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Version of 17 June 2023
© Xamax Consultancy Pty Ltd, 2023
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This document is at http://www.anu.edu.au/people/Roger.Clarke/SOS/TEAC.html
This cluster of preliminary Notes was stimulated by reports of the finalisation of the Folbigg case in June 2023, with a mother who'd been found guilty of successively murdering her four young children released and pardoned after 20 years in gaol. My concern is about the suitability of current court processes to ensure appropriate interpretation by the court of complex technical information, as arises in cases involving information and communications technologies (ICT), scientific data, engineered artefacts, and various aspects of forensic science including biometric and genetic data.
Much more effective ex post mechanisms are needed, such as a Criminal Cases Review Commission (CCRC), to enable consideration of claims of errors and misunderstandings resulting in the miscarriage of justice. My focus is, however, on the kinds of adaptations to court processes that could enable assimilation and integration of complex technical information, addressing the problem at source, and thereby avoiding the destruction of the lives of people subjected to unjust imprisonment.
The ABC's 'Australian Story' ran a half-hour program on the Folbigg case on 12 June 2023 (ABC 2023). The key theme was the incapacity of Australian court systems to cope with matters in which complex technical information is central to the determination of the existence of 'reasonable doubt', or of 'the balance of the probabilities'. (The Folbigg case also involved (b) a rare genetic condition and (c) subsequent scientific discoveries. This note, however, is only about the technical complexity question).
In 2017, when I was invited to launch a Thematic Issue of the UNSW Law Journal on Cyberspace and the Law, I reviewed "experiences that have led me to have serious doubts about the levels of understanding of information technologies achieved during court proceedings", concluding that "consideration of current and emergent information technologies suggests that the complexities of future issues will be well beyond the capacity of courts" (Clarke 2017, p.1493, but see ss. 3-4,. pp.1495-99).
I provided expert evidence in several important cases in the civil juridiction, primarily relating to electronic commerce patents, copyright, and Internet, email and Web-based processes for conducting commercial transactions and payments. I understand that, since that period, c.2000-2015, some progress may have been made towards enabling at least some courts to gain access to technical evidence with less filtering by lightly-regulated and highly adversarially-oriented barristers. See, for example, Bridge (2018). I have not investigated whether more rational processes such as conclaves are improving the results in commercial cases of the kind I was involved in during that period.
Unjust outcomes in cases in the civil jurisdiction are unfortunate. It is considerably more troubling, however, to see miscarriages of justice in criminal cases, as a result of excessive trust in evidence of materially inadequate quality. Although the problem is of long standing, in my generation the Lindy Chamberlain case stands out. Since then, there has been an ongoing stream of problems, in multiple jurisdictions, where the original decision has been shown to be seriously wrong, commonly only after the accused has languished in prison for somewhere between a few years and two decades.
Some leading cases since 1980 are listed in the Appendix. These are merely some instances that have been prominent, because sufficient, sufficiently well-conducted, and sufficiently persistent public activism eventually forced the hands of extremely reluctant authorities. In many of these cases, faulty technical evidence, or faulty interpretation of technical evidence, was a material factor in the miscarriage of justice.
Considerable effort has been invested by proponents of an Australian Criminal Cases Review Commission (CCRC), which they argue needs to operate along similar lines to such bodies overseas (e.g. Kirby 2021, p.6-7, Urban 2022). That is a vital element of an effective judicial system, because it provides a channel with specialist expertise through which requests for reconsideration can be pursued. A CCRC needs to have the scope to consider all issues that may result in an unsafe verdict, including procedural errors, evidentiary problems (including interference, compromise, falsification, creation and suppression), and the subsequent availability of new evidence, as well as misinterpretation of information of a scientific or engineering nature.
In relation to the last of those categories, however, a Review Commission, while necessary, is not sufficient. There is a demonstrable weakness within the judicial system that needs to be addressed as well. As with all cultural artefacts, the adversarial approach that is engrained into court processes in common law countries has its advantanges and disadvantages. It is demonstrably dysfunctional in relation to evidence that involves scientific or engineering complexity. Unless it is clear that the courts are overcoming the problem, whether by means of conclaves or other adaptations of their processes, change needs to be effected through some other means.
