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Forensic Science Evidence, Wrongful Convictions and Adversarial Process
FORENSIC SCIENCE EVIDENCE, WRONGFUL CONVICTIONS AND ADVERSARIAL PROCESS DAVID HAMER* AND GARY EDMOND† The adversarialist approach to criminal justice places a premium on autonomy, efficiency and finality. It trusts that giving parties control will put reliable comprehensive evidence before the trial court. Where forensic science evidence is involved, this trust is often misplaced, and factual accuracy suffers. Often, prosecution forensic science evidence is of unknown reliability and biased, yet the trial judge stays above the fray and allows its admission, the defence lacks the resources to challenge it successfully, and the jury defers to the expert and convicts. On appeal, the appeal court is wary of challenging the jury verdict and reluctant to allow the defence a recontest with bolstered evidence or a different strategy. Post appeal, the opportunities for correction are more limited still. The adversarialist approach to forensic science evidence has contributed to many wrongful convictions. Courts should adopt a more interventionist and informed approach to forensic science evidence. I INTRODUCTION Criminal litigation in Australia operates on a broadly adversarial basis. While not unqualified, the adversarial ethic permeates all stages from investigation through trial to appeal and post appeal. The adversarial design serves the goals of individual autonomy and finality while, at the same time, purportedly resolving disputes accurately. However, the recent wave of exonerations across the common-law world reveals that the goal of factual accuracy is achieved less frequently than was once believed.1 Indeed, examination of errors, and the system’s response to them, lends support to the proposition that the adversarial system may sacrifice accuracy in the pursuit of autonomy and finality. -
Law Review L
Adelaide Adelaide Law Law ReviewReview 2015 2015 Adelaide Law Review 2015 TABLETABLE OF OF CONTENTS CONTENTS ARTICLES THEArronTHE 2011 Honniball 2011 JOHN JOHN BRAY BRAY ORATIONPriv ORATIONate Political Activists and the International Law Definition of Piracy: Acting for ‘Private Ends’ 279 DavidDavid Irvine Irvine FreeFrdomeedom and and Security: Security: Maintaining Maintaining The The Balance Balance 295 295 Chris Dent Nordenfelt v Maxim-Nordenfelt: An Expanded ARTICLESARTICLES Reading 329 THETHE UNIVERSITY UNIVERSITY OF OF ADELAIDE ADELAIDE JamesTrevorJames Allan Ryan, Allan and andProtecting Time Time and and Chance the Chance Rights and and theof the ThosePrevailing Prevailing with Orthodoxy Dementia Orthodoxy in in ADELAIDEADELAIDE LAW LAW REVIEW REVIEW AnthonyBruceAnthony Baer Senanayake Senanayake Arnold ThroughLegalLegal Academia AcademiaMandatory Happeneth Happeneth Registration to Themto Them of All All — —A StudyA Study of theof the Top Top Law Law Journals Journals of Australiaof Australia and and New New Ze alandZealand 307 307 ASSOCIATIONASSOCIATION and Wendy Bonython Enduring Powers? A Comparative Analysis 355 LaurentiaDuaneLaurentia L McOstler McKessarKessar Legislati Three Three Constitutionalve Constitutional Oversight Themes of Themes a Bill in theofin theRights: High High Court Court Theof Australia:of American Australia: 1 SeptemberPerspective 1 September 2008–19 2008–19 June June 201 20010 387347347 ThanujaKimThanuja Sorensen Rodrigo Rodrigo To Unconscionable Leash Unconscionable or Not Demands to Demands Leash -
Thursday, 22 June 2017
No. 39 2203 SUPPLEMENTARY GAZETTE THE SOUTH AUSTRALIAN GOVERNMENT GAZETTE PUBLISHED BY AUTHORITY ADELAIDE, THURSDAY, 22 JUNE 2017 CONTENTS Appointments, Resignations, Etc. ............................................ 2204 Boxing and Martial Arts Act 2000—Notice ............................ 2204 Communities and Social Inclusion Disability Services, Department for—Notices ..................................................... 2205 Consumer and Business Services—Notice .............................. 2205 Controlled Substances Act 1984—Notice ............................... 2208 Domiciliary Care Services—Notice ........................................ 2205 Emergency Services Funding Act 1998—Notice .................... 2206 Environment, Water and Natural Resources, Department of—Notice ....................................................... 2209 Harbors and Navigation Act 1993—Notices ........................... 2206 Health Care Act 2008—Notices .............................................. 2207 Passenger Transport Regulations 2009—Notices .................... 2213 Police Service—Fees and Charges .......................................... 2216 Proclamations .......................................................................... 2223 Public Sector Act 2009—Notice ............................................. 2217 All public Acts appearing in this gazette are to be considered official, and obeyed as such Printed and published weekly by authority of SINEAD O’BRIEN, Government Printer, South Australia $7.21 per issue (plus postage), $361.90 -
Could We Build Justice Safety Centers?
