Viewing entries posted in August 2012
The final line-up for the UTAS Alumni debate has now been sorted. I am in an all-female "legal eagle" team. My fellow team members are Kim Backhouse, a corporate governance lawyer from UTAS, and Lizzie O'Shea, a social justice lawyer working at Maurice Blackburn in Melbourne. The Motion to be debated is: The House moves that sometimes a good citizen must disobey the law. I will be arguing for the motion, which I think is the easier task for a number of very valid reasons. The MC for the night will be Roison McCann from the ABC. Further details of the event (which will be held at 7 pm on Wednesday 12 September 2012 at the UTAS Inveresk Campus at Launceston) can be found here http://www.utasalumni.org.au/events?cid=1&ceid=135&cerid=0&cdt=12%2f09%2f2012 The event is free of charge.
In preparing for my ANZFSS keynote address next month, I am researching cases where forensic science contributed to a proven miscarriage of justice. A striking example is the Victorian case of Farah Jama. Mr Jama (originally from Sudan) was convicted in 2008 of raping a woman in the toilets of a nightclub in Melbourne's outer-eastern suburbs after the victim was found unconscious. She had no memory of the crime but Mr Jama's DNA was later found on the victim. The 20 year old denied ever being near the nightclub on that night, saying he was reading his Koran to his critically ill father at his bedside at their home. The judge and jury did not buy his alibi, despite supporting evidence from his father, brother and friend. The only evidence police had was the Jama DNA sample, which was coincidentally taken 24 hours before the alleged crime, after he was investigated over another unrelated matter but not charged. The forensic scientist at trial stated that there was a one in 800 billion chance that the DNA belonged to someone other than the accused man. The same forensic medical officer who took the first DNA sample from Mr Jama had also taken the DNA sample from the rape victim 24 hours later. It later emerged that the officer had not adhered to strict procedure when taking the sample and the prosecution could therefore not exclude the possibility of contamination. The Victorian Court of Appeal found that the guilty verdict was unsafe and should be quashed. Mr Jama had spent 16 months in custody. Prosecutors apparently admitted that there had been a "serious miscarriage of justice".
Yesterday, the High Court found that Dr Patel had been the subject of a miscarriage of justice due to the way the Prosecution had presented its case. For more details see http://www.theaustralian.com.au/news/nation/patel-freed-on-high-court-appeal/story-e6frg6nf-1226457726132. This result will no doubt generate considerable public debate.
In preparing my paper for the upcoming Corruption Prevention Network forum in Sydney, I had cause to carefully study the NSW Court of Criminal Appeal decision in Gordon Wood's case (Wood v R  NSWCCA 21 (24 February 2012)). I was particularly interested in the comments of the Court relating to the way in which the prosecution case had been presented. The decision of the Court saw Gordon Wood acquitted and immediately released from gaol. There were nine grounds of appeal. Ground 6 was that the trial miscarried "by reason of the prejudice occasioned by the Crown prosecutor". The prosecutor in the case was Mark Tedeschi QC who for more than two decades has been the "star performer" (Cornwall 2012) at the most infamous murder trials in the country such as those of Ivan Milat and Keli Lane. Deborah Cornwall of the ABC reported on 12 March 2012 (see http://www.abc,net.au/7.30/content/2012/s3451591.htm):
FORMER Queensland surgeon Jayant Patel will learn today at midday whether the High Court has quashed his manslaughter convictions for the deaths of three men. Patel was sentenced to seven years' jail in July 2010 after a Brisbane Supreme Court jury found him guilty of manslaughter. The charges relate to Patel's time as a surgeon at the Bundaberg Base Hospital between March 2003 and April 2005. Patel took the matter to the Court of Appeal in Brisbane in 2011. When that failed, his lawyers fronted the High Court earlier this year in a last-ditch bid to clear his name. Barrister Liam Kelly SC argued the convictions should be quashed because Patel's trial "went off the rails". He submitted the legislation used to prosecute Patel had been wrongly interpreted and that the Crown's decision to change its case part-way through the trial meant the jury had already heard "a wealth of prejudicial material" that it could not use. However, the Queensland Solicitor-General argued that there was no miscarriage of justice because the legislation was "sufficiently wide" to encompass Patel's decision to operate. The Crown had, from the start, made it clear a strong part of the case against Patel was that he shouldn't have performed the operations because they were unnecessary and dangerous, and other safer alternatives were available. The Crown rejected claims that particulars provided about the allegations were "confusing". See http://www.heraldsun.com.au/news/breaking-news/court-to-rule-on-ex-surgeon-patels-appeal/story-e6frf7kf-1226456621265
I spoke with the Registry of the High Court yesterday and the hearing for the special leave to appeal application will be held in Canberra at 9.30 am on Friday 7 September 2012 (although the actual listing time for the day may change). I will be attending the hearing in Canberra, even though the whole hearing could be over in less than 30 minutes. Obviously, the High Court's decision in the matter will be absolutely critical to determining future directions in the case.
