The innocent cop falsely labelled as a serial rapist: Neil Mercer Pt. 2

Veteran journalist and author Neil Mercer returns to I Catch Killers for part two of his confronting examination of wrongful convictions in the Australian justice system. In this episode, Neil and Gary Jubelin revisit one of the most embarrassing periods in NSW Police history: the case of Harry Blackburn, a former police superintendent publicly branded a serial rapist and paraded before the media before he was ever formally charged. They unravel the extraordinary chain of failures that led to his very public downfall, a saga that only ended when a Royal Commission finally exposed the truth. They also unpack DNA evidence, long considered the gold standard in forensic science, and just how far from infallible it can be, and the broader, systemic issues that allow innocent people to be wrongly convicted: unreliable eyewitness identification, the historical use of "police verbals" and false confessions, inadequate legal representation, and the unique challenges faced by First Nations Australians navigating a justice system not built with their language or culture in mind. Neil Mercer is the author of Falsely Convicted: True Stories of Injustice in Australia https://www.allenandunwin.com/browse/book/Neil-Mercer-Falsely-Convicted-9781761472978. Want to hear more from Neil Mercer? Listen to his other interviews with Gary on I Catch Killers here https://pod.fo/e/26c80e and here https://pod.fo/e/26c80d. You can watch I Catch Killers on Youtube here. https://www.youtube.com/@ICatchKillers-Podcast Follow I Catch Killers: Instagram:@icatchkillers https://www.instagram.com/icatchkillers/?hl=enTiktok:@icatchkillerspodcast https://www.tiktok.com/@icatchkillerspodcastFacebook:@icatchkillers https://www.facebook.com/icatchkillers/ Email the show at [email protected] See omnystudio.com/listener https://omnystudio.com/listener for privacy information.

• 0:01Speaker 00

  The public has had a long-held fascination with detectives. Detectives see a side of life the average person is never exposed to. I spent 34 years as a cop. For 25 of those years, I was catching killers. That's what I did for a living. I was a homicide detective. I'm no longer just interviewing bad guys. Instead, I'm taking the public into the world in which I operated. The guests I talk to each week have amazing stories from all sides of the law. The interviews are raw and honest, just like the people I talk to. Some of the content and language might be confronting. That's because no one who comes into contact with crime is left unchanged. Join me now as I take you into this world.

• 0:46Speaker 00

  When I was in the police, former superintendent Harry Blackburn was wrongfully charged with 25 serious offences, including rape and kidnapping. It was a masterclass in how not to run an investigation. And I still shake my head in disbelief that police even considered charging him. It's just one of the many devastating cases veteran journalist Neil Mercer examines in his new book, Falsely Convicted. In part two of our chat, we pull apart exactly how wrongful convictions happen. It includes unreliable memory, false confessions, police and prosecutors' incompetence, and also the incompetence of defence barristers, forensic failures, and how vulnerable people, particularly First Nations Australians, are too often denied the chance to properly

• 1:31Speaker 00

  exercise their right to be presumed innocent. Have a listen, I think you're going to be fascinated by what we talk about.

• 1:38Speaker 00

  Neil Mercer, welcome back to part two of I Catch Killers.

• 1:42Speaker 01

  Thank you.

• 1:42Speaker 00

  For those that listened to part one, Neil and I had lengthy discussion about some of the cases that resulted in people being falsely convicted. It's quite frightening when you think about it because the courts are set up, there's a lot of checks and balances in place.

• 2:00Speaker 01

  There are. And look, I think most of the time, it works. I'm not here to pull down, to argue we need a brand-new legal system or anything like that, particularly, and it's all relative, particularly when you look at what's happening in the United States, say.

• 2:15Speaker 00

  True.

• 2:16Speaker 01

  But there are times when the system gets it wrong. And people say, oh, you know, half the people in prison say they're innocent. And I go, yeah, I know, I know. And that's obviously not true. But occasionally, some people are. They are innocent, and they have been wrongly convicted. And the nine cases go through, as we discussed, a range of reasons why, where the system fell down, was it corruption, was it misconduct, or was it just incompetence?

• 2:45Speaker 00

  Quite often, it looks like it's a combination of all those things. I, as a police officer, I was frustrated sometimes at the protections that were put in place to protect the accused person. But having said that, I fully understood the need for it. So it was just, okay, there's a lot of protections there. With homicide investigations, it's very rare that you'd have someone plead guilty to murder, so they were quite often contested in the courts. And very rarely, when I convicted someone of murder, or someone was convicted of murder, did they not lodge an appeal at some stage. So that became the norm. My frustration was that if the courts get it wrong in convicting someone, they may,

• 3:29Speaker 00

  and this is a flip side, they may also get it wrong in acquitting people. I put that to the test on the back of the bearable case, we've campaigned very publicly for the double jeopardy legislation that came in, where if someone had been acquitted for a crime, there was now provision to have that person recharged if it was fresh and compelling evidence and in the interests of justice, which was a high, high level to obtain. And even with the bearable matter, and it was brought in specifically for the bearable case, we got it to the high courts, but decisions were made that we couldn't prosecute it. So to me, that was a way of acknowledging that there are failings in the courts, not

• 4:14Speaker 00

  just from the prosecution side of things, when someone's wrongly convicted, but when someone might be acquitted, where the evidence should have been, to the contrary. So we've got all those protections in place, but we still stuff it up.

• 4:30Speaker 01

  On occasions. On occasions. I can understand the frustrations of police officers, not as well as you, or the detectives I've met over many years. I can understand that, that you can feel constrained by the law. But as you say, there is that protection there that I don't have to say anything to you if I don't want to. I have the right to silence. And I think, and the presumption of innocence, all those things. The cases I've looked at, I've sort of tried to do cases that are different and that might inform people as to how things go wrong, where they go wrong, whether it's tunnel

• 5:11Speaker 01

  vision, or the use of prison informants, say, which was very popular at one stage, particularly by the then National Crime Authority.

• 5:20Speaker 00

  Wasn't that fraught with danger?

• 5:22Speaker 01

  That was, well, that all fell in a heap. And embarrassing, to say the least, heap. You know, there's misidentification evidence. Identification evidence, as you know, as all detectives and lawyers know, is notoriously unreliable.

• 5:39Speaker 00

  Or the memory.

• 5:40Speaker 01

  I can see, I can see something that happened across the street, and the person next to me might see something almost completely different. And we're not lying.

• 5:49Speaker 00

  No, that's your recollection of it.

• 5:52Speaker 01

  That's my recollection. So there's cases in there where somebody's been convicted on identification evidence. And again, the identification evidence has got a bit better with time. As the months went on, and when they finally appear in court, rather than sort of perhaps saying, as they did originally, oh, I'm not sure, or yeah, I think that's him, they go, yeah, that's him. Which, from a prosecution point of view, is great, but it's not what they said at the beginning.

• 6:22Speaker 00

  Again, it's because people that don't understand the system and they put trust in police, they put trust in the media, what the media's reporting, well, it's reported in the media, so therefore it must be, must be true. And then the legal system, well, these people are a lot smarter than I am, so you can see why it goes wrong. Speaking of going wrong, and I think this one's an indefensible one, but the Harry Blackburn case. I'm an ex-New South Wales police officer, it's not our proudest moment, it's balanced out by we had someone as competent as Clive Small reviewing the case. Do you want to tell us about that case? Because I knew about it, it's folklore in New South Wales police, but I got a little

• 7:04Speaker 00

  bit more understanding of it from what you covered in the book.

• 7:08Speaker 01

  Well, you talk about the role of the media in some cases, and this is a classic case, Harry Blackburn, this is 1989 in Sydney. Harry Blackburn is an ex-New South Wales police officer. He was, he rose to the rank of superintendent, he was in charge of scientific. He's left the police force on good terms and gone to work for the Commonwealth Attorney General's Department in a particular role. In 1989, one day, the media's called up to police headquarters, you've got to leave all your recording devices behind, this is not the record briefing, this is a big deal, a big story is brewing.

• 7:48Speaker 01

  And they're then briefed in great detail about how the New South Wales police have been re-investigating a series of historical rapes. Some occurred in the late 70s, some around 1985, 88. So there's two sets of sexual assaults. The reporters are told they've been done by the same man. And they all occurred south, in the southern suburbs of Sydney. The media is stunned to hear that the person who's alleged to have done this is Harry Blackburn, the former superintendent who was in charge of scientific. It's even more stunning because at this stage, Harry's not been arrested.

