Miscarriages of justice

At the time of her tragic death in the bathtub in her Adelaide home, Anna-Jane Cheney was a vivacious, intelligent 29-year-old woman, heading for a successful career in the law. Cheney was Head of Professional Conduct at the Law Society of South Australia. Her wedding to 38-year-old financier Henry Keogh was five weeks away. It was nothing short of a tragedy when Keogh found his fiancée in their bathtub, motionless and unresponsive, heart stopped.

The first responders rushed to the scene, but their efforts were futile. Cheney was gone. According to the attending officers, this was an unfortunate accident – a mildly intoxicated woman had fallen asleep in the bath, and drowned. But as more information emerged the consensus would shift. In subsequent police interviews, some of Cheney’s family members expressed distrust of Keogh, suspecting that he was involved with other women. It would later be revealed that Keogh was the sole beneficiary of up to five life insurance policies he had taken out in Cheney’s name, allegedly without her knowledge. The windfall? A sum of $1.15 million in the event of her untimely death.

Two days after Cheney’s demise, Chief Forensic Pathologist Dr Colin Manock arrived to conduct the autopsy. Manock had worked in the field for over 30 years, with more than 10,000 autopsies to his name. His scrupulous examination of Cheney’s body identified four marks on her left calf – bruising, he said, consistent with someone gripping Cheney’s legs before pulling them up, turning the struggling victim upside down, forcing her head into the water, and drowning her.

The jury agreed. This was a brutal and pre-meditated murder, with a clear motive by a divorced father of three. Keogh was sentenced to 26 years in prison.

The story fitted. But the case remained wholly circumstantial. Unbeknown to the jury, most of the media and the interested public, shortly before Keogh was being prosecuted the architect of the murder theory was being quietly investigated. The investigation commenced after Manock curiously attributed the deaths of three unconnected individuals who died at separate times in unrelated incidents to a single, rare cause: bronchopneumonia. South Australian Coroner Wayne Chivell was asked to investigate Manock’s conclusions, and had written his findings several days before Keogh’s trial was due to begin.

The Coroner’s investigation would find that Manock “had said that he had seen things which could not have been seen”; that some of his answers to questions were “spurious”; and that Manock’s post-mortem examination in each case “achieved the opposite of what should have been its purpose: it closed off lines of investigation rather than opening them up”.

Tellingly, the Coroner was prepared to publish a damning critique of Manock’s credibility as an expert witness. But the Keogh jury never learned about the Coroner’s findings, as Chivell elected to wait until after the trial concluded before publishing his results. Manock’s credibility was preserved.

The jury also never learned that Manock had no formal qualifications or training in forensic pathology – that he had been appointed to a specialist position without possessing the requisite specialty. They never learned that subsequent evidence showed Cheney’s bruises could have been up to several days old, with a strong possibility they were produced from day-to-day activities. They never learned about new evidence that showed the method of drowning was impossible, as it would have required an attacker to be in a position where a solid wall was located.

It would later emerge Cheney had been aware of at least two of the insurance policies said to have been taken out without her knowledge. It also emerged that the death scene hadn’t been cordoned off; the body had been “tidied up”; photographs at the scene showed marks and swelling that indicated the possibility of a severe allergic reaction; and Manock had never reviewed Cheney’s medical records. Reasonable doubt abounded.

Had an innocent man been locked up for the accidental death of the woman he loved? One man was convinced that he had.

Dr Robert Moles is Australia’s foremost expert in miscarriages of justice. He has been investigating Manock for more than 20 years – investigations sparked after he first learned about Henry Keogh. When Moles heard about the case and read the trial transcript, he became convinced of Keogh’s innocence and helped take his case to the South Australia Court of Appeal. But Keogh had already appealed unsuccessfully once before, and the Court of Appeal said it lacked jurisdiction to reopen the case. The High Court agreed, affirming that it was unable to entertain a second application by a person claiming to have been wrongfully convicted, as legislation afforded a convicted person a right to one appeal only. Once that privilege was exercised, the court’s power and jurisdiction were exhausted.

