Student Profile: Amy

How did you get involved in the Innocence Initiative?

I undertook a 20 day internship with the Bridge of Hope Innocence Initiative whilst I complete my Bachelor of Criminal Justice at RMIT. I have continued to volunteer after I completed my internship as my experience at the Initiative introduced me to my passion for the fair operation of the criminal justice system and wrongful conviction.

What do you do?

I assist in the reinvestigation of cases accepted, particularly working closely on the case Keli Lane. I also conduct reviews of applications made by prisoners to the Initiative and how they cohere with our ambit.

What are the most enjoyable aspects of reviewing cases?

I have strongly enjoyed working closely on individual cases, reading trial transcripts, police evidence and investigating potential leads and issues in each case. Reviewing applications exposed me to a large variety of unique cases and their material, providing me an insight into a broad spectrum of potential issues and discrepancies within our justice system. All interns are encouraged to provide their own ideas on each application made, allowing us to apply strong critical thinking, have in-depth discussions and fresh sets of eyes on every case.

What are the most difficult aspects of reviewing cases?

The content of cases can be highly sensitive and can oftentimes expose us to confronting material. At times it can be difficult to remember that these cases are the lives of another human being, and that both the prisoners and victims of these cases have had their lives irreparably altered. It is crucial to recognise the harms in the case and to treat each case with respect, confidence and without prejudice.

Has undertaking this internship changed your view of the criminal justice system?

My experience at the Innocence Initiative has exposed me to a more cohesive understanding of how our justice system operates and how, at times, it can also fail. I have learned strong critical thinking and to approach all cases and stories involving the justice system with an open mind and plenty of questions, whether I am introduced to these cases at the Initiative, my studies or in my everyday life.

Innocence Claims Based On Sexual Consent

How should innocence projects respond when a person is found guilty of a sexual offence, but claims the victim consented?

The Bridge of Hope Innocence Initiative does not accept claims of factual innocence where:

the claim of innocence is for a sexual offence and the convicted person has admitted sexual contact with the victim

 This policy is not a judgement on the truthfulness of any claim of innocence, but a decision informed by the complexities of substantiating consent as part of our review process. 

The following outlines some of the complicated factors at play. 

Statistics on Innocence and Sexual Offences

Sexual offences are significantly underreported to police in Australia.

It is estimated that 1 in 5 women and 1 in 20 men in Australia have been sexually assaulted and/or threatened since age 15. However, according to the latest statistics most will not report their experiences to police, with just over a third of victims (39%) reporting their abuse in 2016-17.

Even when reports are made, very few go on to result in a conviction. Only 1 in 6 reports to police of rape and less than 1 in 7 reports of incest or sexual penetration of a child result in prosecution.

Given such sobering statistics, it is understandable that the general public have little sympathy for claims of factual innocence for those convicted of sex-related crimes. However, wrongful convictions for sexual offences do happen.

Estimating the number of false accusations of rape or sexual assault in Australia is very difficult, with studies overseas providing very broad estimates of false allegations ranging from 2% to 10% of all reports to police.

A study of 850 rape accusations made in Victoria found that 2.1% were ultimately classified by police as false, with the complainants then charged or threatened with charges for filing a false police report.

False allegations are not necessarily malicious in nature, with mental illness and faulty eye witness testimony being raised as common issues in the literature. 

There are no good statistics on the rate of false allegations where the fact at issue is whether the victim consented. Although there is much popular media speculation about victims withdrawing consent because of “next day regret” or for malicious reasons, this a topic that has not been sufficiently studied.

The Complexity of Consent and Guilt 

There is also somewhat of a disconnect between a perpetrator’s understanding of consent and the legal definition of consent under criminal law.

For example, under Australian law, consent will not exist if the victim is so intoxicated as to not understand the nature of what is occurring or if consent is given in response to ‘force or fear of force’. Importantly also, silence cannot be used as evidence of consent.