• 8:32Speaker 01

  He's actually at work, oblivious to the fact. As to what's about to happen. The media's given all the details, so the radio, TV, newspapers are all set to go when Harry gets arrested about an hour or so later. He comes down in the lift, makes a joke to his mate because he sees all these blokes in suits standing around, and goes, it looks like there's a raid on. And they come up to him and say, Mr Blackburn, you're under arrest. There's no big deal, you're under arrest. It was rather a big deal. He's taken to a particular place, the media's been told where he's going to be taken to.

• 9:17Speaker 01

  Long and short of it is, he's charged with being a serial rapist. And he is then, and this is probably one of the most shameful moments for the New South Wales police, he's walked from where he's been interviewed, where he's sort of denied anything or not said anything, he's walked in front of multiple TV cameras, newspapers, media, radio, everybody, for a considerable length of time. So we, the media.

• 9:47Speaker 00

  All of which would have been given the heads up.

• 9:48Speaker 01

  Oh, yeah. It was approved, it was actually approved by the most senior police in the New South Wales police force. In fact, at the earlier media briefing, the reporters were told that this whole operation, Operation Photo, had been, you know, under the close supervision of the commissioner, but in particular Assistant Commissioner Tony Lau, he had something called executive oversight.

• 10:16Speaker 00

  I don't know what that means.

• 10:17Speaker 01

  Well, that's, join the club. In the end, nobody knew what that meant, and therein lies part of the problem. Harry's walked in front of the media, his vision of him walking out of the police station after he's been interviewed is all over the media. The story goes around the world. It was in, I think it was even appeared in a paper in Istanbul, that he is senior cop, former senior cop, charged with being a serial rapist. You know, it's even more crazy when you realise that identification evidence in that case was crucial.

• 10:59Speaker 01

  On the night of Harry's arrest, two of the police involved are driving home in the early hours of the morning and they have a terrible accident.

• 11:07Speaker 00

  Yep.

• 11:08Speaker 01

  The officer who was apparently in charge suffers brain damage. The investigation or the preparation of the brief of evidence to put Harry Blackburn before the court is in disarray. They call in a detective by the name of Clive Small, who at that stage was a detective inspector.

• 11:26Speaker 00

  Yep.

• 11:28Speaker 01

  And what he finds is an investigation in disarray because statements have not been properly taken, you know, things haven't been written down.

• 11:40Speaker 01

  He's got to re-investigate the whole thing because on the face of it, it looks like Harry might be the wrong bloke. At that stage in 1989, I was working as a reporter for ABC TV, Four Corners, and I remember getting a phone call from somebody who said, oh, I want to talk to you about the Harry Blackburn case. And I said, oh, yeah, yeah, I've seen him, he's obviously, I thought he was guilty as hell.

• 12:08Speaker 00

  Yeah, by the way, the confidence in which it was played out.

• 12:11Speaker 01

  Exactly, the confidence, I mean, the confidence of the police, they had a press conference on the night of his arrest. He's walked in front of the cameras, we've got him. And I thought, you know, good work, good work. The bloke on the other end says he's the wrong man. I said, well, what do you mean, there's not enough evidence, you know, it's just the brief's a bit shy of a gallop. And he said, no, he's the wrong blood group. And I went, I remember going, that can't be right. Anyway, we, I start making some investigations and I meet with Harry Blackburn's lawyers and I meet with Harry Blackburn.

• 12:53Speaker 01

  And he says, I'm innocent, this is a shocking mistake, I'm prepared to do an interview, you know, if you're prepared to look at some of the facts in this matter. So I then went off on an investigation and I'd been given the statement of facts in which a lot of the details of the case had been laid out, it had been handed up in court. And I found a number of the witnesses who, and this includes women who were sexually assaulted, the MO of this offender from the late seventies and eighty five to eighty eight was he was a sort of a lover's lane person.

• 13:35Speaker 01

  He would sneak up on young couples in cars, in isolated areas, grab the bloke, lock the bloke in the boot and rape the women.

• 13:48Speaker 01

  I had these names of men and women and I tracked down, and this is when I knew that something was seriously wrong, not just what I'd been told in that phone call. I tracked down one of the women who had been sexually assaulted and she agreed to speak but not on camera. So I went to her home and I remember chatting to her and it's, you know, it's a very difficult conversation, it's naturally. Towards the end of it, I said something like, so you think Harry Blackburn's guilty? He's the man? And she said, oh, no, oh, no, he's far too old. The person who assaulted me was much, much younger. I said, did you tell the police that? She said, oh, yeah.

• 14:32Speaker 01

  And I said, did they put that in your statement? And she said, no, no, they left that bit out.

• 14:38Speaker 01

  And I remember, I can still remember that moment really clearly. I just thought, holy shit, you know, they've left, how are they going to jump over that hurdle in court?

• 14:48Speaker 00

  Yeah.

• 14:49Speaker 01

  I think in the end, they were not going to call her. I found another witness who was an eyewitness, it was a bloke who'd been in the car with his girlfriend, who'd been given a positive, quote unquote, identification to police. He was, interviewed him, this is all, this one was on camera.

• 15:10Speaker 00

  Yeah.

• 15:12Speaker 01

  And I said, well, what did you see? And he said, oh, the bloke came to the side of the car, he had a balaclava on, said, don't, you know, don't do anything stupid and it'll all be okay, drags him out, puts him in the boot. So he's seen a figure in a balaclava at one o'clock in the morning for about three seconds. And I said to him, the police say you've made a positive identification. He goes, yeah, that's right. And I'm, this is the gist of the conversation, Gary, I can't remember the exact words. But I said, you know, hypothetically, if you're in court now, could you identify Harry Blackburn as the man? He said, oh, no.

• 15:56Speaker 01

  I said, well, so how positive were you? And he said, I was about seventy five percent and the investigator said, oh, that's good enough for us. And I just went, wow. And there were a couple more interviews like that.

• 16:11Speaker 01

  It was one of the more extraordinary cases and things got even, things then got really complicated.

• 16:19Speaker 00

  Yeah.

• 16:19Speaker 01

  Because Detective Inspector Clive Small has taken over the brief after the investigators had the car accident. Rumours start to circulate that, and the rumours start to circulate at the same time I'm preparing a story for Four Corners, that Clive Small is corrupt, that he's gutted the brief, that, you know, in the beginning, there was a really good brief and he's now deliberately.

• 16:42Speaker 00

  Making it poor.

• 16:43Speaker 01

  Making it poor so that, you know, Harry Blackburn won't be prosecuted.

• 16:48Speaker 00

  Is that when the dark?

• 16:49Speaker 01

  Well, this is the, that's right, absolutely, this is white nights and black nights.

• 16:54Speaker 00

  Yeah, yeah.

• 16:57Speaker 00

  You can't make, you can't make this stuff up.

• 16:59Speaker 01

  No, you can't. And, you know, as, I had to go and see Clive because I've heard the rumours and I'm saying, at his home. And I said, Clive, these are the rumours, he was really, really upset, as you would be. And he said, look, the brief, I'm preparing this brief, the brief will stand the test of time.

• 17:19Speaker 00

  Yeah.

• 17:20Speaker 01

  Anyway, I'm very nervous and Four Corners is very nervous because these rumours are going around Parliament.

• 17:28Speaker 00

  Yeah.

• 17:28Speaker 01

  They're coming, the ministers are talking about them, reporters are going, oh, Small's corrupt, Clive Small's corrupt.

• 17:37Speaker 01

  But Small presses on with his investigation and finds that a number of the witnesses, in fact, three of the women have told police Harry Blackburn was not the man.

• 17:49Speaker 00

  Yeah.

• 17:50Speaker 01

  And that he's got alibis. On one of them, he's had a police conference in Darwin.

• 17:56Speaker 00

  It's a hard one to get over.

• 17:57Speaker 01

  It's a hard one to get over. On another, he's got a friend who remembers them being in Newcastle on a particular race day for particular reasons. And there's another one where other police officers remember being with him on that weekend at another police conference. The case was that one man's done all of these. He's the wrong blood group, he's.

• 18:19Speaker 00

  Alibis.

• 18:20Speaker 01

  Got alibis which are rock solid, he's with other police officers.

• 18:25Speaker 01

  Clive Small, in his report to the hierarchy, they're not very happy to hear from Clive.

• 18:31Speaker 00

  No, they, I'm sure they wouldn't be because it was a hierarchy that were blowing the trumpet about.

• 18:36Speaker 01

  It was a hierarchy going, we're capable of catching our own.

• 18:40Speaker 00

  Yeah.

