BOOK REVIEW of The Conviction of the Innocent

From Australia

Imagine the horror of being jailed for a crime you didn't commit. During his 52 years as a barrister, 26 of them as Queen's Counsel, Chester Porter saw it happen too many times.

In our common-law system the accused does not have to prove innocence because it is assumed and it is this "keystone to liberty", Porter says, which is often jeopardised. It happens when a trial becomes "inquisitorial" rather than "adversarial", and especially when a government cannot bring itself to admit a wrongful conviction for fear of losing face. Such was the case in Britain, he says, during IRA trials and it happened spectacularly to Lindy Chamberlain, who was also guilty in the mob's mind because she was a Seventh Day Adventist.

Porter refers to Chamberlain's case often. It was a turning point, he says, because the forensic evidence was handled so badly that it soiled for some time the notion of scientific analysis being called upon in a courtroom. During the subsequent Royal Commission, however, it became evident that experts can be wrong at the tops of their voices and, worse, compound each others' errors during cross-examination.

Porter argues the innocent will only truly be able to hold their own against the prosecution's resources when top-grade forensic labs are equally available to the Crown and defence (this is still not the case in NSW). Porter says it more than once: "Money spent on forensic laboratories will yield far greater dividends than money spent on prisons."

It often appears the odds are stacked against the accused. The practice of verballing, where a targeted suspect is conned into a confession or has one invented for him, has been largely stamped out by video-audio interview records, Porter says, but it flourished in a time when judges trusted the police. Times have changed, however, and the police, in Porter's view, have improved markedly: his book is a warning, not an indictment.

Porter gives us much troubling reading in his accounts of wrongful accusation in cases involving child death and child sexual assault, especially where those accused face evidence from fanatical doctors: it's awful to read how many times erroneous medical evidence has been key in wrongful convictions.

The system's biggest flaw, Porter says, in terms of convicting innocent people is a surprisingly human: can anyone tell the difference between a nervous demeanour and a guilty one? Witnesses are human and imperfect. So is the accused and when that person is shaking with nerves, well, what message is being sent out? In the case of rape, Porter says: "If a verdict is reached by using the inestimable advantage of observation of demeanour, it is 50 per cent likely to be wrong."

Porter's motivation in writing The Conviction of the Innocent is to strengthen the system, not to attack it. He believes Australia probably has the best criminal-justice system in the world. But the object must be to achieve justice, not win a case. His book is a healthy reminder of how difficult the job is, which is illustrated well by his statement that "most people would agree it is better to acquit a guilty man than convict an innocent man." I had to think about that one.

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