Failure to Act

Researchers estimate wrongful convictions represent 3–5% of prison populations in some jurisdictions, suggesting many cases never reach exoneration.

In WA, there are about 4,500 prisoners. These are the number of possible wrongful convictions in prison today

1% 85

2% 170

3% 255

4% 340

5% 425

This raises many issues. The bar is set way too high for a successful appeal; if out of a possible 300 innocent persons in prison today, only 1 will be successful in receiving justice.

HOW DOES THAT FIT WITH THE QUOTE ON THE FRONT COVER?

We might say we believe in these quotes, but we certainly don’t act on them

Over the next few weeks, I will bring you a comprehensive report on the following cases and how each charge was manipulated by the Police and prosecution to secure a conviction.

Person Original conviction Convicted Exoneration/appeal outcome

John Button Manslaughter over Rosemary Anderson’s death 1963 2002

Darryl Beamish Wilful murder of Jillian Brewer 1961 2005

Ray Mickelberg Perth Mint swindle offences 1983 2004

Peter Mickelberg Perth Mint swindle offences 1983 2004

Brian Mickelberg Perth Mint swindle offences 1983 2004

Andrew Mallard Murder of Pamela Lawrence 1995 2005

Vincent Narkle Deprivation of liberty and sexual assault 1993 2006

Gene Gibson Manslaughter in the death of Josh Warneke 2012 2017

Scott Austic Murder of Stacey Thorne 2009 2020

Sam Fazzari Murder of Phillip Walsham 2006 2007

Jose Martinez Murder of Phillip Walsham 2006 2007

Carlos Pereiras Murder of Phillip Walsham 2006 2007

Rory Christie Murder of Susan Christy 2003 2005

Jeanie Angel Convicted of murder 1989 1991

Kevin Ibbs Convicted of raping his wife, 1986 2001

Western Australia historically has very few formally recognised exonerations, partly because:

1. No Criminal Cases Review Commission (like the UK)

2. Appeals often fail unless “fresh and compelling evidence” appears.

3. Many potential wrongful convictions remain legally unresolved.

Since 1950, Western Australia has held very few formal inquiries specifically into wrongful convictions. Most investigations occurred case-by-case after a major miscarriage of justice, rather than through systemic Royal Commissions. In total, there are about 5 significant public inquiries or quasi-judicial reviews that directly examined causes of wrongful convictions in WA.

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WA Parliamentary Inquiry into Miscarriages of Justice (2014)

Scope

Examined systemic safeguards against wrongful convictions in WA.

Findings

Major drivers of wrongful convictions identified:

• false confessions

• flawed forensic science

• eyewitness misidentification

• non-disclosure of evidence

• cognitive impairment of suspects

Recommendations

• create a Criminal Cases Review Commission (CCRC) modelled on the UK

• strengthen interpreter protections for vulnerable suspects

• improve police interview recording

Implemented?

❌ Mostly not implemented

WA still does not have a permanent CCRC.

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WA Review of Criminal Appeals Reform (2018–2020)

Scope

Legislative reform following several high-profile miscarriages.

Key Result

Creation of a “second appeal” pathway allowing appeals based on fresh and compelling evidence.

Relevant law:

Criminal Appeals Amendment Act 2013

Implemented?

✅ Yes

This reform enabled later appeals

However, wrongful convictions still occur at the same rate due to the same flawed investigative procedure. Nothing has changed in the 60 years that I have been involved in the justice system.

It isn’t that they can’t find the answer; it is that they don’t want to.

These are my thoughts on the way forward.

1 We employ the police to do a terrible job that we don’t want to do: fight crime. At the very least, we can give them the means and the incentive to do that job properly. In the 21st century, there should be almost no doubt about who the culprit is. We have all the scientific equipment and knowledge to bring the guilty party to court. First, we need to weed out all those in senior positions who were instrumental in procuring a wrongful conviction and used that conviction to rise to senior ranks; thereby breaking the cycle in which junior officers are “encouraged” to flout the law. THE STANDARD HAS TO BE SET AT THE TOP.

2 The Jury Oath in Western Australia

Under the Juries Act 1957, jurors must swear an oath (or make a secular affirmation) before participating in the trial.

Traditional oath

“I swear by Almighty God that I will faithfully try the accused and give a true verdict according to the evidence.”

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Legal Meaning of the Oath

The oath imposes three duties:

1. Faithfully try the case

Jurors must:

• listen to all evidence

• follow the judge’s legal directions

• remain impartial.

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2. Give a true verdict

Jurors must decide honestly based on their assessment of the facts.

They must not be influenced by:

• prejudice

• outside information

• media coverage

• personal interests.

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3. According to the evidence

Jurors are legally required to decide only on the evidence presented in court.

They cannot:

• conduct their own investigations

• research the case online

• rely on external knowledge.

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Consequences of Breaching the Oath

If jurors violate these obligations, it can lead to:

• jury discharge

• contempt of court proceedings

• a mistrial

In serious cases, juror misconduct can result in criminal penalties. The only way we can be sure they are complying with the law is to require them to return their verdict with reasons. In this way, we know that they have read all the evidence and are not relying on the rhetoric of the two counsels. If the presiding judge finds that they have not obeyed his instructions or have misinterpreted the evidence, he can instruct them to reconsider and amend their reasons. He could also invite the defence and prosecution to give their opinions to guide him in deciding whether to accept or reject the verdict. Leading to a reduction in appeals.

3 However, the only way a jury can come back with a just decision is if all they have heard is the truth. In light of this, any witness who knowingly misleads the judge and jury should be subject to severe punishment. I suggest that they receive the same sentence as the accused was given or would have been given if found guilty.

4 Before a successful appeal is adjourned, the judge must be satisfied that no fault is contributed to the prosecution or witnesses of the original trial. If not, an order must be put in place for a full independent inquiry into the reason for the miscarriage of justice

5 All miscarriages of justice must be considered for full compensation according to the laws that govern civil cases.