• 18:41Speaker 01

  You know, we've done a brilliant job, we've used the latest DNA, we've done this, we've been to London. And Tony Lau, the assistant commissioner, who was in prime pole position to be the next

• 18:54Speaker 00

  Oh, Neil, I'm going to have to stop you here. Are you alleging that police would be making operational decisions based on promotional opportunities? Outrageous.

• 19:02Speaker 01

  Outrageous, shocking, shocking.

• 19:05Speaker 01

  They've allied themselves very closely, really closely. Tony Lau's done a press conference before he heads off to the opera, the Sydney Opera House. So they have said, this is a brilliant operation. Weeks later, Clive Small, who's re-investigated, gone back to the witnesses and found all these alibis, all this evidence that says Harry Blackburn did not do it. Clive goes to the hierarchy, as I say, they're not very pleased to see him. Anyway, he prevails. The brief goes to the D P P Reg Blanch, it was back then, um, who later says of the brief of evidence prepared by Inspector Small, it was one of the best briefs I've ever seen.

• 19:48Speaker 00

  Well, that's a.

• 19:49Speaker 01

  The, the charges are, are dropped and the government of the day announces an inquiry to be done behind closed doors. Um, can't have a royal commission. As part of the Four Corners story, I go to see John Dowd, the Attorney General, do an interview with him on camera. Ted Pickering, I think, was the Police Minister. The interview with Pickering is done on a Friday.

• 20:13Speaker 00

  Hmm.

• 20:13Speaker 01

  We're going to air on Monday. And I'm still pretty nervous about this whole thing because other, other journo's are going, mate, you, you're cruising for a bruising here. This is.

• 20:22Speaker 00

  You've got it wrong.

• 20:23Speaker 01

  I've got it completely wrong. I'm, I'm really nervous. And I do the interview with Ted Pickering on the Friday. And Pickering, like Dowd before him, says there's absolutely no need for a royal commission. Next day, the Saturday, they announce a royal commission, which was something of a relief, I guess. And we go to air on the Monday, in which we recount all this evidence that Harry Blackburn is in fact not, not just innocent. We've sort of touched on this earlier, that some people get off charges and you, and you still think, look, he's, he's got off, but I still reckon he did it.

• 21:03Speaker 00

  Yeah.

• 21:04Speaker 01

  This is not one of those cases, all the evidence was, that the New South Wales Police had got the wrong man.

• 21:09Speaker 00

  Hmm.

• 21:10Speaker 01

  Uh, and the Royal Commissioner, Justice Jack Lee, does an inquiry and very quickly dismisses the Black Knights versus White Knights stuff as absolute rubbish. There's no evidence for it. And it appears that the case against Blackburn, um, had its, had its beginning 20 years before, with one police officer having, quote, "a gut feeling" that Harry, back then.

• 21:38Speaker 00

  Hmm.

• 21:39Speaker 01

  Looked like one of the identikit photos. And Harry said to him, "Well, if you think that's right, stick it in the running sheets," you know, the day to day account. Nothing's in the running sheets. But the, they've got it completely and utterly wrong on so many levels that, you know, it, it was just extraordinary. And, um, I was very thankful for the Royal Commission because the, the report that I did was right.

• 22:07Speaker 00

  Yep.

• 22:07Speaker 01

  Um, he, he was wrongly accused. He, he didn't go to jail, so he, he wasn't ever convicted, but he was certainly convicted in the court of public opinion on the night and, and in the days after that walk in front of the cameras. I mean.

• 22:22Speaker 00

  Well, the horrible situation.

• 22:23Speaker 01

  I thought he was guilty.

• 22:24Speaker 00

  Yeah, I, I, well, I was in the police then. I, I remember looking at it going, oh.

• 22:29Speaker 01

  Got him.

• 22:29Speaker 00

  Yeah. And looking at it. So the, the identification evidence not right, the blood group's not, not right. Um, the alibi.

• 22:38Speaker 01

  How do you jump over that? And the detectives doing it, I think, were from something called the Tactical Intelligence Group, which, as its name suggests, were not meant to be investigating. They were supposed to be gathering intelligence.

• 22:51Speaker 00

  Hmm.

• 22:51Speaker 01

  Um, and there were other detectives involved. And in the end, as it turns out, nobody knew who was in charge, despite Assistant Commissioner Lau having executive oversight. And, uh, even the Royal Commissioner, uh, Jack Lee, made a comment about that. He said, well, whatever that means. Nobody knew what that meant. Nobody knew who was running the show. It was, it was, um, a shambles. Um, and it, one interesting thing here is that if, if the two or three police officers who were leading it, um, if one in particular had not been involved in that accident on the night, and the brief had been let run,

• 23:35Speaker 01

  the Royal Commissioner said there was every chance Harry Blackburn might have been found guilty, because the women who said, "No, it's not him."

• 23:43Speaker 00

  Yeah.

• 23:43Speaker 01

  Would not have been witnesses.

• 23:45Speaker 00

  Yeah.

• 23:45Speaker 01

  And the defence would not have known that they'd said that.

• 23:49Speaker 00

  That's frightening, isn't it?

• 23:50Speaker 01

  Weren't called. Um, yeah, it is, it is frightening. It was one of the, it was not one of the highlights of the New South Wales Police, I've got to say.

• 23:59Speaker 00

  No.

• 24:00Speaker 01

  Uh, and, and Tony Lau, who had stood up and used this as an example, I think of, you know, how we can investigate our own and we can do these things brilliantly. Um, he gets promoted to Commissioner.

• 24:13Speaker 00

  But on the basis of that, and I think it, it was, uh, the, the, something that shaped Clive Small's career, because he had to stand up to not being the popular person. And I know when he took over, uh, crime agencies, which was when they bought all the regional crime squads together and were based in, uh, Surrey Hills, Clive headed up that. And the reporting conditions and the way we had to document the investigations, progress reports and all that, a lot of it was set up on the basis of Clive seeing how bad an investigation could go. And I, I think it's, I'd like to think it's carried us in a, a good, uh, a good direction.

• 24:47Speaker 01

  In this case, and I mean, the fact that nobody knew who was in charge, the fact you had detectives investigating who should not have been investigating.

• 24:55Speaker 00

  Hmm.

• 24:56Speaker 01

  Um, and the fact you had the hierarchy so heavily invested in proving that this guy was guilty, because they've all stood up in front of the world on camera and said, basically said that. I, i- i- it's still a perplexing case. And I, I, I'm not sure if, I just think it was incompetence, um, that there was no chain of command.

• 25:18Speaker 00

  Yeah.

• 25:18Speaker 01

  Nobody knew who was doing what.

• 25:20Speaker 00

  Hmm.

• 25:20Speaker 01

  Things weren't being written down. And they were jumping over hurdles, like being the wrong blood group in one.

• 25:28Speaker 00

  Hmm.

• 25:29Speaker 01

  In some of the attacks, when you're alleging that one man's done all.

• 25:33Speaker 00

  Yeah.

• 25:33Speaker 01

  If you're the wrong blood group on their case, if you're the wrong blood group in one group of attacks, you can't have done the others. And I, I don't know how they, they, I think they sort of said they didn't know he was the wrong blood group. But, um, how they would not know that, I, I can't now recall. I'm sorry.

• 25:51Speaker 00

  But the, these are the things that need, need to be addressed. And there, there needs to be, um, operating procedures set in place. And I, I think, yeah, with Clive on the, on the back of that, the, the progress report, so running the major crime investigation.

• 26:05Speaker 01

  Hmm.

• 26:06Speaker 00

  Currently, you're reporting on, on a monthly basis on, uh, all the inquiries you've done.

• 26:12Speaker 01

  Hmm.

• 26:12Speaker 00

  Reviewing, critiquing, that goes up a chain of command and it keeps, it keeps a, a documented.

• 26:18Speaker 01

  Yes.

• 26:18Speaker 00

  So people, you know who's responsible for it.

• 26:21Speaker 01

  Yeah.

• 26:21Speaker 00

  So the chain of command is clearly, uh, clearly stated.

• 26:24Speaker 01

  You, you just think, how could it happen? And again, you go back to that lack of experience, um, the fact they're invested in it, and the supervision was clearly not there.

• 26:35Speaker 00

  Yeah.

• 26:35Speaker 01

  Yeah, it was, uh, it was a shambles. But I think you're right. I mean, Clive Small standing up to the hierarchy.

• 26:42Speaker 00

  Yeah.

• 26:43Speaker 01

  I, I think, you know, was a, a very courageous thing to do, because it's been very tough for a police officer to stand up to the hierarchy and go, "No, I'm right. All you blacks that went on TV."

• 26:55Speaker 00

  Yeah.

