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Evan Whitton
23 August, 2006  
Poltroonery - political and judicial

What is being done about wrongful convictions and other perversions? Nothing much – but a decent Criminal Cases Review Commission would be a good start

imageThis organ’s Court in the Act listed (August 4) a drum roll of wrongly convicted WA citizens:

Andrew Mallard, Darryl Beamish, John Button, Len and Dean Ireland, Clark Easterday, Ray and Peter (pic) Mickelberg, and Rory Kirk Christie.

And there is doubt about the convictions in May of Salvatore Fazzari, Jose Martinez, and Carlos Pereiras for allegedly murdering Phillip Walsham.

It is clearly time for something to be done about such perversions of justice. A few preliminary questions – and some boring statistics – to clear the decks.

1. Why are some wrongly convicted?

Since the lawyer-run and wildly inaccurate adversary system was invented 200 years ago, a score of contra-truth gimmicks have rigged the process heavily in favour of defence lawyers.

But that is not enough; they are also taught to believe they have a sacred duty to lie to keep criminals out of prison.

The circle is vicious; what’s sauce for the goose is sauce for the gander, etc, at least for some detectives and prosecutors, and in the process some innocent get convicted, but of course not anything like the numbers of guilty who get off.

2. What is the incidence of wrong convictions?

In Evidence (1824), Thomas Starkie KC (1782-1849), Downing professor of law, Cambridge, enunciated the basis of the adversary system. He wrote:

“The maxim of the law … is that it is better that 99 … offenders shall escape than that one innocent man be condemned.”

The reality is that in 100 major cases, more than 50 offenders escape and more than one innocent man is condemned: British probation officers believe at least one per cent of prisoners are actually innocent, i.e. at least 744 of the 74,398 in England and Wales on June 30, 2004.

If that applies in Australia, the innocent on June 2005 would have been something like: Australia 253 of 25,353 prisoners; NSW 98 of 9,819, Queensland 53 of 5,354, Victoria 37 of 3,692, WA 35 of 3,482.

C. Ronald Huff et al estimated in Convicted But Innocent (Sage, 1996) that five per cent of US prisoners were wrongly convicted. i.e. 109,311 of 2,186,230 inmates on June 30, 2005. In 1999, it was found that 12 of the 285 (4.2 per cent) on Illinois’ Death Row from 1977 were wrongly convicted.

Judges who allow executions and politicians who have them carried out are thus bound to have some innocent blood on their paws. George W. Bush enthusiastically offed two persons a month for a total of 152 while he was Governor of Texas (1994-2000). It is likely that six were wrongly convicted.

imageIncidentally, Bush was advised in 56 cases by A. Gonzales (seen here), a lawyer so bereft of any sense of justice that he purports to see nothing wrong with unlawful torture, unlawful wiretapping, and unlawful incarceration without trial. Bush, ever more obviously a dangerous idiot, made Gonzales first law officer of the USA in 2005. An Australian, David Hicks, can expect no justice from such people, but Jackie and P. Cruddock do not insist that he be sent back from their concentration camp at Guantanamo Bay. If that is not the politics of poltroonery, what is it?

Happily, Australia is more civilised than the USA, at least on executing people, and in that regard Queensland might claim to be the most enlightened state. Listed here, courtesy of the NSW Council of Civil Liberties, are the dates of the last executions with dates of formal abolition in brackets:

Queensland 1913 (1922), NSW 1940 (1955 for murder; 1985 for treason and piracy), Tasmania 1946 (1968), Commonwealth and ACT nil executions (1973), NT 1952 (1973), Victoria 1967 (1975), SA 1964 (1976), WA 1964 (1984).

As it happens, your correspondent was an official witness at the very last. An account in Amazing Scenes (Fairfax Library, 1987) begins with a lift from Le Troisieme Homme:

“One Friday in February 1967 I got a letter from the man I had seen hanged a week before; a week later, the hangman sent a carping letter.”

imageRonnie Ryan’s (pic) letter, written on 10 feet of lavatory paper the night before a Melbourne chemist hanged him, said he was not guilty of intent. I believe him, and believe he should have got life for manslaughter. His blood was on the hands of the unspeakable Henry Bolte.

3. What can be done?

In 1993, Garry Runciman’s commission of inquiry into the British criminal system had the honour of rejecting truth as the basis of justice for the second time in eight centuries.

It did say the truth should be found about innocent victims like the Birmingham Six. (But not that it should be found about victims when the plainly guilty got off.)

The ensuing Criminal Cases Review Commission (CCRC) began in 1998 with eight non-lawyers and six lawyers as commissioners and a staff of 100. They are not bound by the rules for concealing evidence, but three appellate judges, who are trained to cleverly conceal evidence from themselves, make the final decision.

imageBy July 30, 2006, the appeal court had quashed the convictions in 198 of the 285 (70 per cent) cases the CCRC had sent on. One quashed was that of Derek Bentley, who was hanged in 1953 for no better reason than that Lord Chief Justice Rayner Goddard, 76 (pic), achieved an emission when he ordered a flogging or put on the black cap.

4. What is being done for victims of perversions of justice?


Justice must require a constant search for ways to prevent perversions at the source, not 50 years later. A CCRC is thus an absolute minimum, but at least it’s something.

Law “reform” commissions, lawyers’ associations, law schools, and civil liberties organisations are constantly baying for justice. We can be sure that any day now they will tell legislators to put in place a Criminal Cases Review Commission, sop though it may largely be.


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