With no other recourse, Moles petitioned the Attorney General to send Keogh’s case back to the courts. Once a case reaches the petition stage, as Moles says, “you are beyond the reach of legal rights”. A petition is, in effect, a Hail Mary, with the Attorney General permitted unfettered discretion to reject or accept it. In this case, as in most, the petition was rejected. Keogh remained in his cell.

The great English jurist William Blackstone WROTE in his seminal 1760s work, Commentaries on the Laws of England: “The law holds that it is better that ten guilty persons escape than that one innocent suffers.”

To deprive someone of their liberty, to strip them of their freedom and lock them away, is to take away some of their most basic human rights. There can be few greater injustices than to take this step against an innocent person. This injustice is often compounded by the circumstances of the case. In an accidental death, the wrongfully convicted person is usually closely connected to the victim – a husband or a wife, a parent, a child or a sibling already grieving for their loss. And in cases where there was an intentional act, a wrongful conviction will see the actual perpetrator avoiding punishment.

It is for these reasons that our criminal justice system, and the systems of many others like ours, are set up to avoid miscarriages of justice: to ensure it is only the guilty beyond a reasonable doubt who are locked away in prison.

Nonetheless, mistakes occur. Since 1989, at least 3,225 people have been exonerated in the US alone. More than 27,000 years of life have been lost to wrongful incarceration, a statistic that accounts for only the few instances where miscarriages of justice have been exposed. On a conservative estimate, at least one per cent of the current US prison population have been wrongfully convicted. Some suggest this figure is closer to seven per cent. Most of these people will never be exonerated.

Why then do we so seldom hear about miscarriages of justice in Australia? Ask someone to recount a wrongful conviction, and you will probably hear something about “a dingo ate my baby”. Ask the same person to recount a second miscarriage of justice, and you can expect silence in response.

Are we unaware of these cases here because they just don’t occur? Perhaps our system is better placed than others to prevent miscarriages of justice. Or perhaps the truth is somewhat bleaker.

“Australia is far worse than Britain, Canada and the US,” says Moles, who decries our “profound denial”. Many others in the field agree, highlighting the lack of funding and attention as reasons for our failure to identify and remedy wrongful convictions. But some are less pessimistic, claiming that our system is less political, provides stronger protections for the accused, and is more willing to overturn a jury’s verdict than most, if not all, other common law jurisdictions.

In the course of research for this article, the Journal spoke with criminal lawyers, academics, former jurists and former prisoners to illuminate the Australian framework for identifying and remedying miscarriages of justice, and to assess how we fare in relation to our peers.

The right to appeal a criminal conviction emerged only in the 20th century. In 19th-century England, the sense was that appeals would undermine the role of juries in the criminal trial process and interfere with a system that provided finality for victims and perpetrators alike. But a series of much-publicised potential wrongful convictions changed the discourse.

On 13 November 1847, The Times ran an editorial calling for reform, “in the interest of that numerous class of persons who have been condemned contrary to law and justice, and who are left to languish out the best years of their life in imprisonment or banishment for want of such power of appeal”.It was more than 60 years later that the Court of Criminal Appeal for England and Wales first sat. Australia followed suit soon afterwards.

The precise wording of the grounds on which a conviction may be appealed in Australia differs across states and territories, but the grounds themselves are substantively the same: an error of law; a verdict so unreasonable that no jury acting reasonably could have arrived at the decision; or some other miscarriage of justice, leading to an “unsafe” verdict for the accused.

Australia’s appellate system, according to University of Melbourne criminal law professor Jeremy Gans, is “really robust”. Since Lindy Chamberlain’s wrongful conviction, Gans says, the High Court has learnt its lesson, showing repeated willingness to overturn jury verdicts, including, but not limited to, the much-publicised conviction of Cardinal George Pell. Appeal courts across the country have followed the High Court’s lead, frequently allowing criminal appeals for jury misdirection, procedural unfairness and unreasonable verdicts.