• 26:55Speaker 01

  "You're all now looking like fools."

• 26:57Speaker 00

  I, I could say, I've probably done it a few times and it hasn't helped. It's, uh, comes at a cost.

• 27:04Speaker 01

  Yeah, it does.

• 27:04Speaker 00

  If you step out of the line.

• 27:06Speaker 01

  Um, fortunately for Clive, it was such a high profile case. And there was a Royal Commissioner. And the Royal Commissioner found very heavily in Clive Small's favour and said, I think explicitly, the public or the media should watch Clive Small's career with interest, i.e. whether he gets promoted. So I think, in that sense.

• 27:26Speaker 00

  That was a change in the.

• 27:28Speaker 01

  That was the, you know, uh, the good, the, the good thing was the government did call a royal commission.

• 27:34Speaker 00

  Yeah.

• 27:35Speaker 01

  Uh, quickly.

• 27:36Speaker 00

  Yeah.

• 27:36Speaker 01

  This did not linger on for years in, you know, in some sort of secret inquiry.

• 27:41Speaker 00

  Yeah.

• 27:42Speaker 01

  Um, in, say, the, the Crime Commission or whatever it is. That, that's where they were going to have the original inquiry in the.

• 27:48Speaker 00

  Yeah.

• 27:48Speaker 01

  What was then called the State Drug Crime Commission, which is now the New South Wales Crime Commission. So it all would have been behind closed doors. Fortunately, that was scrapped at the last minute. And I'd like to think, uh, myself and Four Corners played a little role.

• 28:03Speaker 00

  Yeah.

• 28:03Speaker 01

  In, in forcing that royal commission.

• 28:06Speaker 00

  Well, sadly, with, with policing, that, uh, yeah, incompetence can, internally can be very easily swept under the carpet. Like, if no one's complaining about the incompetence, um, it just, it goes by the wayside. With homicide investigation, little bit different in that you're going to get scrutinised one way or the other, because there's, there's going to be a, an inquest. If you, if you don't charge someone, it's going to be contested at the Supreme Court. Uh, if you charge someone, I should say, it's going to be contested at the Supreme Court. If no one is charged, it's going to be, um, you know, scrutinised at the inquest. So there's a bit more accountability. But, yeah, that wasn't a proud, uh, proud time in New South Wales history and the policing history. And, and reading it, and it's just

• 28:48Speaker 00

  sort of come back to me, how these things happen. But, yeah, it's, it's, well, I won't say it's a mystery, but it's confusing how it can all happen. All these people, uh, come together, the stuff up, something that big.

• 29:00Speaker 01

  Yeah. And it was big. Um, he did receive some compensation.

• 29:05Speaker 00

  Hmm.

• 29:06Speaker 01

  Uh, Harry, uh, that was on a, a non-disclosed basis of not to be disclosed. It was said to be well over a million dollars. But you talk about the, the price of some of these things. At the time of his arrest, his wife was pregnant.

• 29:21Speaker 00

  Yeah.

• 29:21Speaker 01

  And, uh, a month or so later, she miscarried. And, and the hospital said they had little doubt that stress.

• 29:28Speaker 00

  Yeah.

• 29:28Speaker 01

  Played a part in that. So you talk about the price on people's lives. That's.

• 29:33Speaker 00

  Yeah.

• 29:33Speaker 01

  Pretty bad.

• 29:34Speaker 00

  Okay. Well, we'll move, uh, move on from, uh, that one. As I said at the end of part one, I just want to go through a, a, a couple of things, or just, you know, where failings of, uh, uh, situations happen. We talked about eyewitness misidentification. We're just talking about that in the Harry Blackburn, uh, one. Um, I, I highlighted here, false, false confessions. Now, you would have been around in the days of, um, yeah, the, uh, well, what was referred to as a police verbal.

• 30:04Speaker 01

  Yes, yes.

• 30:05Speaker 00

  That's, yeah, what, what it was said, where someone goes to court. And I'm sure you sat in courts where, uh, "Yes, I interviewed the suspect. He declined to, uh, make a statement, but he told me, Detective Inspector Jubelin, you're too good for me. You've caught me." Um, I won't sign the, uh, the entry.

• 30:24Speaker 01

  You blokes are too good for me.

• 30:25Speaker 00

  Oh, that's a one.

• 30:26Speaker 01

  I done it. Um, but I'm not going to sign the statement. Um, and, uh, yeah, there's, there's the, the seventies and the eighties. And look, I mean, this was mostly not, not done with, you know, straights one eighties or clean skins. It was done to serious criminals or mostly.

• 30:45Speaker 00

  Yes.

• 30:45Speaker 01

  Uh, and it was seen, it was a cultural thing and it was, it had grown up over many, many years.

• 30:51Speaker 00

  Yeah.

• 30:52Speaker 01

  And it was seen as a way of keeping. Career criminals in particular in line. I'm not saying it was, I'm not saying this is a good thing.

• 31:00Speaker 00

  No, I, I understand where you're saying, what you're saying, Neil, and I, I think we need to, yeah, just focus not just on the police because the courts were accepting that.

• 31:09Speaker 01

  Oh, yes.

• 31:10Speaker 00

  The courts are sitting there going, really? But okay.

• 31:12Speaker 01

  Here's a bloke that's been through institutions since the age of eleven. He's been in jail multiple times. Um, he's as hard as nails. And he's making all these confessions, quote unquote, you know, not long confessions, but just enough.

• 31:30Speaker 00

  Yeah.

• 31:30Speaker 01

  And you're dead right. I mean, magistrates and judges.

• 31:33Speaker 00

  Were accepting.

• 31:34Speaker 01

  Were accepting it. So, yeah.

• 31:36Speaker 00

  And I, I, I wonder about that. And society was different in, back in the days. But also, what did you have for investigations? We, we've got a lot of forensic evidence that can support an investigation now. It basically came down to eyewitnesses, you know, going back, and that's probably a little bit extreme. But it was basically briefs were based on eyewitness identification and confessions.

• 32:00Speaker 01

  Yeah.

• 32:00Speaker 00

  And that's all the police had, had to play with. Forensic evidence was rapidly, um, coming in, but there wasn't a great deal of it. You had fingerprints.

• 32:08Speaker 01

  Yeah.

• 32:08Speaker 00

  So the crooks got away with that by wearing gloves. That's all they had to do.

• 32:12Speaker 01

  Yeah.

• 32:12Speaker 00

  And put a balaclava on. So that, that was the environment. But I, uh, cause a lot of people, and it said half jokingly, uh, but, uh, the police verbal and that. But I always say, yeah, they, they went on, uh, they went through the courts. But the magistrates and the judges and possibly even the jury members were understanding what was going on that was accepted. So it wasn't just police to blame. And that's not condoning what, what was done, but that was, that was the, uh, that was the world.

• 32:42Speaker 01

  I think it was an accepted part of the culture. Um, at that time, I mean, it started to change during the early, late seventies, early eighties. I think when the media and the judges and magistrates started to say, look, you know, hang on.

• 33:00Speaker 00

  Yeah.

• 33:00Speaker 01

  Things have got to change. Um, this is clearly unacceptable. And then sort of electronic recording of interviews came in, which, you know, the, the, the old just writing stuff down in shorthand or just making it up went out the window because you had an, an electronic recording.

• 33:18Speaker 00

  Yeah.

• 33:18Speaker 01

  Of somebody, you know, saying or not saying anything.

• 33:23Speaker 00

  Yeah.

• 33:23Speaker 01

  You know?

• 33:23Speaker 00

  And look, from, from a policing point of view, when, uh, the E R S interview, so electronically recorded interview of a suspected person, uh, we refer to as E R S, when that came in, I was a detective and we were all mortified. What, we've got to put the camera in. I, I remember I, I put my hand up and went down to the academy to be trained, to train people about the interview, uh, because I thought, well, this is going to change, change the landscape. It's not sitting in an interview room and doing a type record of interview and, and that type of thing. And it was confronting for police first up when it came in, but I think we've all seen the benefits of it.

• 34:00Speaker 01

  Yep.

• 34:00Speaker 00

  And now that unless the admission is caught, uh, recorded, it's inadmissible.

• 34:06Speaker 01

  Yeah.

• 34:07Speaker 00

  I think it's a better system. And I think ironically, it's led to more people pleading guilty too.

• 34:12Speaker 01

  Yeah.

