ACR102 – 2020

Introducing Crime
& Criminal Justice

Week 10
Failures of Justice
Dr Andrew Groves
 Contact Information
Unit Chair: Dr Andrew Groves
Burwood / Online Campus Coordinator
Room 3.06, Building D, Burwood Campus
(03) 9246 8961 andrew.groves@deakin.edu.au
Consultation time: Tuesdays 1pm on Bb, OR by appointment

“There is no such thing as a silly question…except the one that isn’t asked!”

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Well done on the use of the Discussion Boards, in particular those students that have helped others, keep up the good work!

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Make sure you read all information – incl. Announcements, Discussion Boards and Study Guides for each week. Also, use the relevant resources for their intended purpose – e.g. AT4 Discussion Board.

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Note: communication make take a little longer. Thank you for your patience to date, it has been really pleasing to see.
 Important Information – AT3
• AT3 (Essay) feedback to be returned by 5 October (for on-time submissions) in
time for review prior to Take-home Exam.
• Remember: there is a grace period for all ATs until 11:59pm on the due date;
penalties apply for submissions 12-midnight and after. Note: penalty is 5% per
day or part thereof so use/consider wisely!
• Make sure you read all documents available to you, carefully (e.g. Instructions,
FAQs, rubric, Discussion Board, etc.).
• Check assessment deadlines! Don’t leave tasks to the last minute!
• Submit files in the correct format (i.e. Word or PDF only). Typically, if a file
cannot be read, it will receive a mark of ‘0’.
• Do not submit any work that has been previously submitted for other assignments
– this is self-plagiarism.
• If you contact your tutor or Unit Chair by phone, please leave a detailed
voicemail, including return contact details!
• Reminder – if you are seeking an extension for any assessment, it must be prior
to the deadline, using the extension request form and include supporting
documentation (e.g. medical certificate, funeral notice, statutory declaration, etc.).
• Also, the length of extension requested should match supporting documents.
 Important Information – AT4 Th
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• Instructions, FAQs, Rubric & answer template available on Cloudsite – read carefully! ut !!
• Examinable materials include 1) lecture slides, 2) prescribed readings and 3) Study Guides for each
week (including week 3 & 6 chapter, provided as PDFs).
• Seminar materials are not examinable, but can be useful as practical examples for learning and/or use
in Take-home Exam.
• DeakinTALENT materials are not examinable.
• To help with your preparation, there will be an additional recorded lecture provided related solely
on exam revision – this will be available on the Cloud in week 12.
• Broad reminder – students shouldn’t make travel (or other) plans during trimester exam periods!
Extensions
• The Take-home Exam (AT4) will be open from 9am Monday 12 October until Thursday 15
October, 8pm (AEST) (+ grace period until 11:59pm). Be prepared!
• Read guidance on extensions in the Instructions. If students experience unforeseen barriers/issues
that prevent completion of this task, they must apply for Special Consideration, within three days of
the final deadline.

Week 11
• Reminder for students in Friday seminars, no alternative arrangements needed as AFL Grand Final
public holiday has been moved to Friday 23 October.
 Lecture Overview
• What is a “failure of justice”?
o Philosophy/ideology
o Types/forms
• Case Study: John Button
• Prevalence
• Contributing factors
o Police/investigation stage
o Pre-trial and trial stages
• The role of science
• Responding to failures of justice
• Implications of “failing” – things to consider & the ‘so what?’
 What is a “failure of justice”?
• What is justice?
• How do we know when ‘justice’ has not been achieved?

Defining a ‘failure of justice’ is complex

“At its broadest, the term means any failure to achieve justice, including wrongful convictions and
acquittals, the failure to prosecute those responsible for crimes, and unjust laws and punishments”
(Dioso-Villa, Ransley & Goldsmith, 2017, p.591).

•There are varied types and causes

•Prominent cases draw attention to weaknesses in the CJS (e.g. Chamberlain case, Henry
Keogh, etc.)

•What about other cases, which may involve serious miscarriages but have little media
profile or interest?

•Do these matter? (Of course!)

