Science Starts to Respond to the Legal System

2 June 2024

Scientists and others, like doctors, who are of a scientific bent have for years despaired of the legal system whose practitioners seem to have little respect for knowledge other than their own and accept very poor scientific evidence.  Now the high-profile head of the Australian Academy of Science, Prof Anna-Maria Arabia, who gave evidence in the Folbigg case has hit back.  Kathleen Folbigg was accused of killing 3 of her children, but later scientific evidence showed that they had a genetic defect.  Prof Arabia is looking at the relationship between science and the law and wants to put a bit more discipline into the science-law relationship. All power to her arm!

‘It could be any of us’: Top scientists sound alarm over unreliable evidence

By Michael Bachelard, Nick McKenzie and Ruby Schwartz

Sydney Morning Herald   June 2, 2024 — 8.00pm

Australia’s peak science body has called the triple-murder conviction of Robert Farquharson for driving his sons into a dam in 2005 into question, saying it was partly based on unreliable scientific evidence and his case would be ripe for review if the nation had a mechanism to reconsider old convictions.

Farquharson is serving a 33-year prison sentence in the protection unit of Victoria’s Barwon Prison after being twice found guilty of murdering his three children by driving them into a dam on Father’s Day in 2005, and with an appeal court affirming his guilt. But a number of legal and scientific experts have questioned the evidence that convicted him.

Australian Academy of Science chief executive Anna-Maria Arabia said, speaking generally, that courts were susceptible to “junk science” being admitted and that cases such as Farquharson’s demonstrated the need for significant legal reforms to try to prevent the use of unreliable evidence.

“Every member of the public should be concerned about a justice system that is not adequately informed by science. Any one of us could be Robert Farquharson,” she told this masthead and 60 Minutes.

Arabia said cases such as Farquharson’s, and the recent release of Kathleen Folbigg, who spent 20 years in prison for murdering her three children and manslaughter of the fourth, showed that expert scientific witnesses should be independently selected based on their expertise, and that the evidence they give should be proved reliable before a jury could hear it.

She also called for a review mechanism that sits alongside the court system to look at possible miscarriages of justice.

“The system ought to be more robust than it is. And it can be. It can be reformed. It takes some political will; it takes some courage,” she said.

Arabia said she had serious concerns about a number of the “strands” of the scientific and circumstantial evidence used to convict Farquharson. Among her concerns were the quality of the medical and traffic reconstruction evidence that convinced two juries and an appeal court of his guilt.

Farquharson told police he coughed and passed out in the lead up to the crash – a condition called cough syncope – which meant he was unconscious when his car drove into the dam.

Lawyers for Farquharson have flagged a new appeal later this year, under a Victorian law introduced in 2019 that allows prisoners to present “fresh and compelling evidence” to the court where a conviction constitutes a substantial miscarriage of justice.

Farquharson’s lawyer, Luke McMahon, said this was a high legal bar which “places the onus back on the accused”, and was “not really an examination of how things unfolded”. Since the convicted person is often in prison, the appeal mechanism also often requires lawyers to work pro bono, or without pay, to take on cases.

Arabia said that “in the vast majority of cases, that is not enough” to address problematic cases.

The Academy of Science has called for a standing tribunal like those in New Zealand, the United Kingdom and Norway, which employ dedicated staff to identify and investigate possible miscarriages of justice. Known as a Criminal Cases Review Commission in the UK and New Zealand, these bodies can examine cases where there are developments in scientific or other evidence, then refer them, with advice, back to the courts or the government.

Asked if the Farquharson case would be a lead candidate for such a tribunal, Arabia said the medical evidence of cough syncope “would be considered new evidence that should be assessed by something like a Criminal Cases Review Commission to see if it meets a threshold to reopen and re-examine this case.

“It should not be beyond the realm of possibilities to establish a criminal case review commission in Australia and to resource it adequately. After all, this enables the delivery of justice to the Australian people. It should be a bare minimum requirement as part of our justice system,” she said. “Australia really is an outlier in this area.”

Police involved in the Farquharson case declined interviews, but Assistant Commissioner Glenn Weir said in a statement that Victoria Police “stands behind the rigorous investigation which led to the 2010 conviction of Robert Farquharson”.