This section canvasses some variants to conventional court processes that might assist in ensuring appropriate understanding of technical content. Currently, each person providing expert evidence to the court prepares a conventional document, which includes evidence of their expertise, the questions asked of them, and analysis that culminates in answers to each of those questions. A potential enhancement to that norm is the provision of an appendix that provides the foundational information necessary to underpin the analysis. This would be of the nature of a tutorial, addressed to an intelligent and educated audience, but without the requirement that the reader have any specialist knowledge of the particular technical domain.
Cross-examination and re-examination on the written evidence can proceed in the normal manner, particularly in relation to the witness's claims of expertise and questions related to possibly tainted evidence, such as where an expert may have a pecuniary or policy interest in the matter, or their evidence may have neen inappropriately influenced by one of the parties to the case. Cross-examination on the evidence can, however, be supplemented by various processes that contribute to the assimilation of the information from each source, and the reconciliation and integration of information from multiple sources.
One approach is for the judge to actively question expert witnesses. In common law jurisdictions, this is common in tribunals, and occurs in lower-level courts, but appears to be less common in senior courts.
A technique that has been embodied in the procedures of some courts is sometimes referred to as 'concurrent evidence'. One approach is a 'conclave' in which the experts are instructed to confer, outside the courtroom, possibly with a moderator present, and to produce a joint written statement identifying what is common ground among them, and what points of difference remain. It is strongly preferable that at least the initial meeting be in person; but virtual participation is likely to be satisfactory in many cases, particularly if it enables the conclave to take place at an early date.
If counsel are present in a conclave, it is important that they are present as observers, and do not interfere in the conversation and negotiations among the experts. Guidance in relation to process, and management of the risk of terminological confusions (particularly where words and phrases have special meanings in the context of law and/or of particular knowledge-domains) are best handled by a moderator/facilitator rather than by parties to the case.
A conclave may be complemented by a subsequent session in court where all experts are present simultaneously. This is sometimes referred to as 'hot-tubbing'. The scope of such a session may be the whole of the expert evidence, or it may be restricted to specific aspects. In either case, questions by counsel and by the judge may be responded to by multiple experts in succession. This concentrates the provision of information, rather than dispersing it across separate sessions on multiple hearing-days, possibly weeks apart.
During conventional cross-examination, a judge may address questions to an expert without advance notice, or in effect with notice, by requesting a further written submission on a specific question. These variants can also be applied to conclaves and hot-tubbing, but with the questions addressed to the experts as a whole. The responses are likely to be of greatest assistance to the court if they are collective to the extent that the experts are in agreement, and personal only where material points of difference exist.
Some aspects require prior negotiation among the parties and/or determination by the court, such as whether or not to adopt a 'concurrent evidence' approach, which topics to declare as being within-scope, which experts to include, and what instructions to provide to the participants.
A further possible approach is for the the judge to provide to expert witnesses draft segments of text they intend to use to inform their analysis, or for potential use in their judgment, with feedback provided to the judge by each expert. A further possibility is for collective feedback to be provided by the experts by means of a physical or virtual conclave.
Of course, all such innovations require great care in their design and execution. Court processes are subject to law, to procedural rules, and to practice notes. Each innovation needs to satisfy transparency and equity requirements in relation to the interests of the parties. It is also necessary to ensure that the experts' communications sustain their focus on questions of fact and avoid tripping into questions of law. Different provisions may of course be needed depending on whether the result is to be decided by a judge or a jury.
It is desirable to develop a few vignettes showing, in specific circumstances, how the kinds of processes discussed above could materially reduce the likelihood of serious misunderstandings, increase the quality of information production and assimilation, and reduce the incidence of avoidable miscarriages of justice.
My primary concern is with the courts' capacity to understand technical information about ICT. None of the 'Leading Cases' in the Appendix involve ICT per se. On the other hand, biometrics are data, and meta-data about the conduct of forensic processes is data. Moreover, the rapid development of a surveillance society, and the dominance of the digital persona in law enforcement work, mean that ICT is far more central than it was in the period 1980-2010.
Some possibilities are:
The sole criminal case in which I provided expert evidence involved accusations of the possession of child pornography. During the preliminary phases, I explained to the defendant's solicitor the need for the (WA) Police to provide particular kinds of metadata that would indicate that the presence of the offending content did or did not arise from a conscious act by the accusee. In a succession of rounds prior to the hearing, the Police reduced the number of items that were the subject of the prosecution.
