From the outside, Australia’s justice system creates a sense of order and safety that many who have not had cause to look too closely assume is – while not perfect – pretty good.
And while it may be true that our legal and court proceedings lack much of the wildcard energy of the American system or other less developed nations, anyone who has been up close and personal with the Australian judicial system knows that it is far from foolproof.
“Nobody wants to acknowledge a possible mistake,” explains Neil Mercer, the Walkley Award–winning investigative crime journalist and author with more than 50 years of experience across Australian print and broadcast media.
Appearing this week on former homicide detective Gary Jubelin’s I Catch Killers podcast, he reveals a deeply-ingrained unwillingness in this country to look at the potential for wrongful conviction.
“There’s a reluctance around the country to say, ‘there’s something seriously wrong here’”, he says.
Mercer, who throughout his multi-decade career has built a reputation for uncovering corruption, misconduct and systemic failings, is on the publicity trail for his latest book, Falsely Convicted: True Stories of Injustice in Australia. The book explores how easy it is – whether through forensic missteps, misinterpretation of evidence, discrimination and bias or simply police inertia – for grave miscarriages of justice to occur in the lucky country.
Sitting down with Jubelin, Mercer explores just a few of the cases that have stayed with him through his research.
Harry Blackburn: Trial by media
When former NSW superintendent Harry Blackburn was arrested and branded a serial rapist in 1989, an entire city was in a state of outrage. A spate of attacks across Sydney’s south had been attributed to the ex-police officer, based on what turned out to be questionable identifying testimony.
“One day, the media’s called up to police headquarters,” Mercer recalls. “This is an off the record briefing. This is a big deal. A big story is brewing, and we’re then briefed in great detail about how the New South Wales Police have been reinvestigating a series of historical rapes.”
The reporters were told the assaults had been committed by the same man.
“We were stunned to hear that the person who was alleged to have done this is Harry Blackburn, the former superintendent,” Mercer explains.
“It’s even more stunning because at this stage, Harry’s not been arrested. He’s actually at work, oblivious to what’s about to happen. The media’s given all the details, so the radio, TV, newspapers are all set to go when Harry gets arrested about an hour or so later.”
While reporting for Four Corners in 1989, Mercer initially assumed Harry Blackburn was guilty. That is, until a source phoned him to reveal Blackburn had the wrong blood group to be the attacker.
Later, when Mercer interviewed one of the sexual assault victims off-camera, she insisted her attacker was much younger than Blackburn, and revealed that when she told detectives this they deliberately excluded her statement from the brief.
Harry Blackburn was completely exonerated and never went to trial or jail.
Andrew Mallard – Withheld evidence
When eccentric 31-year-old artist Andrew Mallard was interrogated in unrecorded interviews about the bludgeoning killing of Perth jewellery shop owner Pamela Lawrence in 1994, it seemed at first that police had their man.
Mallard, who was battling severe mental illness, speculated in the third person about what “an evil man” might have done, which detectives quickly framed as a confession.
“He goes to trial, he’s convicted, and he’s sent to jail,” explains Mercer.
“There’s an appeal to the Court of Criminal Appeal. No, nothing to see here.”
“At the trial, the prosecutor says – ‘cause police had some difficulty establishing what the murder weapon was – that Pamela Lawrence sustained these terrible injuries to her head,” recalls Mercer.
“But they couldn’t quite figure out what sort of weapon had caused it, and they finally settled on the fact that it was a wrench. The prosecutor mentions this 80 times during the trial, that it’s a wrench.”
In reality, police testing on a pig’s head months earlier had proved a wrench could not have caused the injuries, Mercer explains.
Mallard went on to serve 12 years of his sentence, until the High Court of Australia quashed his conviction in 2005. Eventually a forensic review matched an unidentified palm print and paint flecks from the crime scene to Simon Rochford, a convicted killer who died in his cell shortly after being publicly named the prime suspect in 2006.
Farah Jama: Catastrophic DNA contamination
When 18-year-old Somalian refugee Farah Jama was arrested on suspicion of drugging and raping a 48-year-old woman in a Melbourne nightclub, there was only one thing tying him to the crime.
He wasn’t captured inside the nightclub – which was for patrons over 28 – no one in the nightclub recalled seeing him at all, and the survivor herself had no memory of ever having seen or spoken to him.
Yet the DNA swab taken from her at the hospital came back as a match.
“What happens in court is that the prosecution says DNA is essentially infallible,” explains Mercer.
“[They said] it is 800 billion times more likely to have come from the young man than anyone else. I don’t understand how you can reach that number, but that’s what’s presented, and if you’re the member of the jury, that’s gotta be convincing. You’ve gotta say it’s him.”
As it turned out, in a deeply uncanny coincidence, a woman who had engaged in consensual sex with Jama had presented at the same hospital for a reason unrelated to the case.
Cross-contamination had occurred, and it was revealed – after spending 16 months in prison – that Jama was in fact innocent.
“DNA is not infallible,” Mercer explains. “There was no other corroboration. That was the sole evidence, and it was wrong.”