Naked City

Looking back to the Azaria Chamberlain case, John Silvester hears a forensics veteran call for new oversight of our justice system.

The innocent are convicted more often than we admit, says a forensic expert.

They do things differently in the outback of the Northern Territory, where they have a boat race on a dry riverbed and the daily newspaper runs headlines such as ‘‘Why I stuck a cracker up my clacker’’.

Which means when we think of one of the greatest miscarriages of justice in Australia’s history, we can conveniently pigeonhole it as a terrible Territorian gaffe that would never be repeated in the land of lattes. After all, they have crocodiles in their rivers whereas we wear them on our feet.

Are we conceited in the view that big city justice always gets it right? Certainly, one of the most experienced and respected practitioners in the caper thinks our justice net scoops up the innocent more often than we admit.

Professor Stephen Cordner is no alarmist, but he is ringing the alarm bell. After examining available evidence, he believes we have wrongly convicted people who are not given a fair chance to clear their names.

As a hands-on forensic pathologist, Cordner gathered medical evidence in between 10 and 20 murder cases every year in Britain and Australia for more than 30 years.

At one stage, he was conducting 700 autopsies a year and his findings were vital in criminal investigations. His work included the Black Saturday bushfires, the 2002 Bali bombing and the Fukushima earthquake, plus war crimes missions to Iraq and Kosovo.

The former director of the Victorian Institute of Forensic Medicine says if we could get it so horribly wrong in the nation’s highest-profile criminal case, how do we know it isn’t happening regularly now?

‘‘We don’t know how many innocent people have been banged up,’’ he says.

Forty years ago, on August 17, 1980, Lindy and Michael Chamberlain lost their nine-week-old daughter, Azaria, taken from the family’s tent at a camping ground at Uluru. Despite an immediate search by 250 people, Azaria’s body was never found.

The grieving parents were subjected to a national whispering campaign, four inquests, a trial, wrongful conviction, appeal, acquittal, a royal commission and finally exoneration. It took 20 years before a coroner finally found what the Chamberlains believed all along – that a dingo took the baby.

It was just after 8pm on Friday, October 29, 1982, when I walked into the City Court Hotel in Russell Street and announced to a bar full of detectives that a jury had just found Lindy Chamberlain guilty. The news was greeted with cheers and beers.

It showed the irrational passion of the case. At least 20 detectives, all trained to keep open minds and base conclusions on facts, were convinced the Chamberlains were guilty of a ‘‘crime’’ committed more than 2000 kilometres away. There were no admissions, no witnesses, no proven cause of death and no body.

People didn’t like the way the Chamberlains reacted in the days and weeks after their baby went missing and police decided they were guilty, even after the first coroner – former Victoria Police officer Denis ‘‘Dinny’’ Barritt – concluded a dingo had entered the tent and taken Azaria. He

was less than complimentary of the police examination and the quality of the forensic evidence.

This didn’t stop the police, who continued an investigation that led to the couple being charged and convicted, largely on the testimony of a swag of handpicked experts.

‘‘Police were stung into action, and forensic scientific and medical evidence developed in support of their view – and that of the public, it seemed

– that Azaria had been murdered,’’ Cordner says.

Lindy Chamberlain was convicted of murder and Michael as an accessory largely on the testimony of so-called experts that Lindy used a five-minute window of opportunity to cut her daughter’s throat, then somehow managed to bury the body unseen and dump her clothing four kilometres away near a dingo lair.

‘‘The biggest criminal trial in Australian history was a massive mistake: there was actually no crime,’’ says Cordner. He quotes the scathing findings of the royal commission: ‘‘It can be seen that some experts who gave evidence at the trial were overconfident of their ability ... Some of their opinions were based on unreliable or inadequate data ... Other evidence was given at the trial by experts who did not have the experience, facilities or resources necessary to enable them to express reliable opinions.’’

Cordner has reviewed methods of dealing with wrongful convictions and argues we make it too hard to have a false conviction overturned and statistics indicate there are innocent people denied justice.

And we do get it wrong.

In 2007, Peter Smith was released after serving 12 months when police admitted he had been falsely charged with murder.

In 2009, Farah Jama was released after serving 15 months for rape, convicted on faulty DNA evidence for a crime that was subsequently found not to have occurred.

Cordner says too often the world of politics clashes with the world of justice. ‘‘Until very recently, it was close to impossible in Australia to get your case back into the courts after completion of all appeals. Essentially, if you still knew you were innocent, you had to convince your state attorney-general to send your case back to the courts.’’

In 2018, Victorian Attorney-General Martin Pakula referred the case of Jason Roberts, convicted of the 1998 murders of police Sergeant Gary Silk and Senior Constable Rod Miller, back to the Supreme Court. Roberts won the right to appeal against his conviction, which is presently before the full court.

It was a brave and correct decision by Pakula because while there are no votes in opening the cell door to a convicted police killer, there are credible allegations that questionable testimony helped convict Roberts.

Roberts may well win a retrial, although I believe there is sufficient admissible evidence to lead to a second conviction. This view concerned Roberts sufficiently that his legal team applied to the Supreme Court to have a Naked City column on the subject expunged from the World Wide Web.

His lawyer argued I am so influential that this column, floating in the internet ether, would miraculously persuade a future jury to return a guilty verdict. The Age’s lawyer, Sam White (no relation to Perry), countered that I am just a baggy-arsed hack who couldn’t persuade a Frenchman to fricassee a frog. (The court agreed with our lawyer.)

Cordner says that since 1989, the US Innocence Project has used DNA to exonerate 375 people, including 21 on death row. The average term served by those wrongly convicted was 14 years. In virtually every case, they were financially and intellectually disadvantaged.

These are only the cases where there is concrete DNA proof of innocence. What about those which didn’t feature the scientific silver bullet?

In one such case, an intellectually disabled young man, Christopher Abernathy, was convicted over the 1984 murder of Kristina Hickey, 15, in Illinois. Key evidence included an alleged confession after 40 hours of interrogation and an alleged admission to an associate (later found to be false).

In 2014, a new DNA test cleared Abernathy. He was released after serving 28 years, sued and was awarded $US14 million ($19.35 million).

The Innocence Project found the cause of false convictions included flawed eyewitnesses, faulty forensic evidence, false confessions and in 10 per cent of cases, the innocent were persuaded to plead guilty.

Why would the innocent plead guilty? Because it is part of a plea bargain. The suspect chooses to take a discounted sentence rather than roll the dice on a trial where in many states the death penalty remains a possibility.

In Victoria, nearly 80 per cent of prosecutions end in a guilty plea.

England took the responsibility of reviewing potential unjust convictions away from politicians more than two decades ago, establishing the Criminal Cases Review Commission in 1995. It has sent 673 cases back to the courts; 452 convictions have been overturned.

‘‘It shows we should not be complacent,’’ Cordner says. ‘‘Australia needs a Criminal Cases Review Commission similar to the English one.

‘‘Scotland has such a mechanism, as does Norway. New Zealand’s Criminal Cases Review Commission opened its doors on July 1 this year. When will Australia do likewise?’’