(2020) 1:2 INNOCENCE AND PREVENTION: SAFETY CENTERS 253 Innocence and Prevention: Could We Build Justice Safety Centers? James Doyle Of Counsel: Bassil & Budreau, LLP Boston, Massachusetts U.S.A. Some contemporary writers argue that wrongful convictions represent system failures in a complex criminal justice system. Currently explorations are underway into whether pursuit of non-blaming, all-stakeholders, forward-looking “sentinel event” reviews focused on lowering risk rather than laying blame can improve safety from wrongful convictions. This article reviews the underlying theory of safety-based practices and sketches one model of how work on preventing wrongful convictions might be institutionalized: made a part of a new culture of continuous improvement that lowers the risk of future wrongful convictions and offers a degree of restorative justice to the victims of errors. I. Using Safety’s Wider Lens II. Reviewing the Event, Not the Performance III. A Place to Learn: Creating the Space for Stories IV. Marshaling, Interrogating, Improving, and Disseminating Data V. A Model to Amend (Or Reject) Innocence work naturally prioritizes a tight, reactive focus—a concentration on apprehending errors and rescuing individual clients. But the people closest to the suffering of the justice system’s victims are also best placed to appreciate the restorative value of honoring their exonerated clients’ perspectives, recognizing the harms done to the original crime’s victims, and preventing new tragedies. Like it or not, innocence workers and exonerated -
Eastman V the Queen [2015] ACTCA 24
Networked Knowledge Law Report Eastman v The Queen [2015] ACTCA 24 This is an edited version of the judgment and the expressions contained within it should not be relied upon without checking against the original judgment which is available at http://www.austlii.edu.au/au/cases/act/ACTCA/2015/24.html - this page set up by Dr Robert N Moles - underlining where it occurs is for editorial emphasis. 10 June 2015 - Wigney J, Walmsley and Robinson AJJ Application for judge to disqualify himself from hearing an application for permanent stay of the accused’s trial – apprehended bias – where apprehended bias claimed to arise from past professional association between judge and witness - whether incorrect test for apprehended bias applied – whether judge should have recused himself on the basis of apprehended bias. The Court orders that: (1) The appeal is allowed. (2) The order made by Whealy AJ [W] on 24 April 2015 dismissing the appellant’s application that W recuse himself from hearing the appellant’s application that his trial be permanently stayed is set aside. (3) W be disqualified from hearing the appellant’s application that his trial be permanently stayed. THE COURT: The test for a judge to apply in considering an application for disqualification or recusal on the basis of apprehended bias is well settled and relatively easy to state. It is, however, not always easy to apply. It involves questions of degree and value judgment and the balancing of sometimes competing considerations. The line is not always easy to draw. This is such a case. David Eastman [E] is to be re-tried on a charge that he murdered the Assistant Commissioner of the Australian Federal Police. -
THE ADELAIDE LAW REVIEW Law.Adelaide.Edu.Au Adelaide Law Review ADVISORY BOARD
Volume 40, Number 3 THE ADELAIDE LAW REVIEW law.adelaide.edu.au Adelaide Law Review ADVISORY BOARD The Honourable Professor Catherine Branson AC QC Deputy Chancellor, The University of Adelaide; Former President, Australian Human Rights Commission; Former Justice, Federal Court of Australia Emeritus Professor William R Cornish CMG QC Emeritus Herchel Smith Professor of Intellectual Property Law, University of Cambridge His Excellency Judge James R Crawford AC SC International Court of Justice The Honourable Professor John J Doyle AC QC Former Chief Justice, Supreme Court of South Australia Professor John V Orth William Rand Kenan Jr Professor of Law, The University of North Carolina at Chapel Hill Professor Emerita Rosemary J Owens AO Former Dean, Adelaide Law School The Honourable Justice Melissa Perry Federal Court of Australia The Honourable Margaret White AO Former Justice, Supreme Court of Queensland Professor John M Williams Dame Roma Mitchell Chair of Law and Former Dean, Adelaide Law School ADELAIDE LAW REVIEW Editors Associate Professor Matthew Stubbs and Dr Michelle Lim Book Review and Comment Editor Dr Stacey Henderson Associate Editors Kyriaco Nikias and Azaara Perakath Student Editors Joshua Aikens Christian Andreotti Mitchell Brunker Peter Dalrymple Henry Materne-Smith Holly Nicholls Clare Nolan Eleanor Nolan Vincent Rocca India Short Christine Vu Kate Walsh Noel Williams Publications Officer Panita Hirunboot Volume 40 Issue 3 2019 The Adelaide Law Review is a double-blind peer reviewed journal that is published twice a year by the Adelaide Law School, The University of Adelaide. A guide for the submission of manuscripts is set out at the back of this issue. -
The Normativity of the Principle of Legality