Sydney Law School Professor David Hamer specialises in the way criminal courts manage evidence when determining whether to convict or acquit defendants. In his view, “[Australian] criminal appeal courts do a much better job than the US, and the UK, and probably any jurisdiction, in being prepared to overturn jury verdicts.” Hamer says the Court of Appeal Criminal Division in England and Wales is “very deferential of jury verdicts”, in clear contrast with Australian state and territory appellate courts.

One needn’t look far to find an example of the Australian approach. On 9 March 2020, Dale Leslie Kennett was asleep in his car in a residential street in Hamilton, Victoria. It was the early hours of the morning, and Kennett, under the influence of drugs, was suddenly woken by a man screaming and pounding on the car, demanding money and trying to open the doors. Kennett, who knew the man and was scared he would be beaten up, put his car into reverse and backed out of the driveway at speed. In so doing, Kennett drove over another man, Jason Young, who for some unknown reason was lying on the roadside. Young died soon afterwards from multiple injuries to his thoracic region. On 12 August 2021, Kennett was convicted of dangerous driving causing death. He appealed.

A key issue in the case had been whether the prosecution could establish that it was the dangerousness of Kennett’s driving that caused Young’s death. Notwithstanding this, the judge told the jury: “what’s not in issue is that the driving caused the death”.

Just last month, the Court of Appeal found that “the [trial] judge’s directions resulted in a substantial miscarriage of justice”, and considered that “a properly instructed jury ought, on all of the evidence, to have entertained a reasonable doubt about the applicant’s guilt”.

Stepping into the role of the jury, the Court of Appeal acquitted Kennett, who walked free and cannot be retried. Without pomp or fanfare, the Court overturned a wrongful conviction, remedying a miscarriage of justice. You wouldn’t have heard about it. Perhaps the only remarkable thing about this case is that it is wholly unremarkable, reflecting our appellate courts’ willingness to act quickly to prevent injustice. Hamer and Gans see this as a key reason that miscarriages of justice – at least those that aren’t quickly remedied – occur less frequently in Australia.

And yet what of those injustices that are only discovered years later, identified from newly unearthed evidence, after appeals have been exhausted? It is precisely these unsafe convictions that aren’t quickly remedied that result in the greatest injustices – injustices we are, arguably, poorly placed to fix.

On November 30, 1994, 70-year-old Josephine Sanchez was attacked and robbed as she was walking through Long Island City in Queens, New York. She was stabbed twice and died at the scene.

A 10-year-old witness told police the assailant was a Black man in his 30s, wearing a white jacket, white shoes and a camouflage hat. Hours later, detectives zeroed in on Jaythan Kendrick – a disabled army veteran and postal worker with no criminal history, but also a Black man and also in his 30s, wearing a white jacket and living near the scene of the crime. When police searched Kendrick’s apartment they found two pairs of white sneakers and an army-camouflage hat. Two witnesses would later identify him, and the police found a purse on top of his television set, which the prosecution suggested belonged to the victim.

The jury deliberated for two days and indicated they were unable to reach a verdict. The judge instructed them to keep deliberating, encouraging them to reconsider their positions. On 29 September 1995, the jury convicted Kendrick of second-degree murder. He was sentenced to 25 years to life in prison, and his conviction was upheld on appeal.

Kendrick spent more than a decade writing to innocence projects and lawyers seeking help on his case. Twenty-one years after he was convicted, two attorneys agreed to represent him pro bono, teaming up with the local innocence project. They pushed for DNA testing, which identified male DNA on the victim’s fingernails, and excluded Kendrick. The first witness recanted his testimony, and the second witness’s testimony was wholly discredited. Kendrick walked free after 25 years in prison for a crime he did not commit.

Had this crime and conviction occurred at that time in Australia, Kendrick would have had almost no recourse after his first unsuccessful appeal. Our appeal courts may have been more receptive to his case on first instance, but they would not have seen the key exculpatory evidence (the DNA and the recantation), which first emerged many years later.