• 34:13Speaker 00

  When it's, it's put to them. The only changes I, I'd like is this right to silence. And before everyone jumps on, you go, you can't take away the right to silence. Over in England, there's the, the system that got in place is more, okay, everyone has the right to silence, but inference can be drawn from your right, from you're not giving your alibi evidence straight up. So if I, if I arrest you and you can prove straight away that, hold it, I was, uh, at home with my wife at the time, blah, blah, blah. If you don't declare that, but you declare it after we've sent the brief of evidence to you and you realise a crucial time that you had to be away. And then you come back and go, oh, this is my alibi witness, because you've, you've created your alibi witness.

• 34:58Speaker 00

  More weight would be placed on it if you spoke up front. So.

• 35:01Speaker 01

  Yeah.

• 35:02Speaker 00

  You still have the right to silence, but there's a, a, a varying degree of weight that's placed on it. If you don't, uh, defend yourself straight away.

• 35:11Speaker 01

  Yeah, I, I can see where, I, I understand exactly where you're coming from. I'm, I'm not in favour of that mainly because I think there are some, or many people, particularly First Nations people.

• 35:23Speaker 00

  Yes.

• 35:23Speaker 01

  Who do not, um, maybe they come from remote communities. And there's an example in the book, um, a young, uh, indigenous bloke from an extremely remote community.

• 35:34Speaker 00

  Yeah.

• 35:34Speaker 01

  Does a long interview with the police. Uh, his, English is his third language. His first two are Western desert dialects. He doesn't understand what's going on. Um, and, you know, the, the, the cops, uh, I think tried to do the right thing, but they just had no experience dealing with people from remote communities. But people who also had cognitive impairments due to alcohol.

• 36:05Speaker 00

  Yeah.

• 36:05Speaker 01

  Petrol sniffing, marijuana use, that sort of thing. So in those cases, I, I see, I think there should be a right to silence. And I don't think that should be used against you.

• 36:15Speaker 00

  Okay, well, you, you, I've got no argument with you on, on that one. And.

• 36:19Speaker 01

  But it's an interesting point.

• 36:20Speaker 00

  Yeah.

• 36:21Speaker 01

  And, and, um, I wasn't fully aware that that was the case in the UK. Yeah.

• 36:26Speaker 00

  Um, with the, the, um, indigenous matters and, uh, Dr Diana Eads was mentioned in, in your book. She's a linguistics expert and I used her in the, uh, in the Baraval matter.

• 36:37Speaker 01

  Right.

• 36:37Speaker 00

  And she, she taught me a lot about, uh, yeah, investigating matters in, involving indigenous witnesses and the, the English, the, the way that we misinterpret it and gratuitous concurrence. Like, did you do that? And you say yes. And, and there was little scientific pieces of information that she gave me so I could properly understand what was going on.

• 37:00Speaker 01

  Yeah.

• 37:01Speaker 00

  I tried to have her give evidence at the, uh, trial, um, for one of the, uh, Baraval murders, for the murder of Evelyn, Evelyn Greenup.

• 37:09Speaker 01

  Hmm.

• 37:10Speaker 00

  Because I think it's in Northern Territory and maybe Queensland, there might be other states now. There was a pre-trial warning where a trial had a heavy amount of indigenous witnesses to explain to the jury what these, these misinterpretations might, might be.

• 37:25Speaker 01

  Yes.

• 37:26Speaker 00

  And I bought Diana Eads, I met her after an inquest and, uh, uh, she went to Baraval and, uh, and prepared a report, but we couldn't get it, get it in there. And the D P P said if, if the miscommunication becomes an issue in the trial, we can then call her. She sat of her, you know, she wasn't getting paid for it. She didn't because she was interested in it. Traveled to where the, uh, the court was, sat there and gave me a whole range of examples where miscommunication was that, uh, that the prosecutor and the defence missed because of the way that the indigenous witness was, uh, answering, uh, questions.

• 38:02Speaker 01

  And, and there's a whole, in, in the case I talk about in the book, there's, there was no interpreter present.

• 38:09Speaker 00

  Hmm.

• 38:09Speaker 01

  Um, the, the suspect, as he was then, clearly didn't understand a complex legal language. And I think.

• 38:19Speaker 00

  Yeah.

• 38:20Speaker 01

  The doctor, the expert you're just talking about, uh, did give evidence in that case and spoke about, is it gratuitous concurrence?

• 38:28Speaker 00

  Yeah, yeah.

• 38:29Speaker 01

  Yeah. And, and that was more or less, um, in some cases, people will agree, particularly if they're over pressed over time.

• 38:37Speaker 00

  They'll give it, given it, yeah.

• 38:38Speaker 01

  They'll just say yes, because they, that they feel as though they should, in, in this case, the, the young, the young bloke. Um, the miscommunication was everywhere in the case of Gene Gibson, who was arrested for the murder of a young white bloke. Even with his own, uh, legal aid lawyers, on a number of occasions, they didn't have an interpreter. And the legal aid lawyer is trying to give him instructions.

• 39:05Speaker 00

  Hmm.

• 39:05Speaker 01

  Um, the legal aid lawyer doesn't speak Pintupi and Gene Gibson doesn't speak English very well. Um, and, and it was said later that they'd, you know, one of them, one of the barristers said, you know, what came out of the mouth of the legal aid lawyer and what went into Gene Gibson's brain is where it all went wrong.

• 39:28Speaker 00

  Yeah.

• 39:28Speaker 01

  Cause it was completely, he didn't understand. Look, it's, it's, and, and the police, it's difficult.

• 39:35Speaker 00

  I, I felt sorry for the police in that. And, and you raised it. You said that the police, we tried to do our best. And, and that's the sense I got, the way the story was told in, in your book.

• 39:44Speaker 01

  Yes.

• 39:44Speaker 00

  Police were trying to do the right thing, but they did not have the, uh, have the expertise.

• 39:49Speaker 01

  They didn't have the expertise. They didn't have the training.

• 39:52Speaker 00

  Yeah.

• 39:52Speaker 01

  There was a complete, I think, absence of training. Um, and again, I think the, the, the expert said this, that, um, you know, that there was a complete misunderstanding, um, on all sides. She, part of the interview with Gene Gibson, the guy accused of murdering, uh, in far north of W A, was recorded and as she said in her evidence, on the face of it, it appeared the police were trying to do the right thing.

• 40:20Speaker 00

  Yes.

• 40:21Speaker 01

  They were respectful, they were, um, patient, but it was clear that Gene Gibson did not understand it. They did bring in, uh, a, a, an interview friend.

• 40:34Speaker 00

  Yeah.

• 40:35Speaker 01

  As it turned out, the interview friend had the best of intentions.

• 40:38Speaker 00

  But that worked against.

• 40:39Speaker 01

  But it worked against Gene Gibson because the interview friend who sat with Gene Gibson while he was being interrogated was in a kinship sense in the indigenous community, was like a grandfather to him.

• 40:51Speaker 00

  Yeah.

• 40:51Speaker 01

  So an authority figure. The police are asking questions in English, obviously. The interpreter friend is then translating into Pintupi to Gene Gibson. But the police obviously have no idea.

• 41:06Speaker 00

  Hmm.

• 41:07Speaker 01

  What's being said. So when they were saying, you, do you understand that you don't have to speak to us? Uh, you have the right to silence or words to that effect. The interview friend was saying to Gene Gibson, son, son, you, you've got to, you've got to tell them the truth. You've got to talk to them.

• 41:24Speaker 00

  There goes his right to silence.

• 41:26Speaker 01

  There goes his right to silence. And as it turns out, Gene Gibson didn't even want this person there.

• 41:32Speaker 00

  Yeah.

• 41:32Speaker 01

  There was a total misunderstanding about that, a complete breakdown in communication in language. And, um, yeah, I think it's, uh, uh, an example where incredibly it's difficult for the police.

• 41:46Speaker 00

  Yeah.

• 41:46Speaker 01

  But it was, it was a very, it was a very sad case all round because he was charged with murder.

• 41:54Speaker 00

  Hmm.

• 41:55Speaker 01

  But a judge, I think, ruled some of the early interviews that were not recorded to be inadmissible.

• 42:00Speaker 00

  Yeah.

• 42:01Speaker 01

  So then through his legal aid lawyer, because there were still a couple of other witnesses who'd said things against him. He pleads guilty to manslaughter. But even then, he didn't really understand what he was pleading to. Eventually, the conviction is quashed. And I remember one of the legal aid lawyers was asked if he under. You think Jean understood what was being said to him?

• 42:24Speaker 00

  Um.

• 42:24Speaker 01

  And she said something like, um, no, most of the times that I met him, he sat alone, uh, staring in silence, staring at the wall.

• 42:37Speaker 00

  Yeah.