In court, faced with my written and verbal evidence about what information, in my opinion, was needed to establish intention to possess, they reduced the items to a single set of images. The defendant promptly spoke up and said [something along the lines of] 'oh, those pictures of Ukrainian girls at dress-up parties that their mothers take them to. Yes, I downloaded those', After clarification, he changed his plea to Guilty. [ It was a surprise to the accused (and, although it is of no relevance, to me as well) that images of that material are categorised as Grade I child pornography. ]
It may be that a principle or two of relevance to court processes can be extracted from this simple tale.
AAP (2022) 'Scathing report into Queensland DNA lab failures finds thousands of criminal cases need revisiting' The Guardian, 13 Dec 2022, at https://www.theguardian.com/australia-news/2022/dec/13/scathing-report-into-queensland-dna-lab-failures-finds-thousands-of-criminal-cases-need-revisiting
ABC (2017) 'Gene Gibson freed as conviction for Broome manslaughter of Josh Warneke quashed' ABC News, 12 Apr 2017, at https://www.abc.net.au/news/2017-04-12/gene-gibson-josh-warneke-manslaughter-conviction-quashed-appeal/8436550
ABC (2023) 'Fight for Freedom - Kathleen Folbigg' ABC News, 12 June 2023, at https://www.abc.net.au/news/2023-06-12/fight-for-freedom-kathleen-folbigg/102470680
Bibby P. (2012) '19 years on, Gilham acquitted of killing his parents as uncle vows 'It's not over yet'' The Sydney Morning Herald, 25 June 2012, at https://www.smh.com.au/national/nsw/19-years-on-gilham-acquitted-of-killing-his-parents-as-uncle-vows-its-not-over-yet-20120625-20xs2.html
Bourke K. & Png K. (2023) 'Scott Austic given $1.6 million ex-gratia payment after being acquitted of Stacey Thorne's murder' ABC News, 17 May 2023, at https://www.abc.net.au/news/2023-05-17/scott-austic-compensation-after-stacey-thorne-murder-acquittal/102357922
Bridge C. (2018) 'Concurrent evidence conclaves: getting the most out of your hot tub' Law Society Journal 47 (August 2018) 88-89, at https://www.lawsociety.com.au/sites/default/files/2018-08/Litigation%20from%20LSJ_August%202018-3.pdf
Byrne E. & Haybe J. (2018) 'David Eastman and Colin Winchester: Two 'cracks' in the night echoed across 30 years' ABC News, 22 Nov 2018, at https://www.abc.net.au/news/2018-11-22/david-eastman-colin-winchester-murder-legal-saga/10284998
Clarke R. (2017) 'Cyberspace, the Law, and our Future' Invited Preface for a Thematic Issue on Cyberspace and the Law of the UNSW Law Journal 40,4 (November 2017) 1493-1506, at https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2017/11/404_9.pdf, PrePrint at http://www.rogerclarke.com/II/UNSWLJ-CL17.html#UC
Crowley G. & Wilson P. (2007) 'Who killed Leanne Holland?' New Holland, 2007
Edmond G. & Vuille J. (2014) 'Comparing the Use of Forensic Science Evidence in Australia, Switzerland, and the United States: Transcending the Adversarial-NonAdversarial Dichotomy' Jurimetrics 54,3 (Spring 2014) 221-276
Egan C. (2010) 'Murderer No More' Allen & Unwin, 2010
Farrell P. (2015) 'Roseanne Beckett wins $4m in damages for 10 years of wrongful imprisonment' The Guardian, 10 Nov 2015, at https://www.theguardian.com/australia-news/2015/nov/10/roseanne-beckett-wins-4m-in-damages-for-10-years-wrongful-imprisonment
Fife-Yeomans J. (2017) 'Did Gordon Wood kill Caroline Byrne? The Sydney Daily Telegraph, 25 February 2017, at https://www.dailytelegraph.com.au/news/nsw/did-gordon-wood-kill-caroline-byrne/news-story/33535bf267544eb44d142c5cde8b881c
Hagan K. (2009) 'DNA fiasco: rape conviction quashed' The Melbourne Age, 8 December 2009, at https://www.theage.com.au/national/dna-fiasco-rape-conviction-quashed-20091207-kfc3.html
Kirby M. (2021) 'Miscarriages of Justice in Australia: Unfinished Business' Global Journal of Management and Business Research 21,3 (2021), at http://netk.net.au/Judges/Kirby6.pdf