In the US, most jurisdictions set no limit on the number of criminal appeals, in a process that is known as post-conviction relief. Kendrick’s first appeal failed, but his subsequent attempts at freedom succeeded because of high quality legal representation and resources dedicated to his cause, many years after his conviction.

Back in Australia, by the time the dedicated and well-resourced Robert Moles learned about Henry Keogh’s potential injustice, it was, seemingly, too late. And so Moles pushed for reform. “I realised the law has to be changed if it’s not working properly,” he says, applying to the Australian Human Rights Commission to argue that our criminal procedure failed to comply with fundamental human rights obligations. The Commission agreed, expressing its “concerns that the current system of criminal appeals does not provide an adequate process for a person who has been wrongfully convicted or who has been the subject of a gross miscarriage of justice to challenge their conviction.”

The Commission found that a single right of appeal, no matter how broad its grounds, will deny a person a sufficient remedy if the injustice is revealed after that appeal has been exhausted. Partly in response to these findings, in 2014 South Australia became the first state or territory to legislate a second right of appeal, which effectively empowers the Court of Appeal to allow an appeal where “fresh and compelling evidence” demonstrates “a substantial miscarriage of justice”. In December that year, Moles and a team of lawyers appealed Keogh’s case for a second time, and the Full Court of the Court of Criminal Appeal set aside his conviction for murder.

After the DPP elected not to proceed with a retrial, Henry Keogh walked free, 19 years after he was wrongfully convicted of his fiancée’s accidental death.

Henry Keogh was the first person in Australia to be exonerated under the right to a “second or subsequent appeal”. Tasmania enacted similar legislation the next year, followed by Victoria in 2019 and Western Australia in 2020. The ACT is in a consultation process and expects to pass similar laws shortly. After more than 100 years with only one right of appeal, the reform is significant. In some experts’ view, it is also reasonably confined.

“Fresh and compelling seem like sensible requirements,” says Gans, noting the “dilemma with how often you reopen convictions”. Moles disagrees. In his view, the grounds on which one may appeal should be the same across each appeal, lest we “offend with the equality principle”. Moles is joined by Melbourne criminal lawyer Bonnie Logan, whose research (and passion) focus on miscarriages of justice. Logan says the “fresh and compelling evidence” test is “better than nothing”, but “very strict”. “It puts a very heavy burden on the person wanting to appeal,” she says.

Is this burden reasonable? Hamer is unsure, but notes that, “while it’s a terrible thing to convict the innocent … [s]ociety, particularly the victim’s family and those intimately involved, demand[s] closure. We can’t leave these cases open-ended … there has to be some kind of restriction on appeals”.

Former High Court judge Michael Kirby is “not optimistic that relying on a second appeal will make a very big difference”. The reform “still runs headlong into the fundamental problem presented by the appeal process: the appellate judges are under tremendous pressure to get through a very busy list,” he tells the Journal.

The second or subsequent right of appeal has been used to deliver retrials to many Victorians whose convictions were partly due to former barrister Nicola Gobbo’s evidence as a police informant while working both sides. Aside from these cases, few have succeeded on appeal under the new procedure hoped to be the solution to Australia’s inability to remedy miscarriages of justice many years after they occurred.

Another reason for the limited success is a lack of resources. Reviewing potential wrongful convictions is a “heavy duty business,” says Moles. A second appeal is useful only if a team of dedicated staff has the time, and resources, to trawl through hundreds or thousands of documents and investigate the case. In America, this is largely the work of well-funded innocence projects, with more than 40 such projects across at least 27 US states.

Lynne Weathered, a Griffith University academic who researches extensively in the area of wrongful convictions, is effusive in her praise: “America’s university-based innocence network projects [reflect a] blending of academic and discipline expertise through the combination of students, lawyers and academics, [and] have had a formidable impact in that country in terms of exonerations and criminal justice reform.”

US innocence projects are based in law schools. Students work in teams for 10–15 hours per week each semester and full time for three months in the summer, gaining course credit and clinical experience. Their supervisors are academics who also work as practising lawyers for the projects. The students review prisoners’ claims of innocence, visit them in prison, investigate the case, draft most of the court documents and conduct many of the examinations in court under supervision. The projects – funded by state governments and philanthropists – have led directly to hundreds of exonerations.

