This is the story of a man currently serving a 30 year sentence for murder, who was convicted largely on the basis of an inaccurate police transcript of an indistinct covert recording. STOP PRESS: Very sadly, the gentleman in question has recently died in prison, making this case study all the more poignant.
Late one night in 2005, an elderly man was found at his home in Sydney, bleeding from multiple gunshot wounds. He died next day, and a murder investigation was opened.
After some time, suspicion fell on the man’s grandson.
At the trial, the prosecution produced evidence suggesting the father had financial and personal motives to kill the grandfather, as well as opportunity to plan the crime and to give his son assistance in committing it, including supply of a weapon.
When I was made aware of this case in 2011 (after the final appeal was rejected), I undertook a detailed analysis of the audio and of the police transcript.
Before reading my remarks, you might like to listen to the 1-minute excerpt again (remembering it is an excerpt from 38 minutes of similar material).
Unfortunately, while police, lawyers, juries and others are happy to accept scientific opinion that DNA or fingerprint evidence is inconclusive, when it comes to phonetic science, non-specialists feel they can reach a valid conclusion simply by ‘listening with their own ears’.
The defence lawyers explained to me that the only way forward, now that all avenues of appeal had been exhausted, was via an application to reopen the case, and initiate an inquiry into the conviction.
Famous ‘miscarriage of justice’ cases often feature a dramatic discovery of evidence showing that the convicted person couldn’t possibly have committed the crime. Unfortunately, in many cases of miscarriage of justice, actual proof of innocence is not available. This is one of those cases – due to the nature of the charges faced in the trial.
Before an application for an inquiry into a conviction can be lodged, it must be sent to a Crown Prosecutor, to provide a response to the purported fresh evidence.
In this case, the Crown response included the following points.
The full application, including the Crown response, goes to a judge who delivers a ruling as to whether it contains genuine fresh evidence that merits an inquiry into the conviction.
The success rate of such applications is vanishingly low, so it is not very surprising that this one was rejected. What is interesting is the reasons given for the rejection.
No doubt some readers will be expostulating about the apparent triumph of legal precedent over scientific evidence embodied in the rejection of this application for an inquiry into a murder conviction on the grounds that a police transcript used to assist the jury’s perception of an indistinct covert recording used as evidence in the trial had been shown to be inaccurate.
An important aspect of this case is that the detective provided his transcript in the role of so-called ‘ad hoc expert’.
What is an ‘ad hoc expert’?
This is a little complex, but I think you will find it worthwhile
to wade through a bit of explanation to get to a truly bizarre aspect of this case.
A very useful aspect of the rejection of the application is the judge’s statement regarding what, in principle, an expert report would have show for the application to be accepted.
In order to succeed, the judge explains, the application should cause him to entertain a sense of unease or disquiet regarding the applicant’s conviction. Spoiler alert: to hear the audio this page refers to unprimed, it’s best to start at the beginning!
In rejecting the application, the judge comments that the prosecution case was strong and compelling, even without the crucial phrase ‘at the start we made a pact’.
This implies that even if the application had introduced fresh evidence (which he argues it did not), it would not be enough to suggest the jury might have reached a different conclusion if they had been given a more reliable transcript.
In the rejection of the application, a great deal is made of the fact that defence accepted the words ‘at the start we made a pact’ as a valid transcription at the time of the trial, and are only opposing it now.
In case you haven’t seen it yet, this might be a good time to view the 20-minute video that puts this case study in its broader perspective.
The whole idea that this murder, which was clearly carried out by the son, might have involved any kind of cooperation from the father, came from the detective’s ‘hearing’ the words ‘at the start we made a pact’ in a covert recording.
In recent years, there has been considerable criticism of the process for re- opening cases which have been formally completed, but require review for some reason. Based on my experience with this case, I will be joining the call for a better system. I hope you will too.