• 42:38Speaker 01

  He, he, you know.

• 42:39Speaker 00

  And that this, was that from the Pilbara region?

• 42:41Speaker 01

  Yeah.

• 42:41Speaker 00

  And this is, yeah, isolation.

• 42:44Speaker 01

  It's said to be the most remote, uh, community in Australia. I think it's about seven hundred Ks from Alice Springs and about nine hundred to a thousand Ks from Broome. It's a speck in the Western Desert. It's a tiny community, Kua Kura. So, yeah.

• 43:01Speaker 00

  Uh, uh, and that's, that is where the legal system gets very complicated. And, yeah, lesson, lessons learnt, seeing that. I know we're on the back of Barable, the, the parliamentary inquiry. One of the first recommendations was a training film to be made for New South Wales Police.

• 43:18Speaker 00

  Speaking about the, uh, the, the issues that I encountered and what the experts had said and how we could, could address it. So, yeah, hopefully we are becoming more, more aware of it. But it's a complex thing.

• 43:29Speaker 01

  It is.

• 43:29Speaker 00

  People, people get caught up and, uh, yeah.

• 43:32Speaker 01

  Yep. I, I think people sometimes wanna see the justice system as like, you know, as a, a bit like, but as one of my colleagues put it to me years ago, a bit like Marvel Comics, you know, there's, uh, evil villains and superheroes.

• 43:45Speaker 00

  Yeah.

• 43:45Speaker 01

  And there ain't nothing in between. Well, that's not life, as you and I both know. The, things can get very complex.

• 43:51Speaker 00

  Yeah.

• 43:51Speaker 01

  And difficult, uh, for police, for suspects, um, particularly First Nations people. And there's a few examples of, um, Aboriginal Australians in the book who have been, uh, wrongfully arrested.

• 44:05Speaker 00

  Yeah.

• 44:05Speaker 01

  Convicted and so on, for a variety of reasons. Um, you know, identification evidence in one case, um, in the case of Eric Honeysett, uh, who was a well-known Sydney.

• 44:16Speaker 00

  Yeah.

• 44:16Speaker 01

  Criminal.

• 44:17Speaker 00

  Yeah.

• 44:17Speaker 01

  That's an entirely different kettle of fish, but he, he did get framed.

• 44:22Speaker 00

  Yeah.

• 44:23Speaker 01

  Back in the early eighties, back in those days where, as we were just discussing, you know, um, confessions. Confessions were suddenly made by a bloke who's been through the system.

• 44:34Speaker 00

  Well, he's as tough as nails. I'll, I'll let the people read the book on that one, but it's interesting in that, uh, he, uh, got verbal, ended up pleading guilty and then they found the actual offender for it.

• 44:46Speaker 01

  They, he pleaded guilty.

• 44:47Speaker 00

  Because he, he knew, okay, well, I, I can't beat this system.

• 44:51Speaker 01

  I can't beat the system. And if I plead guilty to a lesser charge, I won't be facing life, maximum ten years. As he said later, I did some arithmetic.

• 45:00Speaker 00

  Plead a guilty to a, a verbal.

• 45:02Speaker 01

  Didn't do.

• 45:04Speaker 00

  I've got inadequate legal representation as well, because I think, uh, that, that plays a big part in a lot of miscarriages in, of justice. And, yeah, I talk with the DPP, I know how hard they're, they're working. So, yeah, what, what's your take on inadequate legal representation?

• 45:23Speaker 01

  Um, my only advice is if, if you can afford it, get a good lawyer, somebody who's experienced in the criminal law. That's easier said than done.

• 45:34Speaker 00

  Yeah.

• 45:34Speaker 01

  For many people, um, they might have enough assets so they don't qualify for legal aid. Legal aid's overworked.

• 45:41Speaker 00

  No, that's, I mentioned the DPP, but legal aid is notoriously overworked.

• 45:46Speaker 01

  But there's a number of cases where defence lawyers should have, you know, should have called an expert witness.

• 45:53Speaker 00

  Well, I, I like to think it's changing, uh, changing to a degree, because the media landscape has, has changed. You know, you don't have to be affiliated with a large media organisation and, yeah, different forms of social media and all, all that. But because, and you would have known it, early days as, as a journalist and, and covering crime matters, there was a real strong affiliation with the police. And it was basically, the police give you this information, that's what's reported. And there wasn't, generally speaking, a lot of scrutiny done about what was being provided. I think in this day and age, there's more accountability and more scrutiny. And I, I think that can help because media play a big part in some of the miscarriages of justice.

• 46:35Speaker 00

  Because if you put, yeah, the person like the Harry Blackburn one, that could have just rolled, rolled and rolled through, couldn't it?

• 46:41Speaker 01

  Yeah, absolutely.

• 46:43Speaker 00

  And you would have, imagine the articles you could, uh, write about it, you know, convicted this serial rapist hiding in a police office for all these years. And it would have gone, uh, just play, played out.

• 46:52Speaker 01

  Yeah, well, it absolutely would have, and that's what, uh, the Royal Commissioner said. He, he could possibly or even probably have been convicted.

• 47:01Speaker 00

  Yeah.

• 47:01Speaker 01

  And nobody would have known. I mean, he, well, he would have known. Um, and he had some pretty good lawyers whom I met with. So, but, yeah, you, I think you're right, you're absolutely right. The system is better, that, certainly much better. There is more supervision of police.

• 47:16Speaker 00

  Yeah.

• 47:17Speaker 01

  There is more scrutiny, I think, from the media than there was back in the seventies and eighties where, you know, I was a, a police reporter and you relied on the.

• 47:25Speaker 00

  Yeah.

• 47:26Speaker 01

  Certain squads to, like homicide, armed robbery, that sort of thing, to get information.

• 47:31Speaker 00

  Yep.

• 47:32Speaker 01

  Um, you had to have contacts in those squads or the head of the C I B or people senior. And there, there was probably this unacknowledged trade off that if you, if you got really good information.

• 47:46Speaker 00

  Yeah.

• 47:46Speaker 01

  You know, you were tipped off about somebody to be arrested for a big murder.

• 47:51Speaker 00

  That, that's.

• 47:51Speaker 01

  There's, there's a trade off that you don't.

• 47:53Speaker 00

  You don't criticize.

• 47:54Speaker 01

  Don't criticize the police.

• 47:56Speaker 00

  Yeah.

• 47:57Speaker 01

  Uh, that started to change in the eighties. And, um, yeah, the media definitely has a role to play. And I think there's a lot more scrutiny now than there was back in the seventies and eighties.

• 48:07Speaker 00

  Well, I, I think it's good too, in having this, uh, book out like this and, and people that read it and, and we're talking about it now, just understanding that there are mistakes made. And, uh, it's important that, and, uh, each story there, there is a clear lesson that can be learnt. And, yeah, it's, if one would assume, lessons are learnt. Um, forensic evidence, um, the, the scientific evidence is one that, uh, quite often, uh, causes, uh, problems in, uh, courts. Let's talk the, uh, story of Jamma, is it?

• 48:38Speaker 01

  Farah Jamma in Melbourne, yeah.

• 48:40Speaker 00

  Um, with the, uh, DNA evidence.

• 48:42Speaker 01

  Yeah, the DNA evidence, um, the.

• 48:45Speaker 00

  Because Neil, just when I thought you couldn't shock me anymore, you came up with that story and I've gone, no.

• 48:51Speaker 01

  I've, I've, I feel, I feel bad that you're reading this on holidays.

• 48:55Speaker 00

  There, there goes all the zen and all the, you know, chilled vibes I had.

• 48:59Speaker 01

  It is, uh, part of it is a little confronting, but I think people will find, will, will go, wow. I, I didn't understand how that could happen. Now I understand how it can happen. This case, this, uh, young bloke whose family had fled Somalia, they'd, um, settled in, in Melbourne.

• 49:21Speaker 01

  He's about, uh, eighteen or so, he's doing his, well, the equivalent of his H S C. Um, he's, uh, you know, minding his own business. It, the case starts at a nightclub for mature, mature adults. Apparently anybody over twenty-eight is mature. That was the age, um, don't ask me why. A woman and her couple of her friends go to the nightclub. They preload, uh, in the car outside before they go in. She's forty-eight years old, she's, uh, she goes into the nightclub. It's a big nightclub, there are hundreds of people in there. Um, she loses track of her friends. I think she goes in at something like ten, twenty P M.

• 50:04Speaker 01

  Uh, and this is seen on one of the CCTV cameras. She says, you know, I spoke to a couple of blokes, I sat down, had a drink, had another drink. Um, and then everything went blank.