McCusker M. (2015) 'Miscarriages of Justice' Address to the Anglo-Australasian Lawyers Society (Western Australia), 24 June 2015, at http://netk.net.au/MOJGeneral/MOJ4.pdf
Mallett X. (2020) 'Reasonable Doubt' Pan Macmillan, 2020
Marcus C. (2014) 'Henry Keogh released on bail after 20 years in jail on Anna-Jane Cheney murder conviction' ABC News, 22 Dec 2014, at https://www.abc.net.au/news/2014-12-22/henry-keogh-on-bail-after-20-years-jail-cheney-murder-conviction/5983268
Menagh J. (2020) 'Scott Austic wins retrial 13 years into life sentence for murdering pregnant girlfriend Stacey Thorne' ABC News, 14 May 2020, at https://www.abc.net.au/news/2020-05-14/scott-austic-wins-appeal-over-life-jail-murder-stacey-thorne/12245564
Moles R. (2012) 'Losing Their Grip - the case of Henry Keogh' Networked Knowledge, 2012, at http://netk.net.au/ltg/toc.asp
Murphy L. J. (1984) In Chamberlain v R (No 2) ("Chamberlain case") [1984] HCA 7; (1984) 153 CLR 521 (22 February 1984), at http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1984/7.html
Perpitch N. (2008) 'Mickelbergs not happy with compensation' The Sydney Morning Herald, 16 January 2008, at https://www.smh.com.au/national/mickelbergs-not-happy-with-compensation-20080116-1mcq.html
Rayment K. (2010) 'Faith in DNA: The Vincent Report' Journal of Law, Information and Science 7,20 (2010) 238, at http://classic.austlii.edu.au/au/journals/JlLawInfoSci/2010/7.html
RCI (1987) 'Royal Commission of Inquiry into Chamberlain Convictions, Report' Commonwealth Parliamentary Papers (1987), volume 15, paper 192, at https://justice.nt.gov.au/__data/assets/pdf_file/0005/209057/azaria-hamberlain-appendix-av-web.pdf
Sangha B. & Moles B. (2015) 'Miscarriages of Justice: Criminal Appeals and the Rule of Law' LexisNexis, September 2015 (Case Studies in Part II)
Smee B. (2023) 'Terry Irving spent 1,671 days in jail for a crime he didn't commit - and 25 more years seeking justice' The Guardian, 19 Jan 2023, at https://www.theguardian.com/australia-news/2023/jan/19/terry-irving-spent-1671-days-in-jail-for-a-he-didnt-commit-and-25-more-years-seeking-justice
Urban A.L. (2022) 'Australia desperately needs a Criminal Cases Review Commission' The Spectator, 8 February 2022, at https://www.spectator.com.au/2022/02/australia-desperately-needs-a-criminal-cases-review-commission/
Wikipedia Entries:
https://en.wikipedia.org/wiki/Lindy_Chamberlain-Creighton
https://en.wikipedia.org/wiki/Perth_Mint_Swindle#Mickelberg_brothers
https://en.wikipedia.org/wiki/Andrew_Mallard
https://en.wikipedia.org/wiki/David_Eastman
https://en.wikipedia.org/wiki/Kathleen_Folbigg
https://en.wikipedia.org/wiki/Murder_of_Leanne_Holland (re Graham Stafford)
https://en.wikipedia.org/wiki/Death_of_Caroline_Byrne (re Graham Wood)
https://en.wikipedia.org/wiki/List_of_miscarriage_of_justice_cases (14 listed)
Networked Knowledge Entries:
http://netk.net.au/researchprojectshome.asp
http://netk.net.au/KeoghHome.asp
http://netk.net.au/FolbiggHome.asp
http://netk.net.au/WoodHome.asp
Mallett (2020) examines seven cases of miscarriages of justice - Wayne Butler, Kelvin Condren, Henry Keogh, Khalid Baker, Scott Austic, Nicola Gobbo and Andrew Mallard.
In developing this Note, I benefited greatly from information provided by Bill Rowlings, CEO of Civil Liberties Australia, which has invested an enormous amount of effort into problems associated with wrongful convictions and forensics over an extended period, and Bob Moles and Bibi Sangha, whose Networked Knowledge - Miscarriages of Justice site provides access to a very large cache of resources in the area.
Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., a Visiting Professor in the E-Commerce Programme at the University of Hong Kong, and a Visiting Professor in the Department of Computer Science at the Australian National University.
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