In all jurisdictions, a sexual offence will not have been committed if the perpetrator had a reasonable belief that the victim was consenting, although each State and Territory has a different wording on what this means. Moreover, this ‘defence’ is heavily conditional on the reasonableness of the perpetrator’s belief as well the legal definition of consent. 

As a result, a convicted person may claim factual innocence as they believed the victim was consenting even though they still met the legal criteria for guilt under criminal law.

Practical Risks and Alternative Options 

There are also practical limitations at play in reviewing claims of factual innocence in sexual crimes where consent is at issue.

As part of the review process, the Innocence Initiative may need to contact witnesses to confirm original statements to police. In the case of a sexual offence, this would require contacting a victim – risking further victimisation and trauma – something that is against our guidelines.

Our policy is not only to protect victims of crime, but also to limit the level of distress experienced by our dedicated staff and volunteers.

If you are wishing to challenge your conviction of a sexual offence on the basis of consent, there are other options available to you. You should speak to a criminal defence lawyer about your options for appeal as well as an option to file a petition of mercy.

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Investigating Innocence Episode 4: Can You Trust The Expert? (Part 2)

In Part 2 we continue our discussion with Dr Bob Moles regarding a series of miscarriages of justice involving South Australia’s former chief forensic pathologist, Dr Colin Manock. To continue to learn more about these cases, please visit Dr Moles website: http://www.netk.net.au

Student Profile: Rhiannon

How did you get involved in the Innocence Initiative?

I became involved with the Bridge of Hope Innocence Initiative through my Bachelors degree of Criminology and Psychology at RMIT. BOHII has allowed me to complete a 20 day placement as part of my studies. I chose to apply to BOHII as I first heard about it in first year from my criminology lecturer and have been excited to participate ever since.

What do you do?

One of my jobs is to assess applications to the Initiative based on whether or not they meet the requirements of our ambit. However most of my time at the Initiative involves reinvestigating and analysing cases. This involves going through case materials to find inconsistencies and issues that may add to a review of the conviction.

What are the most enjoyable aspects of reviewing cases?

What I love most about working at the Initiative is the flexible nature of the investigative work, a lot of tasks delegated to us don’t have one single way of being done and involve a lot of critical thinking and thinking ‘outside the box. It’s extremely rewarding to work on a problem for hours or days, using creative methods of researching to finally find what you were looking for. I also really enjoy the team-work element, being able to chat with somebody about the confidential material we work with is very important.

What are the most difficult aspects of reviewing cases?

The only thing that I find negative about this type of work is the daunting nature of a large case with loads and loads of documents and jobs to be done, however the staff at BOHII are very good at breaking these down into manageable daily tasks for students and ensuring that there is varying material and work to be done when you need a break.

Has undertaking this internship changed your view of the criminal justice system?

Unfortunately, I would have to say that working at BOHII has lessened my already little faith in the justice system. However, it has been extremely eye-opening and an invaluable experience to learn the reality of dealing with the criminal conviction process and has helped me become aware of some of the big issues that need to be rectified.

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Learning from Farah Jama: A Case of Wrongful Conviction Due to Faulty DNA Evidence

Forensic expert testimony is given pride of place amongst the types of evidence that could be presented within criminal trials. The use of science to determine facts is seen as far superior to subjective eye-witness testimony or patchy circumstantial evidence.

However the case of Farah Jama, who was wrongfully convicted by the Victorian County Court of rape in 2006 on the basis of flawed DNA evidence, should give us pause regarding the ‘specialness’ of forensic science evidence.

The Jama Case

In 2005, a 48 year old woman was found semi-conscious inside a Melbourne nightclub toilet, with no recollection of what had happened the previous evening. Given the circumstances, Victoria Police suspected the woman may have been drugged and assaulted.

The victim was examined by a Sexual Assault Crisis Care Unit within a hospital for a physical examination. Routine swabs were taken and sent to the Victoria Police Forensic Science Laboratory for DNA analysis. The lab results came back with a match for Farah Jama who was arrested, prosecuted and convicted of the crime solely on the basis of the DNA match.

