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Miscarriages of justice

By Michael Nott - posted Tuesday, 19 July 2005

The case of Schapelle Corby has brought sharply into focus for many Australians, and other people around the world, that there can be many shortcomings in legal proceedings and processes. The majority of Australians feel that a considerable injustice has occurred in her case and they feel powerless to correct, or even influence, the situation.

I have no way of knowing whether Schapelle is guilty or not, but I am concerned that the legal process does not appear to have been fair or just. And I am equally concerned that similar injustices are occurring here in Australia, despite the belief of many Australians that our system is less unfair or unjust. This belief also seems to have permeated our political, governmental systems and our media.

In response to the public outcry in Schapelle’s case, the federal government is offering the legal assistance of two QCs on a pro bono basis to assist Corby’s retrial, although the status of this assistance and the movement of witnesses to Bali remain in doubt. This is in stark comparison to the New South Wales and Victorian legal aid commissions which have refused support for people challenging actions by government departments, on the grounds that the case would not be favourable to the applicant. In other words, Australian citizens are being denied legal aid to challenge the action and activities of government departments, because a government body has decided in advance of any court case, that the applicants are unlikely to succeed.


The office of the NSW Director of Public Prosecutions has taken action against individual Australians when the NSW DPP is apparently aware that there are problems with similar legal arguments used in other western legal jurisdictions, and the British courts in particular. The false premises used overseas have resulted in people being released from jail after a successful appeal against their conviction. There has been extensive criticism of the expert medical witnesses who presented certain theories to the courts and the expert evidence they gave has been since shown to be “manifestly wrong and grossly misleading”. Yet this same evidence has been, and continues to be used, in Australian courts.

Recently Nicholas Cowdery, NSW DPP, has written in the NSW Judicial Commission Bulletin of the issues relating to wrongful convictions. In doing so, he appears to have failed to accurately record problems with NSW prosecution evidence which may also result in wrongful convictions. While he referred to the Canadian Department of Justice’s 2005 Report on the Prevention of Miscarriages of Justice, which mentions difficulties with tunnel vision by police and prosecutors, he failed, in my view, to adequately examine the role of the NSW prosecution in cases similar to those in the UK, which have involved difficulties with inaccurate expert medical testimony.

There are also numerous instances in Australia of government departments taking action against individuals with little or no factual evidence of wrong-doing. The allegations are based merely on the beliefs, suppositions and speculations of individual government officers. Much the same has occurred, it would seem, with the evidence presented by the customs officer at Schapelle’s trial. In other words, individuals are being accused because someone with the authority of a government position has said that this individual committed this offence, so action must be taken against them.

This is much the same as European and American witchcraft finger-pointing of mediaeval times. There is no factual evidence against the accused individual, and on the contrary, once investigated properly, there is reasonable evidence to show that such individuals were not responsible for the events and circumstances that eventuated.

A senior NSW politician has stated that it would a “political risk” for him to raise the matter and other NSW politicians know that problems of injustice are occurring, but they fail to take action. Similarly, government and statutory bodies, and other professionals, know of the injustices, but also fail to do anything.

I am being deliberately somewhat vague about the allegations. My concerns are regarding the manner in which these false allegations and injustices are occurring and in particular, the complicity of politicians, government officers, some professionals and prosecutors in allowing these allegations to proceed. They are fully aware of the injustices that have occurred in overseas jurisdictions, and of the implications for Australian legal systems and just and fair hearing principles, yet they allow the same injustices to occur here.


I am not alone in my concerns regarding these injustices and the feeling that thorough and comprehensive investigations are essential before individual Australians are accused of wrongdoing, otherwise these injustices will continue. I am sure that at some stage the individuals who have been wronged will sue those responsible.

If the rightful anger and concern that has been shown by Australians towards the process and findings in the Schapelle Corby case could be equally shown towards the injustices in Australia across many judicial areas, then reforms and changes could be made to address the relevant issues. I would implore Australians to examine and consider the injustices occurring in our own legal system, else we could rightly be accused of throwing stones from what is very definitely a very fragile glass house.

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About the Author

Michael Nott is an advocate for mothers falsely accused of munchausen syndrome (factitious illness) by proxy and the cot death theory. He has a Bachelor of Laws degree (LLB)(Macquarie University), Graduate Diploma in Legal Practice (Australian National University) and Graduate Diploma of Applied Social Sciences: Adult Education (University of Western Sydney). He can be contacted by email at: michaelnott AT

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