placing him on my, how do I say it? Penis. While I’m sitting in the driver’s seat. Now I’m a pretty big fella, and my stomach actually rubs against the steering wheel when I’m driving. Now it was just a physical impossibility.

Katrina Bolton: George went to trial and was convicted over the girl’s allegations, and then faced a second trial over the allegations raised by the young boy. An alleged attack in a graveyard was central to both trials. But at the second trial, evidence about that alleged attack came out that caused most of the case to collapse. George wanted his conviction to be reassessed, in light of what had come out at the second trial.

But the High Court refused to allow an appeal, saying what had come out at the second trial didn’t qualify as fresh evidence.

George now lives with the fear of being outed as a convicted paedophile. He’s desperate for a retrial and his case has been taken on by a University Innocence Project.

Katrina Bolton: With the Innocence Panel suspended and no plans for any review body looking beyond DNA, claims of innocence are being left to the crusaders. West Australian man John Button was convicted of murdering his girlfriend Rosemary more than thirty years ago. Once out of jail, he still wanted to clear his name.

John Button: I think the whole world turned against me. I had no friends. Nobody wanted to know me, so from that point I wanted to get my story out and allow the world to see what had really happened.

Katrina Bolton: John Button managed to get former journalist Estelle Blackburn to reinvestigate his case. She left nothing to chance.

Estelle Blackburn: So I read every single newspaper I read every Hansard, I read every law report. I read every file. I got hold of every single file I needed. Then I decided to find every single person mentioned in any of these reports or files. It was a very long process. I started at the cemeteries. I rang major cemeteries here and asked when somebody’s funeral date was, if they gave me a funeral date I knew I could cross them off my list. I started off at the electoral rolls of the 50’s and 60’s and compared them with current electoral rolls. I went through old telephone books of the 50’s and 60’s comparing all the old electoral rolls with the current telephone books. I rang everybody with that surname around Australia, if I didn’t get a match any other way. And I walked up and down streets knocking on doors saying do you know where so and so lived 35 years ago, do you know who they married, do you know where their parents are, do you know where they moved to? It was a, it was a long foot-slogging exercise.

Katrina Bolton: Estelle Blackburn says the only brick wall she hit was the police officers who’d investigated the case.

Estelle Blackburn: The two people would not speak to me were the two police officers who gained the confession from John Button. Nope, no way were they going to say anything to somebody rubbishing around and causing trouble for them .

Katrina Bolton: What do they say now?

Estelle Blackburn: The same. They are still saying that he did it. And certainly there’s no admission of any wrongdoing on their parts.

Katrina Bolton: Estelle Blackburn’s crusade cost her her job, her share portfolio, and her house. And Estelle says she might not have succeeded, if the Police Commissoner hadn’t granted her access to official files.

Estelle Blackburn: But I do think perhaps the Police Commissioner in granting it really thought that what it would do would be to shore up their position. Investigating it I would find that they were indeed correct. And he had every right to think that, the highest judges in the land had backed up the police and said that they were correct and dismissed two appeals. So I think that he thought that it wasn’t going to cause any trouble.

Katrina Bolton: She says the police reaction now is very different when they’re asked for information about a case.

Estelle Blackburn: Now you have to and again I have other cases, you have to apply for it under F.O.I. But they can very easily say no to that, it’s an ongoing operation. Police files are closed to the public for 50 years. If they refuse F.O.I. which they can do very easily, there is no hope.

Katrina Bolton: Reluctance to ever admit the wrong person went to jail is a feature of justice systems around the world. Rob Warden heads an Innocence Project at Northwestern University in Chicago. He says despite the hundreds of exonerations in the US, proving innocence still takes years.

Rob Warden: There is tremendous opposition. Sometimes we can’t believe the lengths to which prosecutors will go to defend their convictions. Even when it seems to become absolutely obvious to everyone, they will fight to the last breath.

Katrina Bolton: Rob Warden says when DNA evidence is found not to match, the police and prosecution simply change their theories.

Rob Warden: We have a very famous case going in New York right now, called the Central Park jogger case. A young woman was raped and beaten senseless. they now have a confession from the man who actually did it. But a group of teenagers have been convicted of this crime. The DNA exonerates the teenagers, implicates the person who has now confessed, and yet the prosecutor is saying well they must all have committed it together. It’s ridiculous. I mean there’s a great age difference in these people, this older man who actually committed the crime didn’t hang out with these teenagers. There’s no evidence that he knew them. And of course his confession excludes them absolutely. Those are the kinds of tortured excuses that prosecutors sometimes come up with to defend their convictions in these cases.