Motivated by the success of these projects, Weathered set up the Griffith University Innocence Project in 2001, the first of its kind in Australia. After 20 years of operation it has reviewed many hundreds of files to discover evidence of innocence – with limited, if any, success. According to Moles, the Griffith University Innocence Project has “never had a referral to the courts”.

The Griffith experience has been repeated several times in Australian attempts to replicate America’s success. RMIT’s Bridge of Hope Innocence Initiative, the University of Sydney’s Not Guilty: Exoneration Project and the University of Melbourne’s defunct Innocence Project all have sought to use student resources to identify wrongful convictions and help obtain exonerations. After these projects have been in operation for decades, not one exoneration can be directly attributed to an Australian university innocence project. The projects have failed.

Hamer isn’t surprised. “The obstacles are too great to set up an effective innocence project [in Australia],” he says. “If they’re set up within a university, they have to have a pedagogical purpose, so they’re much more an instrument for teaching than seriously designed and operated to overcome wrongful convictions.”

Can’t they be both? Each US innocence project is associated with a university – they too have pedagogical purposes, which have not undermined their success at remedying injustices.

But Gans says America’s projects succeed because “the US is much more fallible … there’s a lot of low hanging fruit. We have our errors, but we simply don’t have that volume”. Yet again, it is difficult to find a consensus view.

While Gans says US projects are more successful because there are more injustices to be found, others, like Dr Celine Van Golde, Director of the University of Sydney’s Not Guilty: Exoneration Project, notes that a lot of DNA exonerations are not possible in Australia, because “we don’t have the archives like in America”.

Justice Kirby refers to Australian innocence projects as the “inspired amateur” version of their US counterparts. “I’m not saying I’m against innocence projects”, he says, “but it sounds like law reform on the cheap… it isn’t getting [top barristers] to focus their experience and talent to look at the matter with fresh eyes.”

If Australian innocence projects are doomed to fail, then without an effective alternative solution injustices may continue unabated.

Working in a criminal law firm, Bonnie Logan says she sees unrepresented people in court every day who are convicted because of access to justice issues, with minimal safeguards in place. “You see it play out on a small scale,” she says.

Another form of injustice – rarely noticed – occurs when people plead guilty to crimes they did not commit. John Killick, who spent approximately 30 years in prison for a spate of robberies and related crimes, says that most prisoners are represented by Legal Aid, which is “really pushed … [and] has a habit of persuading people to plead guilty”. False confessions are particularly problematic among Indigenous Australians, in part due to “gratuitous concurrence” – an Indigenous cultural reaction of agreeing with white people, particularly in relation to  to statements made and questions posed by white authorities.

And, while Australian prosecutors and judges are less focused on appearing “tough on crime” than their US counterparts, who need to be elected, Hamer says that “our safeguards against biased and methodologically unsound forensic evidence are probably worse than [in] the US or the UK”.

Hamer says that forensic experts tend to view themselves as part of the prosecution team, often skewing their findings (consciously or unconsciously) to support the prosecution’s case.

Chris Maxwell, former President of the Victorian Court of Appeal, has been concerned about forensic evidence for several years. To prevent unfair prejudice, Maxwell has called for judges to act as gatekeepers, allowing forensic evidence to be seen by the jury only when it is relevant and reliable, and avoiding unduly persuasion of the jury using dodgy, unscientific evidence from experts with questionable expertise.

While some jurisdictions have been quick to re-examine unreliable forensic experts’ evidence, Australia has been slow to react. Manock – whose unreliable evidence helped secure Henry Keogh’s conviction – has been retired for nearly 25 years. In that period, books and articles have been published about him, television episodes and podcasts have criticised his methods, and scores of experts have called for a Royal Commission to examine his questionable practices and to review the hundreds of convictions secured in part due to his evidence. No action has yet been taken.

The story is different in America.