“We consider this matter finalised and will not be commenting further. In the event of any appeal by Farquharson, we will respond as required,” he said.

A recent book by Stephen Cordner, the head of international programs at the Victorian Institute of Forensic Medicine, and retired physician Kerry Breen, said the UK case review commission had referred 657 cases to the court of appeal over 22 years, with 441 convictions quashed.

Translated to Australia, that would mean eight or nine wrongful convictions a year, they wrote in their book, Wrongful Convictions in Australia.

In the United States, the Innocence Project had overturned more than 350 cases. False confessions, inaccurate eyewitness evidence, misleading forensic evidence, police misconduct and bad defence were key errors, they wrote.

Arabia has also called for changes to the treatment of expert evidence. Currently, people accepted as experts can give their opinions in court based on their knowledge, but they are selected by the parties – prosecution and defence – and are not always the most qualified people, Arabia said.

“How do we get the right experts before our judges and juries, selected for the right reasons, not … because they’re good presenters in court, but because they are the best possible expert who has the best available knowledge?” Arabia said.

The Academy of Science also wants a “reliability standard”, so that courts do not admit expert evidence unless it can be demonstrated that it is reliable.

In the absence of such a standard, Arabia said, “pseudoscience and junk science can be admitted into court, and juries and judges will consider that as part of their deliberations. I think most people would … be shocked by that.”

Arabia said accomplished scientific experts often did not want to give evidence in courts because “it is such a hyper-adversarial situation, and what ends up happening is that those experts are asked about matters that are well beyond their area of expertise.

“We have scientists who come to the Australian Academy of Science, having been expert witnesses in a case, thinking they’re doing the right thing, who have felt so cornered or manipulated in that process that they will never do it again,” she said.

“What a great loss for our justice system, that some of the most reliable and best minds in our country feel that that is a forum where they can’t present their best, their knowledge.”

Arabia said reform would require attorneys-general at the state and federal levels to “roll up their sleeves and commit to looking at improving the systems so that they can deliver justice for everyone equally”.

Victorian Attorney-General Jaclyn Symes declined requests for an interview on the academy’s proposals. In a statement, a departmental spokesperson said: “Victoria’s justice system has processes in place to ensure the quality and reliability of forensic evidence presented in court.”

The government was monitoring the effectiveness of these processes, the statement said, and was “reviewing any opportunities for improvement, including discussions with other states and jurisdictions”.

NSW Attorney-General Michael Daley’s spokesperson said there were “existing mechanisms in place” to allow the state’s courts to consider scientific evidence and also for “ad hoc inquiries into convictions, as occurred with the 2022 Folbigg Inquiry”. The state’s experts code of conduct said their “paramount duty is to assist the court impartially”.

Federal Attorney-General Mark Dreyfus declined to comment.

Arabia said courts were doing their best, but advances in science made it difficult to be across all the detail.

In the Farquharson case, Arabia said she was concerned by medical evidence about cough syncope which painted the condition as “extremely rare”, and the traffic reconstruction evidence, in which police experts said the car was subject to three conscious steering inputs by the driver, who therefore could not have been unconscious.

She said there were also questions about the memory evidence of two key witnesses. One, Dawn Waite, did not come forward until four years after Farquharson drove into the dam. Another witness, Greg King, told how his memory of a conversation incorporated more features over time of events that had subsequently occurred.

“We know scientifically that memory evidence is quite unreliable. And memory can be open to change based on external stimuli, things like media reporting, things like discussion, things like looking at photos, dreams,” Arabia said.

Victorian Criminal Bar Association vice chairman Jason Gullaci, SC, said most lawyers would welcome another layer of review from a criminal cases review commission.

“It’s an excellent idea. And I think it’s got real merit,” Gullaci said. “Where there are advances in science that then call into question previous expertise and opinions that were thought to be valid, but that if it has had a significant impact on a trial and conviction and is likely [to have] caused a miscarriage of justice, I think the criminal lawyers would want that rectified, whichever side of the fence they stand on.”

This article was at www.smh.com.au/national/victoria/it-could-be-any-of-us-top-scientists-sound-alarm-over-unreliable-evidence-20240528-p5jh7q.html

Watch the 60 Minutes special episode here. https://www.9now.com.au/60-minutes/season-2024/episode-18