Shortcut: How Common Are Miscarriages of Justice in Australia?

Meshel Laurie (0:03)

This is Australian True Crime with Meshel Laurie, and in today's episode, we're asking, how common do you think miscarriages of justice are in Australia? Professor Stephen Cordner has been at the forefront of forensic medicine for decades. His expert evidence has been relied upon around the world, from domestic courtrooms to international human rights tribunals. He's had a front row seat to some of Australia's most controversial cases, from Lindy Chamberlain to Kathleen Folbigg. And alarmingly, he believes we have a significant and largely unmeasured problem with miscarriages of justice.

Dr. Cordner has written a book called Wrongful Convictions in Australia, and he joins us to talk about it.

This is Australian True Crime. We acknowledge the traditional owners of the land on which this podcast is created, the Wurundjeri Woi Wurrung people of the Kulin Nation. And a warning, this episode of the podcast contains graphic descriptions of violence.

Stephen Cordner (1:04)

I have been a believer and supporter in the criminal justice system. I don't think the criminal justice system should be thrown out, okay?

But like most systems, it's got room for improvement. The health care system has had a revolution in the last 30 years, because it shifted from doctor knows best to evidence-based medicine. And so it wasn't simply doing something because the doctor said so. You can now say to the doctor, why is that your advice? And the doctor should be able to say because there's evidence, A, B, and C, there isn't a comparable approach to preventable things in the criminal justice system.

Meshel Laurie (2:01)

And your experience in this area is unique and it is extraordinary, really. I mean, we'll talk about the fact that the Victorian Institute of Forensic Medicine, you were the inaugural, what was the actual title? Director. Director and the facilities are excellent and they chase excellence all the time, don't they, Vipham? I mean, it's one of the most serious forensic medicine institutions in the world, I would say.

Stephen Cordner (2:23)

Well, yeah, I mean, I'm a bit biased, of course, but it does well with all of the advantages that it's got, because it has got a lot of advantages, it is well-supported. The two biggest wrong convictions in Australia, Lindy Chamberlain and Kathleen Folbigg, were not crimes at all.

Meshel Laurie (2:46)

Of course. Yeah. And no evidence that they were.

Stephen Cordner (2:52)

So Lindy Chamberlain was, you know, Isaiah was the victim of a shocking, awful, I don't know what you call it, an accident that, a dingo came and took her. And Kathleen Folbigg's babies died naturally.

Meshel Laurie (3:10)

Of genetic?

Stephen Cordner (3:12)

Of genetic abnormalities.

Meshel Laurie (3:13)

Kathleen Folbigg was convicted of murdering her four babies. And did you then review the postmortems of the babies?

Stephen Cordner (3:23)

Yeah. So I sort of felt, given that I felt that. And this was, you know, a mother possibly wrongly in prison for killing her four babies over a 10-year period. I got in touch with the Public Interest Law Centre in Newcastle, which was trying to sort of pull some things together on her behalf. So we're talking 2012, and offered you with a sort of heart in my mouth because I knew it was going to be a huge amount of material.

So over the course of the following 12 months, I reviewed that material and wrote a report, which finally landed on the desk with a submission for why there should be a review of this conviction, landed on the desk of the Attorney General in New South Wales in 2015 And he responded in 2018, three years later. And herein lies one of the big, big problems for people who are wrongly convicted in jail. It got to go through with some minor exceptions in New South Wales. It got to go through the Attorney General, who's a politician, who's generally speaking, farting a law and order platform.

Meshel Laurie (4:53)

And very difficult to at any stage stand up for Kathleen Folbigg, hasn't it? It's been very difficult to stand up, as you would know better than anyone and say, I don't think this lady killed her four babies.

Stephen Cordner (5:03)

Well, it's important that I say, I never said that.

Meshel Laurie (5:07)

Okay.

Stephen Cordner (5:09)

And I don't have any doubt now that she did not.

But that's not something for the forensic pathologist to say. But what I was pointing out is all of the problems and what people were saying that couldn't be supported.

Meshel Laurie (5:24)

And well, can I...

Stephen Cordner (5:26)

It's other people who make the conclusion.

Meshel Laurie (5:28)

Yes. But it's fair to say that you identified in at least two of the children issues that were potentially fatal.