Problem was, Jama claimed he was at his father’s bedside the night of the assault. Moreover, no-one interviewed who was at the club that night had noticed a 19 year old man of African appearance amongst an event which catered to a predominately middle-aged Caucasian crowd.

In early 2009, solicitor Kimani Boden took on Jama’s case pro-bono and asked prosecutors to review the DNA evidence. Once medical files were reviewed by the Victorian Institute of Forensic Medicine, doubts were expressed over the reliability of the DNA “match”. As a result, Jama was acquitted.

The most likely explanation for the faulty DNA “match” was cross-contamination at the hospital where the DNA samples were collected.

Lessons Learned

The Jama case occurred during a period of global scrutiny regarding the reliability of forensic evidence. In 2009, the US National Research Council produced a damning report on the state of forensic science in the US, finding many of the processes in place to validity forensic techniques were without merit.

Following the Jama findings, Justice Frank Vincent was asked to investigate how the prosecution case was mounted and pursued on dubious evidence.

The Vincent Report outlined a number of recommendations to improve the handling of DNA evidence in Australia. Including:

  • Better protocols and standards in relation to the content of examination kits for the collection of forensic samples and related measures to preserve the integrity of the DNA sampling process;

  • Measures to ensure too much trust in forensic science does not compromise the integrity and fairness of criminal prosecutions relying on DNA evidence; and

  • Further research into the presentation of expert DNA evidence in jury trials and its potential to be misunderstood by juries.

The Jama case is a good reminder that all evidence must be subject to scrutiny, even the kinds of evidence derived from the use of scientific methods.

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Investigating Innocence Episode 2: What Do You Hear?

Episode 2 includes an interview with Dr Helen Fraser from the University of New England about the speciality of forensic transcription and its implications for wrongful convictions. It also includes swearing toys and backwards Satanic rock music!

Check out the International Association of Forensic Linguistics Conference Melbourne 1-5 July 2019 iaflconference2019.com

Student Profile: Zoe

How did you get involved in the Innocence Initiative?

I remember seeing Michele and the BOHII office on ‘Exposed: The Case of Keli Lane’, late last year on the ABC. The case intrigued me, and finding out I had the chance to work on this case for my 50-day student internship was extremely exciting. I applied to do my placement here, and have been extremely lucky to have been given the opportunity to be a part of the team.

What do you do?

I review applications coming in, evaluating if they meet our ambit and deciding if there is a way we can establish new evidence. I spend much of my time re-investigating Keli Lane’s case, following up on new leads and information which were not established in the trial and police investigation.

What are the most enjoyable aspects of reviewing cases?

Re-investigating and discovering new information can be very exciting. However, I think the best part of reviewing cases is the fact that we are working for real clients, helping to make a difference in their lives and helping to right the wrongs of the justice system.

What are the most difficult aspects of reviewing cases?

There are a large amount of legal documents that come with cases. Reading and understanding them can be a difficult and lengthy task. However, I believe this is all good practice for a career in the legal system.

Has undertaking this internship changed your view of the criminal justice system?

My view of the criminal justice system has changed enormously. I have realised the importance of scrutiny into the trial processes. We need to be aware and critical of the bias and ignorance which often occurs in our juries, judges, police and media, which can lead to a miscarriage of justice. Unfortunately, we cannot always trust that the justice system will treat us fairly, and it is in everyone’s best interest to be sceptical and critical of the processes.

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Podcast Launch! Investigating Innocence: Episode 1

The Bridge of Hope Innocence Initiative is pleased to launch our new podcast series looking at the cases, issues and causes of wrongful conviction in Australia.

Investigating Innocence, Episode 1 includes an interview with Dr Michele Ruyters, the Director of the Bridge of Hope Innocence Initiative, on the process of reviewing claims of factual innocence.