URLs embedded!
 What is a “failure of justice”?
There are many different ‘types’ of failure of justice:
 Case Study: John Button

• Feb 1963: Rosemary Anderson hit and killed by a car after an argument with her
boyfriend, John Button.
• Button interviewed by WA police following her death
• Confessed after 22hrs of interrogation – later claimed duress
• Convicted of manslaughter by vehicle impact, and sentenced to 10 years
imprisonment. Paroled after 5 years
• Serial killer Eric Edgar Cooke executed in 1964. Had confessed to Anderson’s
murder in 1963, but his confession was disbelieved.
• Multiple appeals by Button were unsuccessful,

• 1998: A true crime book exposed inconsistencies in the evidence against Button
and brought media attention to the case

• Feb 2002: WA Court of Criminal Appeal quashed Button’s conviction after

evidence from vehicle crash experts proved Cooke was most likely the offender.
Image Source:
http://www.abc.net.au/radionational/programs/earshot/wrongful-the-john-button-story/9065942
 Prevalence
• Difficult to quantify how many ‘failures’ occur – we can only be sure about the ones that
have been identified…the ‘known unknowns’!

• Research estimates wrongful convictions may occur in 0.5 – 5% of serious crime cases
(Dioso-Villa et al, 2017, p.591-5).

• In the US, when applied to the rates of serious crime, even at the lowest estimate of 0.5%
this may result in at least 7,500 wrongful convictions for serious crime cases each year.

• In Australia, during 2016-2017, there were 87,209 offences (AIC, 2018) where homicide
and related offences, acts intended to cause injury and sexual assault and related
offenders were principal offence – potentially 450-4,000 wrongly accused!

• The consequences of a ‘failure of justice’ are enormous for all parties involved; the
victim, the offender, the system and the broader community.

• The consequences can also last for years, in some cases…so “is it better that ten guilty
persons escape than one innocent suffer” (Blackstone)…?
 Contributing Factors
A failure of justice can be:
• An Act of Omission
o …a failure to act, including of key institutions of the CJS
(e.g. where police do not investigate all evidence available).
• An Act of Commission
o …where the actions or behaviour of a person involved in a
case, causes harm to the case and results in a miscarriage of
justice (e.g. police ‘planting’ evidence on a suspect).

Generic causes include:

• Administrative failures (typos? mistaken identity?)
• Process failures (incorrect evidence procedures)
• Genuine mistake and error

Failures of justice can occur at each stage of the justice system

– police investigation, pre-trial and trial (and indeed, after…).
 Contributing Factors: Police

Police malpractice
o Evidence suppression
o Witness coercion

Police “Tunnel Vision”

o Impacts directly on an investigation
o Investigators become unwilling to consider an alternative cause
o Based on assumptions, “hunches”, error
o Can be driven by media, political or community pressure

False Confessions
o Often associated with over zealous investigations and interrogations

Unreliable informer evidence

o Can be incentive driven
o 16% of 70 cases overturned because of DNA evidence, originally based on informer
evidence (Weathered, 2003)
 Contributing Factors: pre-trial & trial
Disclosure issues
o Failure to disclose

Poor legal representation

o Difficult to prove and correct
o Provides client with inadequate or incorrect advice
o Australian case law – grounds for appeal if representation ‘incompetent’

Questionable ‘expert’ evidence

Faulty eyewitness testimony

o Memories are not video recordings – they are malleable and can be inaccurate

Unwitting juror prejudice

o Can include ignorance and stereotyping
o Example: Slow-motion video footage and offender intent
URL embedded!
(see media and peer-reviewed articles).
 The Role of Science
• Identified as a significant cause of wrongful convictions
• Problems with DNA and the ‘CSI’ myth
• Over last 50 years, science played an increasing role in CJ prosecutions
• Scientific evidence is beneficial but not infallible

Problems associated with scientific evidence:

• Faulty collection/testing of crime scene analysis
• Sample contamination
Consider influence of
• Laboratory accreditation and quality control discretion and
• Use of unproven theories/assumptions accountability

• Lack of defence resources to ‘test’ evidence

• Lack of standardised analysis and reporting approaches
 The Role of Science: DNA Evidence
• Extended traditional identification processes
• Through DNA testing – any human cell can be examined and compared.