Katrina Bolton: When some is found to have been wrongfully convicted, there is the difficult issue of compensation. Right now there are no clear cut guidelines as to who gets paid and how much. Lindy Chamberlain and her husband got $1.3 million, for her three and a half years in jail. Wrongly convicted Hilton bomber Tim Anderson got $100,000 for 10 years jail. And others have got absolutely nothing. And that can lead to unintended consequences. Bernie Matthews was a convicted criminal who had served his time and was going straight, when he was arrested for something he hadn’t done.

Bernie Matthews: What happened I was at home and a taskforce called taskforce Magnum came to my home and arrested me. There were two detectives from Queensland and he showed me an extradition warrant and said well, you’re going back to or you’re going to Queensland over an armoured van robbery that occurred in 1990 and three-quarters of a million dollars was stolen.

Katrina Bolton: For Bernie Matthews, things went from bad, to disastrous. He was charged with three counts of robbery with violence, and three counts of attempted murder – enough to put him away forever. And he was alleged to have confessed all. Here’s what he says happened with the police.

Bernie Matthews: This Sydney detective came up to Queensland and gave evidence on oath, swore to tell the truth, the whole truth and nothing but the truth then lied his head off. Plus they had a criminal informant that also gave evidence virtually alleging that I’d robbed the armoured van and I had money and I had guns etc. etc. it was all lies but at that particular point in time, it was their word against mine, and they had the numbers on their side and they had the law enforcement numbers on their side.

Katrina Bolton: A stroke of luck stopped Bernie Matthews from spending the rest of his life in jail. Two men were arrested for a series of armoured van robberies, including the one Bernie Matthews had allegedly confessed to. Bernie Matthews was freed, but getting any compensation for the year he’d spent in jail was to prove a lot harder. And after five years of being shuttled between one jurisdiction and another, Bernie Matthews snapped, and figured if the system wasn’t going to help him, he’d take on the system. He went out and robbed a bank.

Bernie Matthews: It was a National Australia Bank in the heart of Brisbane, there was another guy with me, ah we took over the whole bank ah, and we took the vault as well. Unfortunately we robbed the bank on the day that the, it’s National Police Remembrance Day. So when we run out of the bank and we gone to get changed, about 30,000 coppers are falling out of the sky, because they’re marching in the next street when the alarm went up.

Katrina Bolton: Fortunately for Bernie Matthews, the judge deducted the time he’d wrongfully spent in jail off his new sentence for robbing the bank. And while there’s a lighter side to his case, most of the claims of wrongful conviction concern horrendous crimes – rapes, murders, and even serial murders. Dealing with them is inherently uncomfortable.

It’s a critical time for addressing claims our justice system got it wrong. A national innocence body is being considered and the review of the now suspended NSW Innocence Panel is due for release any day. Kirsten Edwards, director of the UTS innocence project, says this is one issue that can’t be left to slip away.

Kirsten Edwards: What we need first of all is a legislative framework with respect to DNA and other biological evidence which sorts the whole thing out. And we need that done quickly. It’s not good enough to have endless promises, endless reviews, endless commissions making endless inquiries. We need something right now, because we’re dealing with people that want to get out of jail, right now. And that legislation needs to say, DNA evidence, we’ve got to keep it, you can’t just chuck it away. If you want to access it, this is where it’s going to be, this is how you get hold if it, this is how you can test it. And make that transparent, make that accountable, make that something that anybody can follow, and put it down in law, so that if people if they don’t follow it, there are sanctions. With respect to people who are innocent who want to get out of jail, what we need is what they have in the United Kingdom. We need a Criminal Cases Review Commission, which is a one-stop shop where people get the DNA evidence, they get the witness interviews, they have the entire evidence holistically focused on together, and then they get that referred back into the court of criminal appeal, rather than parcelling off every individual innocence issue into its own separate area where it gets lost through the cracks.

Katrina Bolton: Linda McGinness is Background Briefing’s Co-ordinating Producer, Technical Production was by Russell Stapleton, Research by Paul Bolger.The Web Coordinator is Richard Gracia. Amanda Armstrong is this week’s Executive Producer. I’m Katrina Bolton. And you’re listening to Radio National.