Student Profile: Riley

The Bridge of Hope Innocence Initiative thrives off the work of our students and volunteers. This series will profile some of the students involved in reviewing claims of factual innocence. Want to get involved? Read this.

How did you get involved in the Innocence Initiative?

I became involved with the Innocence Initiative through my studies of a Bachelor of Criminal Justice at RMIT. I started working here as part of my 50 day placement because it was highly recommended to me by my fellow classmates and other teachers at RMIT.

What do you do?

My role within the Innocence Initiative is to review new applications and to evaluate whether these case fits within our ambit. I am also involved in the reinvestigation of the cases that we are working on as well as other various projects.

What are the most enjoyable aspects of reviewing cases?

There are so many enjoyable aspects in reviewing our cases, the first of which is the investigative work and using our critical thinking to come up with other potential possibilities. Working together as a team has also made it quite enjoyable as we all get to share all our own thoughts and theories. Reviewing new cases is also exciting because we get to use our “gut feeling” and is a good way to break up our work by looking at a fresh case.

What are the most difficult aspects of reviewing cases?

The most difficult aspect of reviewing cases is the amount of reading required to evaluate all of the case material. Sometimes there can be hundreds of documents, some of which can be quite boring and lengthy. Finding a way to break up this work is the best way to overcome its repetitiveness.

Has undertaking this internship changed your view of the criminal justice system?

Working at the Innocence Initiative has definitely challenged my own assumptions about our criminal justice system. It has taught me not to take everything at face value and to apply my critical thinking skills to evaluate thing more deeply. It has also emphasised the importance of integrity and open mindedness in all aspects of the criminal justice system such as investigations and the courts.

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Unknown Unknowns, Disclosure and the Keli Lane Case

As US Secretary of Defence Donald Rumsfeld once said in relation to weapons of mass destruction in Iraq:

There are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don't know we don't know.

Underneath this garbled explanation is a key point on the nature of evidence in criminal trials from a defendant’s perspective: there is evidence that makes you look bad, evidence that makes you look good and evidence you don’t even know about.

Not knowing evidence impacts the basic right of every defendant to receive a fair trial. It’s why police and prosecutors have a comprehensive duty of disclosure to alleviate the stark imbalance in resources that exists.

However, as Innocence Initiatives academics Michele Ruyters, Greg Stratton and myself noted last year – it’s hard to know how frank police and prosecutors are being when it comes to evidence, and this poses a real risk of wrongful convictions.

The Keli Lane Case

As seen in ABC’s Exposed docu-series, one of the Innocent Initiative’s applicants is Keli Lane – the former water polo player who was jailed in 2010 for killing her baby daughter Tegan two days after giving birth.

Ms Lane has maintained her innocence and claimed she gave Tegan to the child’s biological father.

As part of Innocence Initiative and ABC investigations it has been noted that there are key gaps in the evidence disclosed to the defence in Ms Lane’s case by NSW Police.

In particular, NSW Police secretly recorded thousands of Lane’s conversations via phone intercepts and listening devices between 2004 and 2008 – most of which were never disclosed to the defence.

The Innocence Initiative is now working through legal options to access the undisclosed material. NSW Police has refused all attempts to access the material through freedom of information requests. As such, Michele Ruyters has now applied to the NSW Civil and Administrative Tribunal on Ms Lane’s behalf for a review of that decision.

Why It Matters

Most of the evidence gathered during police investigations is of little relevance to proving or disproving guilt. Nevertheless, only through close deciphering of evidence by prosecutors and defence lawyers can that judgment call be made.

In the 1995 wrongful conviction of Andrew Mallard, it was revealed that the prosecution had not disclosed crucial evidence to the defence which indicated Mallard’s innocence.

Mallard spent 12 years in prison before being exonerated when another man’s palm print was found during a cold-case review. He was later given an A$3.25 million compensation payment by the WA government.

Only through a clear and transparent process of investigation and prosecution can we ensure that justice is served in criminal trials.

Written by Jarryd Bartle