In Minnesota, a medical examiner is currently under scrutiny after several cases in which he gave testimony led to exonerations directly attributable to his unreliable evidence. “We’re going to read every transcript of every case he’s ever done.”

Those are the words of Professor Carrie Sperling, former Director of the Wisconsin Innocence Project, and the current head of Minnesota’s Conviction Review Unit. This type of unit, also known as a Conviction Integrity Units (CIU), is a division of a prosecutorial office that works to prevent, identify and remedy false convictions. CIUs are state funded and work adjacent to county prosecutors, but they are completely independent of the prosecutors themselves.

“Prosecutors have a duty not just to gain convictions but [also] to do justice,” says Sperling, who views the units “as an ombudsman for the prosecutor’s office”. CIUs do similar work to innocence projects, but with the authority of the state they are far more efficient at achieving exonerations.

Instead of pursuing lengthy, expensive and mostly unsuccessful post-conviction relief through the courts, when a CIU identifies a miscarriage of justice it makes a recommendation for relief directly to the county or district attorney. In almost all circumstances, the attorney supports the CIU’s recommendation and applies to the court to rubberstamp the relief. Sperling says CIUs have surpassed innocence projects as the most successful body in the country for engineering exonerations, having led to at least 648 exonerations since 2001. She calls for Australia to follow her country’s lead and establish these independent bodies.

Most experts the Journal spoke with barely entertained the idea of Australian CIUs. Instead, they uniformly support an alternative solution embraced by other Commonwealth jurisdictions: a Criminal Cases Review Commission (CCRC).

CCRCs are independent, government-funded bodies that review miscarriages of justice claims. The first CCRC was established in 1995 in England, Wales and Northern Ireland. Today its 90 staff, including 40 case reviewers, have significant investigatory powers, and its 12 Commissioners (sitting in panels of three) can refer any case back to an appeal court (automatically granting leave to appeal) if they identify an unsafe conviction or sentence.

Over the past 15 years, references from the CCRC have led to the overturning of more than 400 criminal convictions, around 100 of those for murder. In July 2020, New Zealand established its own CCRC, and Canada has committed to doing the same. Yet Australia lags.

According to Justice Kirby: “In the absence of a CCRC, including appropriate expertise and resources of its own or the establishment of effective innocence projects in Australia to assist prisoners who complain of miscarriage of justice, the mere enactment of a statutory right to allow a further appeal may be of limited value. No one considering the problem of miscarriages in criminal trials in Australia can draw any satisfaction from that conclusion.”

Moles and Hamer say a CCRC is essential. Sperling agrees that Australia needs a state-funded independent body to review potentially unsafe convictions, but considers that CIUs might be more effective. Logan suggests starting at the state level, either with CIUs or with state-based CCRCs.

The best approach may be debatable, but consensus is clear. Unlike its fellow common law jurisdictions, Australia is yet to invest in, and support, independent bodies established to prevent, identify and remedy injustice. And, aside from a few committed individuals, the issue is barely discussed.

Eight years ago, a potential wrongful conviction changed storytelling forever. The 2014 podcast Serial was ranked at No. 1 on iTunes before it even debuted, captivating much of the world with Adnan Syed’s story of injustice, and ushering podcasts into the mainstream. Last month, after 22 years of being locked away, Syed had his conviction overturned in a Baltimore court.

In Australia, four years after Serial’s success, a very different podcast reached the top of our charts. The Teacher’s Pet told the story of Lyn Dawson’s mysterious disappearance, speculating that her husband Chris was a murderer. In September, 42 years since Lyn was last seen, Dawson was convicted of murder.

The contrast, simplistic it may be, is profound. Wrongful convictions are not part of the discourse in Australia. Governments – concerned more with appearing “tough on crime” – lack the incentive to remedy long-lasting miscarriages of justice. Philanthropists are yet to involve themselves in the issue. And Australian innocence projects struggle.

We’re not sure how often people are locked up for crimes they didn’t commit. And, until society becomes more concerned, it’s likely our ignorance will remain.