THE NORMATIVITY OF THE PRINCIPLE OF LEGALITY B RENDAN LIM* The constitutional justification for the principle of legality has been transformed. Its original basis in a positive claim about authentic legislative intention has been repudiat- ed. Statutes today are so far-reaching that it would be wrong to suppose any actual improbability in legislative intentions to abrogate common law rights. Two rival justifications for the principle have emerged in response. One is a refined positive claim: legislatures do not intend to abrogate ‘fundamental’ rights. The other is a normative claim: courts should attribute an intention not to abrogate rights in order to improve the political process. Distinguishing these justifications answers the vexed question of which rights engage the principle of legality. ‘Fundamental’ rights, in the first claim, just are those rights that legislatures do not, in fact, intend to abrogate. The normativity of the second claim is engaged not by ‘fundamental’ rights, but by ‘vulnerable’ rights not adequately protected by the ordinary political process. ‘Vulnerable’ rights may originate not only in the common law but also in statutes. CONTENTS I Introduction .............................................................................................................. 373 II The Principle of Legality Transformed .................................................................. 378 A Myth of Continuity ..................................................................................... 378 B Original Justification and -
University of Adelaide, Australia 13 – 20 January 2019
GATEWAY TO COMMON LAW University of Adelaide, Australia 13 – 20 January 2019 adelaide.edu.au THE UNIVERSITY OF ADELAIDE Study common law at one of the oldest universities in the Southern Hemisphere. This intensive one-week program is specifically designed for advanced undergraduate students who would like to study common law system from a comparative perspective. Taught by experienced academic staff from Adelaide Law School, Australia’s second oldest law school established in 1874, students will grasp great knowledge of various aspects of Australian legal system. COST: $1,400 AUD LECTURES & FIELD TRIPS SEMINARS WELCOMING LEARNING LUNCH MATERIALS 7 NIGHTS LIBRARY ACCOMMODATION (Single room, breakfast ACCESS and dinner included) ON-CAMPUS CERTIFICATE OF WI-FI ATTENDANCE Gateway to Common Law University of Adelaide, Australia, 13 – 20 January 2019 STUDY IN CAFÉ CULTURE Adelaide is one of Australia’s most cosmopolitan cities, with an array of cafés, restaurants and shops reflecting the diversity of its ethnic communities. Adelaide is reputed THE CENTRE OF to have more cafés and restaurants SHOPPING per head of population than any Adelaide boasts a range of other city in Australia. shopping experiences comparable to anywhere in Australia. Within the CBD, Rundle Mall ADELAIDE has the biggest concentration of department and chain stores, while within walking distance are Adelaide Law School is located in the trendy boutiques, pubs and cafés. University of Adelaide’s North Terrace Campus, in the city centre of Adelaide, capital of South Australia. Students will study in a modern campus with shining historical buildings, and within walking distance to South Australia Parliament, Museum, State Library, Art Gallery and CBD. -
3 0 APR 2018 and STATE of VICTORIA the REGISTRY BRISBANE Plaintiff 10 ANNOTATED SUBMISSIONS for the ATTORNEY-GENERAL for the STATE of QUEENSLAND (INTERVENING)
IN THE HIGH COURT OF AUSTRALIA No. M2 of2017 MELBOURNEREG~IS~T~R~Y--~~~~~~~ BETWEEN: HIGH COURT OF AUSTRALIA CRAIG WILLIAM JOHN MINOGUE FILED Plaintiff 3 0 APR 2018 AND STATE OF VICTORIA THE REGISTRY BRISBANE Plaintiff 10 ANNOTATED SUBMISSIONS FOR THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (INTERVENING) PART I: Internet publication I. These submissions are in a form suitable for publication on the Internet. PART 11: Basis of intervention 2. The Attorney-General for the State of Queensland ('Queensland') intervenes in these 20 proceedings in support of the defendant pursuant to s 78A of the Judiciary Act 1903 (Cth). PART Ill: Reasons why leave to intervene should be granted 3. Not applicable. PART IV: Submissions 30 Summary 4. Queensland's written submissions are confined to addressing the novel arguments of the plaintiff directed to constitutionalising his particular conception of the rule of law. The plaintiff submits that if ss 74AAA and 127A ofthe Corrections Act 1986 (Vie) apply to his parole application then they operate retrospectively and that such retrospectivity is inconsistent with the constitutional assumptions of the rule of law and therefore 40 invalid. 1 1 Plaintiffs submissions, 2 [4](c), 19 [68]; (SCB 84(36), 85(37)(c)). Intervener's submissions Mr GR Cooper Filed on behalf of the Attorney-General for the State CROWN SOLICITOR of Queensland (Intervening) 11th Floor, State Law Building Form 27c 50 Ann Street, Brisbane 4000 Dated: 30 April2018 Per Kent Blore Telephone 07 3239 3734 Ref PL8/ATT110/3710/BKE Facsimile 07 3239 6382 Document No: 7880475 5. Queensland's primary submission is that ss 74AAA and 127 A ofthe Corrections Act do not operate retrospectively as they merely prescribe criteria for the Board to apply in the future. -