Interesting article in today's The Australian at http://www.theaustralian.com.au/news/nation/crime-commission-to-face-constitutional-test/story-e6frg6nf-1226457002008. Apparently, the full court of the High Court will hear a constitutional challenge to the Australian Crime Commission's interrogation powers contained in the Australian Crime Commission Act 2002. By law, the ACC has similar powers to a royal commission, allowing examiners to summons a witness and require that they give the Commission evidence of their knowledge of criminal activities in which themselves and others are involved. The action follows a complaint from a person summonsed to give evidence under the Commission's special coercive powers. The plaintiff was called to give evidence to investigators at the ACC about federally-related crimes with which they were charged and awaiting prosecution. Lawyers for the plaintiff have argued that there is a question whether the Constitution provides protections that prevent an interrogation by a policing body while charges for the same matter were before the courts. Central to the challenge is whether the plaintiff has a constitutional right not to reveal his/her defence to the criminal charges. It will be argued that in such cases there may be an abrogation of a fundamental right, namely that the administration of justice not be interfered with. The plaintiff's lawyers are arguing that once the court or curial process has been activated by the laying of a charge, it must be allowed to take its normal course.
This week, I have been sitting in periodically on the Coroner's Inquest into the death of the 4 year old boy, Liam, at Claremont. The case is a fascinating one given the circumstances of the matter and events to date. Fiona Garth, the babysitter, was previously charged with the boy's murder but this charge was later dropped by the DPP. Garth then pleaded guilty to assault, was convicted, and spent some 9 months in Risdon Prison. Some in the community, particularly as more detailed circumstances surrounding the case have emerged this week, are querying the course of action taken in the matter. Today I hope to hear the evidence of the medical experts, such as the forensic pathologists, as to the cause of death, which appears to have been a critical issue in the case. It appears that the child may have drowned in the bathtub but that other causes of death could not be ruled out. The case reminds me of the high profile case of Henry Keogh in SA where he is currently in prison for the murder of his fiance. It was alleged at Keogh's trial that he forcibly drowned his partner in the bathtub so the forensic pathology evidence in that case, which was subsequently discredited, was crucial. Many people believe that the case of Henry Keogh is a miscarriage of justice, particularly in light of new and fresh evidence. They have fought very hard for many years now to have his conviction overturned. See the Networked Knowledge website (netk.net.au/) for more information on this case. Dr Bob Moles in SA has also published two books on the Keogh case (Losing Their Grip (2006) and A State of Injustice (2004)).
Today I am having lunch with Poppy Lopatniuk, who recently published Tomorrow's Children (see my previous book review on this blog on 26 June 2012), with some of her supporters and friends. Tomorrow's Children outlines Poppy's personal life and the alleged health impacts on the community surrounding the Howrah tip site. Poppy describes what appears to be a very high incidence of cancers (a "cancer cluster"?) and auto-immune diseases in her own family and people living in the streets immediately surrounding the old Howrah tip site. It seems that the Government (both Local and State) continue to strenuously deny that there was any abnormally high incidence of cancer in the area (see the Tasmanian Times website for discussion on the issue). Getting up this morning, I heard that one of the major stories in The Mercury today is about an approved hazardous waste dump here in Tasmania. I sincerely hope that they have thought this through very carefully and have consulted widely with relevant experts, as well as the community. There are clearly lessons to be learned from the Howrah tip experience and similar experiences elsewhere. As Poppy highlighted, it is not just about the here and now, it is about the children of tomorrow and the implications beyond...
I am currently preparing my address for the Corruption Prevention Network Forum in Sydney on 6 September 2012. As previously mentioned, I am presenting on the issue of the contribution of "corruption" to miscarriage of justice cases. I therefore considered that I needed to provide a useful working definition of "corruption" for the focus of the paper. As we all well appreciate, the word "corruption" is a problematic one and has a host of definitions and interpretations. In fact, it is often frequently used (particularly in the media) to refer to a range of misconduct matters, even relatively minor matters. Interestingly, in Tasmania, when Government chose to establish an Anti-Corruption Authority (ACA), they chose to call it the “Integrity Commission”. The legislation that underpins the agency does not even mention the word “corrupt” or “corruption” once, despite the obvious use of the term by other ACA's in Australia. The focus, instead, is on "misconduct" which has a very broad definition.