• 50:16Speaker 00

  Yep.

• 50:17Speaker 01

  She's found in the women's toilets, unconscious, the door's locked.

• 50:23Speaker 00

  Yeah.

• 50:23Speaker 01

  Uh, they have great difficulty getting her out. Um, women, the security women and, um, a patron have to jump over and help carry her out. Uh, she's taken to hospital, obviously. Um, she's unconscious, she's very blurry, she says, I don't know how it happened, I didn't have that many drinks. Um, I'm, I'm worried I might have been assaulted.

• 50:45Speaker 00

  Hmm.

• 50:45Speaker 01

  And, and that's fair enough.

• 50:46Speaker 00

  Yep.

• 50:47Speaker 01

  She's.

• 50:47Speaker 00

  Not knowing what's happened.

• 50:48Speaker 01

  She's not knowing what's happened. Once she said that, certain protocols were put in place. Um, a doctor's called in, uh, to, uh, and there's, within this hospital, which she's been taken, there's something called a crisis care unit. And the doctor, who's experienced and a very good doctor, does swabs and tests.

• 51:09Speaker 00

  Yep.

• 51:09Speaker 01

  And takes samples and so on, which are then put on slides. It's all done within this small room. Um, the results come back later, they have found sperm.

• 51:22Speaker 00

  Hmm.

• 51:22Speaker 01

  Um, so to all intents and purposes, she has been raped.

• 51:27Speaker 00

  Yep.

• 51:27Speaker 01

  Um, she just can't remember anything, uh, she's passed out. They do DNA, this takes some weeks.

• 51:33Speaker 00

  Yeah.

• 51:34Speaker 01

  The DNA matches that of the eighteen-year-old Somali bloke, Farah Jamma.

• 51:44Speaker 01

  This is a story within a story because it's, it's difficult to explain because how did his DNA come to be on the database? Anyway, his DNA is on the database. It matches that found on the woman.

• 52:00Speaker 00

  Yep.

• 52:00Speaker 01

  From the nightclub. The police then naturally launched an investigation. Um, they go and arrest him and he's eventually charged with the rape of the, of the woman. But even, but even then the police are a bit concerned because he's a tallish, uh, young, good looking Somali bloke.

• 52:21Speaker 00

  And he would have stood out in that club.

• 52:24Speaker 01

  It's a nightclub for mature couples and singles. I think it's pretty much white people. Nobody has seen, um, anybody that matches his description. Security have not seen him. Staff have not seen him. The victim herself says, I did not speak to any black men that night. That was her quote. So, and there's nothing on CCTV, although some of the CCTV doesn't work as.

• 52:51Speaker 00

  Yeah.

• 52:51Speaker 01

  You know, often happens. Um, this case rests wholly on the DNA, which they've taken from the woman and which matches Farajama, the young bloke. He says, I didn't do it. I've, I've never been to the nightclub. I've never been near the nightclub. Um, the police do all the right checks, no fingerprints. You know, he's not near there anywhere. They check bank statements, phones, all the stuff that you should have been done. They put the brief up to the D P P and even the D P P says, this is a unique case because that's all we've got.

• 53:27Speaker 00

  Yeah.

• 53:28Speaker 01

  We have nothing else. There's no corroboration at all.

• 53:31Speaker 00

  Relying solely on the DNA.

• 53:33Speaker 01

  Relying solely on the DNA. What happens in court is that, you know, the prosecution says DNA is essentially infallible. It is eight hundred, this is, this is the actual figure that was used, eight hundred billion times more likely to have come from the young man than anyone else, which as you.

• 53:55Speaker 00

  Yeah.

• 53:55Speaker 01

  Have pointed out previously means you'd have to go to another galaxy. So, I mean, I, I sort of, I don't understand those figures. I don't understand how you can reach that number, but that's what's presented. And that's, if you're the member of the jury, I mean, that's, that's got to be convincing.

• 54:13Speaker 00

  Well, it's him.

• 54:13Speaker 01

  You've, you've got to say it's, it's him. Um, even though nobody's seen him at the nightclub, there's no evidence he's ever been to the nightclub that night or any other night. There's nothing to put him even within Q E.

• 54:26Speaker 00

  Yeah.

• 54:27Speaker 01

  Um, and there are some alibi witnesses for him, but they're members of his family. And in the witness box, they're not very impressive because it's, they've never been in the court before.

• 54:40Speaker 00

  Miscommunications.

• 54:40Speaker 01

  Miscommunication again. The jury, to their credit, they're, they're on the, on the ball. They go, they ask a question of the judge. How is this man's DNA on the database?

• 54:54Speaker 00

  Yeah.

• 54:55Speaker 01

  And this goes back to a point you were alluding to earlier or mentioned earlier. They're not allowed to be told how it's on the database. And the judge says, words to the effect of, don't worry about that. That's not something you have to consider. You just go with the evidence.

• 55:13Speaker 00

  Hmm.

• 55:13Speaker 01

  They go with the evidence and they obviously, the only evidence, DNA, they go, well, can't be wrong. Prosecutor says, it can't be wrong. It's not contaminated, has not been contaminated. He's found guilty. He goes to jail. Uh, it's not until, um, a long time later that an appeal is sort of lodged. And to, uh, his credit, a lawyer within the office of the D P P starts looking at the, at the case. And he wonders how the DNA got on the database. And he goes back to the very beginning because they'd all concentrated on, oh, there must have been contamination at the police laboratory.

• 55:55Speaker 00

  Yeah.

• 55:56Speaker 01

  Police lab says, no, no, because, and they present.

• 55:59Speaker 00

  Protocols.

• 56:00Speaker 01

  That all the protocols have been followed. They present cogent reasons why there is no contamination. The solicitor from the D P P, because an appeal's coming up, goes back to the hospital. As it turns out, the night before, the woman who felt she'd been raped has come in and been examined. About 20 hours earlier, a young woman had come in and been examined in the very same room by the very same doctor. And she too had had swabs taken. Um, and she had said she'd been sexually assaulted. That's what she said at that stage.

• 56:41Speaker 00

  Yeah.

• 56:42Speaker 01

  She then withdraws her complaint. And as an later inquiry found, um, she substantially agreed with the version that had been given by Farajama, that a week or so earlier, I can't remember the exact timeline, she, the young woman.

• 57:03Speaker 00

  Yeah.

• 57:03Speaker 01

  Had had sex with him.

• 57:05Speaker 00

  Yeah.

• 57:05Speaker 01

  And, um, and two other men. And she was, well, she withdrew her complaint. And she, and the men said it was consensual. She more or less agreed and that was found to be the fact in a subsequent inquiry.

• 57:21Speaker 00

  Yeah.

• 57:21Speaker 01

  I don't want to, you know, um, sort of say that, that this is commonplace or anything. But this is where the case has gone awry. It's in the hospital. The younger woman has come in on, say, Friday night. Um, the older woman from the nightclub has come in on the Saturday, both examined in the same room.

• 57:44Speaker 00

  Yeah.

• 57:45Speaker 01

  That's where his, his DNA has come from, but it's been, it's been contaminated there.

• 57:52Speaker 00

  Yeah.

• 57:52Speaker 01

  So that when they, it, it matches, but it's been contaminated on one of the slides. As it turns out, these units, the crisis care units aren't cleaned properly. There's been contamination there. So thi- this is particularly difficult for the woman who thought she'd been assaulted because a bloke's been convicted.

• 58:11Speaker 00

  Yeah.

• 58:12Speaker 01

  You know, and.

• 58:13Speaker 00

  And thinking why I'm unconscious.

• 58:15Speaker 01

  Yeah, absolutely.

• 58:16Speaker 00

  Say going through all the trauma associated with that.

• 58:18Speaker 01

  She's gone through all the trauma. She gives evidence in the court case, says, look, I can't remember.

• 58:23Speaker 00

  Yeah.

• 58:23Speaker 01

  She tells the truth. She's done absolutely the right thing. But it now turns out, um, and there's this inquiry led by Frank Vincent Q C. It now turns out the contamination of the DNA happened in the hospital at the very beginning. And there is, there is in fact no sexual assault in the nightclub. And the woman comes to accept that, which would obviously be traumatic in itself.

• 58:54Speaker 00

  I mean, it just, it does, I'm thinking your mind would be all over the place.

• 58:58Speaker 01

  Um, but, but in his inquiry, Frank Vincent sort of talks about common sense. And says total faith was put in the DNA. Everybody jumped over all these hurdles.

• 59:10Speaker 00

  Yeah.

