Courage

Institutional momentum is the tendency of organisations to continue defending earlier decisions, not necessarily because they are correct, but because changing direction becomes increasingly difficult.

Why is it so difficult for institutions to change direction?

Not because institutions are evil.     

This is not necessarily corruption. More often, it is institutional loyalty—a very human tendency to trust the judgement of those within our own profession.

Section 1 – Pride

Each one of us has a certain amount of pride, and we all have a limit as to where the moral consequence of our pride becomes more important than being seen as right.

It is certainly an area where I have had to question my own motives.

I now make it a fundamental part of my presentation to schools.

I point out that I admire Eric Edgar Cooke, even though he wilfully murdered my girlfriend and put me in prison for ten years.

Not that I think he should not have been hanged for his crimes, but because he is one of a very small group of people who had the strength of moral character to admit he was wrong.

Standing on the gallows, with only minutes to live, he took the Bible out of the hands of the minister and said, “I swear before almighty God that I killed Rosemary Anderson.”

 Here was a man who could say to me, basically, John, I made a mistake; please let me try and put it right.

Another man, Trevor Condren, when asking if he could speak in my defence at my appeal, also basically said, John, I made a mistake, please let me try and put it right.

He had watered down his evidence in court, so as not to imply I was innocent.

After examining my car for evidence of hitting my girlfriend, he told his senior detective that my car had not hit anyone.

The reply was, Trevor, if you want a job here Monday morning you better say it has.

Section 2 – Organisational Loyalty

Police support police.

Experts support experts.

Lawyers support previous cases.

Appeal courts respect earlier courts.

This is not necessarily corruption.

It is human nature operating within organisations.

My first personal experience was when my Lawyer, Ken Hatfield, spoke with the premier after my conviction for murder in 1963.

“David, you know this lad is innocent.”

“Oh, we all know he is innocent, but it would be political suicide to release him.”

To the present day, when I approached the Attorney General.

I had a number of requests, and most of them he dealt with speed and efficiency,

However, I asked him if I could show him absolute proof, not just that a convicted person was innocent, but facts that the whole system had joined ranks to put him away.

All it would take was one hour of his time; he refused.

There are several possible explanations. Two occurred to me.

First, that he already knew all the evidence of this wrongful conviction.

Second, He could not afford to know, if asked in the future, how long had he known about this new evidence he could honestly say, he hadn’t.

The coroner’s court was asked if they would open another inquiry into the death of Rosemary Anderson, as they did not have all the evidence to make a valid determination, as the full evidence would have given a different cause of death.

The precedent for this is the third inquest into the death Azeria Chamberlain; where the second inquiry declared she was murdered, the final inquiry was that she was taken by a dingo.     

Section 3 – Finality

The justice system values certainty and finality.

Yet justice also requires openness to correction.

How do we balance those two aims?

The peak of justice is where the public feels safe, and those who need encouragement to be part of society are removed until the threat is over.

We want a system that acts swiftly and with finality.

We also need people in charge who can say. “I’m sorry I got it wrong, let me try and put it right.”

After my exoneration, my son wrote to the police commissioner, “Now that my father has been fully exonerated, will you please apologise to him?”

The commissioner's reply, “We have nothing to apologise for.”  

However, this answer was based on the fact that the appeal court did not specifically find that the police had committed any wrongdoing; that was not its job.

Finality is important because society needs confidence that legal disputes eventually come to an end. But finality should never come at the expense of truth.

Section 4 – The Cost of Admitting Error

Who pays?

If the error is admitted sooner rather than later, the cost is minimal, but if the error is not admitted in a timely fashion, then

Who pays?

• victims,

• accused persons,

• police,

• governments,

• taxpayers,

• public confidence.

There is a mistaken belief that there is only one victim in each case. And certainly I would not diminish the pain that the one at the mercy of an assailant goes through.

However, we fail to acknowledge the other victims:

The family and friends of the victim also suffer immense trauma, not to mention financial pain.

The wrongfully accused in the case of the authorities' failure to properly examine the evidence.

Again, their family and friends.

Even the 12 members of the jury have to live with the emotional pain when they find out that they destroyed the life of an innocent person.

It could be said they were not given the truth, but they had the choice to accept or not.

There are many good young police officers who leave the force because they cannot comply with certain orders.  

There is also a cost to government ministers.

I requested the Attorney General to put forward an argument for Legislation to allow a convicted person to appeal, on fresh evidence, after their death.

The AG agreed with my reasoning and put it forward to cabinet; the reply was, "It is not on our priority list." So those in parliament trying to improve the life of its citizens are constantly frustrated.

In the end, it is always the taxpayer that pays. The cost of more inquiries, Royal Commissions, Ex-Gratia payments.

And the ones that pick up the tab are the future generations   

Section 5 – The Solution

Not punishment.

Not blame.

But:

• independent review,

• transparency,

• full disclosure,

• independent forensic oversight,

Other countries have initiated independent justice commissions which are now working towards an acceptable justice system.

However, it must be independent, just as government forensic laboratories need to be.

Also, when a case has been concluded, there is no reason why all the data should not be made available to the public. Justice does not need to be done; it needs to be seen to be done.

I see a great opportunity for our universities to participate in this new independent justice review.

It could be the first port of call for one who believes he is innocent to apply to. Law students get practical grounding in all types of cases and in police and prosecution procedures.  

If they agree that there are grounds for a full investigation, it is passed on to the commission  

Every institution faces moments when new evidence challenges old decisions.

The measure of a justice system is not whether it never makes mistakes.

The measure of a justice system is whether it possesses the courage to change direction when the evidence requires it.

"Justice is not weakened by changing direction when the evidence changes. It is strengthened."