1989 ACT: First successful use of DNA in an Australian criminal proceeding – the
accused, Desmond Applebee, plead not guilty to sexual assault and was convicted by
DNA evidence (see Gans & Urbas, 2002)

Problems with DNA evidence:

• Choices made re: what to collect, how to test, how much to test
• Flawed and contaminated testing can occur
• Not exact or definitive
• Use in court may be confusing and/or lacking explanation
• How is information stored and/or controlled? Who has access and when?
• Function creep…?

URLs embedded!
 The ‘CSI Effect’/‘CSI Myth’
• Argument that juror expectations are influenced by the processes and results
depicted in TV shows

• The expectation of, and reliance on, crime scene evidence to “prove” what
happened

• Where scientific evidence is not available, there is an expectation that it should be

• The “CSI” effect can result in wrongful convictions and acquittals

Research by Shelton, Barak & Kim (2009) found:

• Increased expectations in use and capacity of scientific evidence
• No correlation with TV watching habits
• No causal link established – the ‘CSI’ myth…
 Problem with Eyewitness Testimony
VIDEO: https://video.deakin.edu.au/media/t/0_hddnbms4 (2 mins)

•Eyewitness testimony refers to the account given by a bystander

“witness” to help an investigation or as evidence at trial.

•The validity of memory recall is a point of significant debate,

particularly when it derives from a stressful situation such as witnessing a
crime take place.

•Critics argue that memory can be easily manipulated, altered and can
reflect a person’s bias.

•Example: Ronald Cotton and Jennifer Thompson (US)

•Note: As discussed in week 8, witnesses to crimes can be considered

secondary victims. Think about what this means for the reliability of their
statements, with regard to experiences of trauma and harm, as well as
their possible interest in any form of compensation.
 Responding to Failures of Justice
Appeal Processes
Both the prosecution and defence can lodge an appeal against conviction or an appeal
against sentence
•Prosecution (also known as the Crown) can appeal against the ‘manifest inadequacy’ of a
sentence.
•Defence can appeal against the ‘severity’ of a sentence –
for example the recent appeal of Adrian Bayley.

Appeal Statistics in Victoria (Sentencing Advisory Council, 2012)

•Most appeals are made by the defence, on behalf of the convicted offender. In 2011, of all
criminal appeals in Victoria:

• 54% sentence only (offender lodged)

• 15% conviction and sentence (offender lodged)
• 13% conviction only (offender lodged)
• 6% Crown appeals Consider influence of
discretion and
accountability
 Responding to Failures of Justice
‘Double Jeopardy’
•Where an accused has been acquitted of a criminal offence, the opportunity for retrial has been
traditionally limited.

•Double jeopardy is a principle that prevents police or prosecution from tirelessly re-trialing an
offender who has been found innocent of the charge.

•Recent legislative changes have introduced the possibility of some being tried twice for the
same offence in several Australian states.

•November 2011, legislation introduced in Victoria permitting re-trial in carefully defined

situations –

• Where there is new and compelling evidence

• Where there has been previous juror intimidation or bribery
• Where there is evidence of false testimony

Appeals, Compensation and ‘saying sorry!’

•Supporting appeals and quests for innocence
•Awarding compensation (Victims of Crime fund)
•Proportionality – how do you compensate years lost?
•Stigma and reputational damage
 Things to consider
• What are the implications of a ‘failure’ or ‘miscarriage’ of justice?

• Who do these consequences impact the most – the offender, the victim, the
community or even the system?

• What do we need to do as a community and CJS to try to prevent further

miscarriages in the future?

• Can we ever reach a point where miscarriages do not happen? Why/why not?

URLs embedded!

See Cloudsite
 READ
Final Topic: Prescribed chapter from the
Criminal Justice and textbook and study guide material
prior to the lecture/seminar.
Human Rights

Assessment
•Start thinking about your Take-home Exam by compiling your notes and
catching-up on any missed lectures/readings.

•Week 11 is the final lecture and seminars on content, though note the
Revision lecture scheduled for week 12.