• 59:11Speaker 01

  That this bloke had never been seen and common sense tells you that if he had been at the nightclub, he would have been seen. And also the timeline, the woman.

• 59:24Speaker 00

  Small window of opportunity.

• 59:25Speaker 01

  Very small window of opportunity. She enters the nightclub at 10:20. She's found in the toilet 10:50. On her own statement, she's, after 10:20 has bought a drink, sat down, had a cigarette, spoken to a few blokes. She wasn't there to pick up or anything. She was just there for relaxation, to have a good night, to wind down. But there's what a 20 or 30 minute window where, as, as Frank Vincent said, I mean, the timeline didn't fit. People have jumped over all these obvious, common sense things that tell you this can't have happened because of DNA.

• 1:00:01Speaker 00

  Yeah.

• 1:00:01Speaker 01

  Uh, and you know, um, DNA is not infallible. Well, that, that. Without, without corroboration, there was no other corroboration.

• 1:00:09Speaker 00

  Yeah.

• 1:00:09Speaker 01

  That was the sole evidence and it was wrong.

• 1:00:12Speaker 00

  That, that's, that's a concerning thing, isn't it? And then that everyone involved in the investigation stepped away and, well, we've got the DNA and not looking at, it was almost like physically impossible for that to occur. When you, when you look at it now and we sit here and we say we've got the benefit of hindsight.

• 1:00:29Speaker 01

  Yes.

• 1:00:29Speaker 00

  But even at the time, you're thinking such a small window of opportunity. He wasn't seen in the club, the location she was found. Um, you'd, you'd have to have doubts, but I, and what you've raised here with DNA, because it's getting, forensic science is improving so much. I dare say when you walk out of here, if the police grabbed hold of you, you'd have some of my DNA on you.

• 1:00:52Speaker 01

  Yeah.

• 1:00:52Speaker 00

  Yeah, that, and, and that's what we've got to be careful of.

• 1:00:54Speaker 01

  Yeah.

• 1:00:54Speaker 00

  It's, it's such a, a fine thing, but mistakes can be, can be made.

• 1:01:00Speaker 01

  I think the, the big mistake was that it was the only evidence. And that's what Vincent Q C said, you know? I mean, there was nothing to put him in the nightclub in the vicinity. She said, I've never seen him before. Um, it sort of defied, defied common sense. And as you say, there was a very narrow window. Um, I, you know, and it goes to your point that unless there's some other evidence.

• 1:01:26Speaker 00

  Yeah.

• 1:01:27Speaker 01

  You, you, DNA can be contaminated. I'm not, I'm not saying, you know, obviously DNA is an invaluable tool for police.

• 1:01:35Speaker 00

  Definitely.

• 1:01:36Speaker 01

  Obviously, and, um, it's improving all the time, but mistakes can be made.

• 1:01:42Speaker 00

  Yeah. Well, it's a cautionary tale and I, I think sometimes it's got to be spelt out to everyone in an obvious way. This is where mistakes can be made because, you know, as an investigator, well, we've got the DNA. He's semen's found on, on the woman. This is science, one in eight hundred billion. We can't argue with that.

• 1:02:00Speaker 01

  Can't argue with that.

• 1:02:01Speaker 00

  But, uh, yeah, again, well, we started off the discussion in part one, talking about common sense in court. There is common sense that we need to hang on to, isn't there?

• 1:02:09Speaker 01

  Yeah, I think particularly, I mean, the, the jury did ask the question.

• 1:02:13Speaker 00

  Hmm.

• 1:02:13Speaker 01

  And this goes to your point of what jury is not allowed to know.

• 1:02:18Speaker 01

  If they'd, I guess it's the prejudicial.

• 1:02:22Speaker 00

  Proverbative.

• 1:02:23Speaker 01

  Yeah, they might have gone, but even though they weren't told, I mean, they must have gone back in and said, well, he must have been convicted or charged with something because his DNA is there.

• 1:02:34Speaker 00

  The way the judge tried to answer that, I'm thinking, what is the discussion going on in the jury room? Well, he must, he must be a rapist.

• 1:02:41Speaker 01

  I'd, that's pretty much what I'd be saying. Well, he's definitely come to the attention of the police.

• 1:02:46Speaker 00

  Yeah.

• 1:02:46Speaker 01

  They've taken his DNA for a reason and it would probably be, or it could be sexual assault.

• 1:02:52Speaker 00

  And, and that would.

• 1:02:53Speaker 01

  And he's got off.

• 1:02:54Speaker 00

  And that would add to the jury going, okay, there is no other evidence supporting it. The police wouldn't have charged him. We've got the DNA. We know it's him.

• 1:03:01Speaker 01

  We know it's him.

• 1:03:02Speaker 00

  Uh, yeah. And that's, well, that's why I think the jury need to, yeah, uh, have as much information as, as possible. So they can make informed decisions. Um, Neil, we've, we've, yeah, we could talk all day about this unfortunately. Because it, I would have been a better book if it was great convictions, but falsely convicted. Hey, on the, on the cover of your book, um, a meticulous unraveling of Australia's most horrendous judicial failures. Mercer's book reads like a thriller, but at its heart, it's the devastation wreaked on innocent victims of the legal system. Now that's signed off by Kate McLymont.

• 1:03:39Speaker 01

  Yes.

• 1:03:39Speaker 00

  She's a scary lady.

• 1:03:41Speaker 01

  I, I know.

• 1:03:41Speaker 00

  I, I, a lot of respect for her. I, I.

• 1:03:43Speaker 01

  I've known Kate for many years.

• 1:03:45Speaker 00

  Yeah.

• 1:03:45Speaker 01

  And many, many years. She's a, she's a colleague of mine and a friend. So she was, she was very generous in her praise.

• 1:03:53Speaker 00

  Well, the, the reputation she has in the, in the media and journalism, and I, I know that, that when she's on, on a case, uh, she tends to get to the bottom of it.

• 1:04:02Speaker 01

  She, she does. I think it's called tenacity.

• 1:04:04Speaker 00

  Yeah, I think that's a good, I was going to say like a, a dog with a bone as a compliment.

• 1:04:08Speaker 01

  Yes.

• 1:04:08Speaker 00

  That the way, uh, she goes, uh, goes after stories. But she touches on something there and I think it, it's great. It reflects on, on the book that someone with Kate's, um, uh, reputation, uh, does a endorsement like that. But the, uh, devastation wreaked on the innocent victims.

• 1:04:24Speaker 01

  Yeah.

• 1:04:24Speaker 00

  And we've had a discussion, we've dissected, uh, different investigations. But it does have an emotional impact, doesn't it? Just, not just emotional, physical, it destroys lives if we get it wrong.

• 1:04:35Speaker 01

  Yeah, it does. And it, it must have particularly like one of the cases in there that the bloke spent 20 years in jail. Um, I mean, there's 20 years lost of your kids growing up.

• 1:04:46Speaker 00

  You can't get back.

• 1:04:47Speaker 01

  Which they never get back. You lose friends, the people, you know, their lives move on. Um, as that, that particular bloke told me, he said, you know, people would write at the beginning when I first went in, friends would write, friends would visit.

• 1:05:01Speaker 00

  Hmm.

• 1:05:02Speaker 01

  And it sort of slowly stopped, not because they were being, um, they'd forgotten him, but their lives had moved on. His life stood still.

• 1:05:10Speaker 00

  Yeah.

• 1:05:11Speaker 01

  In a jail cell. And, um, yeah, that's, that's the cost of it. It, it does turn people's lives upside down and, and some of them just never recover.

• 1:05:21Speaker 00

  Yeah, yeah. Well, thank you for coming on, uh, I Catch Killers again for a second, second time. And I know you've won Walkley Awards and other, other awards, but that must sit real high in your, uh, high points of your career. Coming on I Catch Killers.

• 1:05:35Speaker 01

  It does indeed, Gary, twice. I'll, I'll be working on the next time.

• 1:05:39Speaker 00

  Okay, very, very good.

• 1:05:41Speaker 01

  Thanks for having me.

• 1:05:41Speaker 00

  And also thank you for pointing out, uh, as, as we're discussed today, uh, where these mistakes happen, they will. We're, we're human. Mistakes, mistakes happen, but if we learn from the mistakes, it puts the system in a better, better place. And I think that's an important, uh, important message to come out.

• 1:05:57Speaker 01

  Yeah, indeed.

• 1:05:58Speaker 00

  Thanks very much.

• 1:05:59Speaker 01

  Thank you.

• 1:05:59Speaker 00

  See you next time.

• 1:06:00Speaker 01

  See you next time.