The Right to Keep Secret Guns
The Right to Keep Secret Guns Registering Firearms to Reduce Gun Violence Philip Alpers New Zealand Police Association (Inc.) Wellington July 1997 2 Guns In New Zealand A Brief Background In New Zealand, 250,0001 licensed shooters own an estimated 1.1 million firearms,2 enough for one in each occupied dwelling3 and sufficient to outnumber the combined small-arms of the police4 and armed forces5 by a ratio of 30 to 1. We own 11 times as many guns per capita as the English and the Welsh,6 60% more than the Australians7 but less than half as many as the residents of the United States.8 An additional 14,000 guns are imported to New Zealand in a typical year.9 Each day an average of seven firearm offences involving danger to life are reported to the police,10 while one in five homicides are committed with a firearm.11 In a typical year 99 New Zealanders are shot to death: one for every 88 hours.12 Of these, 75% are suicides, 12% homicides, and 11% accidents.13 In an average year, 13 children and youths aged 19 or younger die from gunshot wounds14 and another 89 people are admitted to hospital with non- fatal wounds. 15 Our gun death toll is 15% higher than the toll from cervical cancer. For every ten New Zealanders who die from HIV/AIDS, sixteen die by gunshot. Gun death is three times more common than death by fire.16 Of all victims of gun homicide in this country during 1992-94, most (52.5%) were shot by a licensed gun owner. -
Premier Jay Weatherill News Release
News Release Premier Jay Weatherill Tuesday , 3 January 2015 Maher joins Cabinet as Close takes Education and Child Development Kyam Maher is the new Minister for Manufacturing and Innovation and Minister Susan Close will take on the Education and Child Development portfolio following a swearing in ceremony at Government House. Premier Jay Weatherill said today’s reshuffle was necessitated by Monday’s retirement of Jennifer Rankine from the Ministry. “Beyond the replacement of Minister Rankine it is essentially a fine-tuning of portfolios,” he said. Other changes include Deputy Premier John Rau taking on the new portfolio of Child Protection Reform meaning he takes responsibility for responding to the findings of the Royal Commission into Families SA and the Coroner’s findings from the Chloe Valentine inquest. Sustainability, Environment and Conservation Minister Ian Hunter gains the new portfolio of Climate Change while Minister Close retains the Public Sector portfolio and takes on Education and Child Development. Member for Reynell Katrine Hildyard joins executive Government as a Parliamentary Secretary to the Premier. Mr Maher will also take on the responsibility as Minister for Automotive Transformation and Minister for Aboriginal Affairs and Reconciliation. Mr Weatherill welcomed Mr Maher to the Cabinet table saying he has demonstrated acuity on committees and as a member of the Legislative Council. “Kyam took up a parliamentary secretary role last year and is one of the crop of young talented individuals ready to step up,” Mr Weatherill said. “He is former State Secretary of the Labor Party and was also a chief of staff to former Minister Terry Roberts who held the portfolios of Regional Affairs, Aboriginal Affairs and Correctional Services. -
The Comparative Distinctiveness of Equity
(2016) 2(2) CJCCL 403 The Comparative Distinctiveness of Equity Justice Mark Leeming Judge of Appeal of the Supreme Court of New South Wales* 2016 CanLIIDocs 51 Comparative law is difficult and controversial. One reason for the difficulty is the complexity of legal systems and the need for more than a merely superficial knowledge of the foreign legal system in order to profit from recourse to it. One way in which it is controversial is that it has been suggested that the use of comparative law conceals the reasons for decisions reached on other grounds. This paper maintains that equity is distinctive, and that one of the ways in which equity is different from other bodies of law is that there is greater scope for the development of equitable principle by reference to foreign jurisdictions. That difference is a product of equity’s distinctive history, underlying themes and approach to law-making. Those matters are illustrated by a series of recent examples drawn from appellate courts throughout the Commonwealth. * I am grateful for the assistance provided by Kate Lindeman and Hannah Vieira in the preparation of this article. All errors are mine. 404 Leeming, The Comparative Distinctiveness of Equity I. Introduction II. The Problem of Generality III. The Use of Foreign Equity Decisions IV. The Variegated Common Law of the Commonwealth V. Three Examples of Equitable Principle in Ultimate Appellate Courts A. Barnes v Addy: Liability for Knowing Assistance in Australia, Canada, and the United Kingdom B. Qualifications to the Rule in Saunders v Vautier C. Judicial Advice 2016 CanLIIDocs 51 VI.