Looking to the Past to see the Future

Photo by Ousa Chea on Unsplash

I sat down at a Griffith Law School event recently to find a drink coaster in front of me with a quote from Winston Churchill:

The farther backward you can look, the farther forward you are likely to see.

Apparently, Churchill didn’t really say that. He actually said, “The longer you can look back, the farther you can look forward.” Whatever words he used, he was effectively saying that in order to see what the future holds, we need to acknowledge and understand the past.

I agree with Churchill’s sentiment (irrespective of what words he said, exactly, or his political views, for that matter). To see the law’s future, we must understand its past. We must understand the challenges the future will bring, but not be so arrogant as to think they are necessarily challenges that the law has never faced before. Researching and reflecting on law’s history is always a useful, if not vital, endeavour when looking forward.

Forensic (un)science in the 21st century

Technological and scientific advances are bringing considerable change to the criminal trial process. New knowledge brings an awareness of just how unscientific courtroom science can be.

Photo by Ousa Chea on Unsplash

The admission of expert scientific evidence is being discussed as a problem, and increasingly recognised as a cause of wrongful conviction. DNA changed the game in the late twentieth-century, giving us an unprecedented capacity to identify individuals who were at the scene of a crime. This has resulted in the convictions of many – and the exonerations of many, too.

For courts – judges, jurors, parties and practitioners – to understand any kind of forensic science testimony, we are reliant on experts called to give evidence. Very recently, the President of the Victorian Court of Appeal, Justice Chris Maxwell, raised concerns about expert evidence and forensic science and the potential for people to be wrongly convicted on the basis of such evidence. His reservations were swiftly backed up by Associate Professor Richard Bassed, the deputy director of the Victorian Institute of Forensic Medicine.

In January 2020, the Hon. Michael Kirby AC CMG published an article in the Criminal Law Journal citing the need for every state and territory in Australia to have a second appeal option for people with compelling claims of miscarriages of justice.

Clearly, there is concern about forensic science at the highest levels of our judiciary and scientific community, and rightly so. The risks of miscarriages of justice are significant. In order to look into the future of forensic science and criminal trials, I want to look back at one of its darker chapters that took place right here in Australia.

The ‘Gun Alley’ murder – a wrongful conviction that took over eighty years to correct

In 1922 Colin Campbell Ross was convicted of murdering a 12-year-old girl. Much has been written on this case elsewhere. Ross’ conviction was largely based upon the evidence of a scientist, Charles Price. Price was a Government Analyst who provided the courtroom with expert testimony that hair found on a blanket in Ross’ home matched hair taken from the young girl. The hairs looked nothing alike. They were even different in colour. But the scientist explained this to the court in a way that only seemed to confirm his status as an expert. Applying a scientific method that would make contemporary researchers recoil in horror, Price testified that he had followed many women around the streets of Melbourne and noted that the hair on the nape of their necks was often different in colour to that on the top of their heads. As a newspaper later reported:

Embarrassed women who turned and found a man intently peering at their heads did not know that Price was establishing beyond doubt that the underlying hairs at the nape were often darker than those more exposed to light.

This, he confirmed, explained how the hairs from the blanket matched the hairs from the child’s head. The defence attempted to question the ‘logic’ of the hair analysis but otherwise argued the police must have planted the hairs on the blanket. Even they seemed to feel largely powerless against this science or expert witness.

Reflecting on the case some decades later, the press asked:

WOULD a jury which had heard only whispers of a new-fangled study called medico-legal science accept the assurances of trained men? Or would it accept the impassioned argument by the defence that the hairs on the blanket belonged to another girl — a blonde — who admitted she had visited the saloon?

The jury accepted the word of the expert and Ross was executed, protesting his innocence to the very end.

Source: 1953 ‘AUBURN HAIRS HANGED HIM’, The Herald (Melbourne, Vic: 1861 – 1954), 5 September, p. 15. , viewed 01 Mar 2020, http://nla.gov.au/nla.news-article249260900

The case went down in Australian legal history as a perfect example of the power of science in the prosecution of crime. In 1945 a press report on the Victorian Police Museum noted the hairs in Ross’ case were exhibited as ‘a reminder of the small clues that count in scientific crime detection.’ In 1953, the crime journalist Alan Dower wrote about the case again. Those hairs had, by then, been re-located to the Crown Law department. Dower wrote:

These are the slender hairs that hanged a man whose name will never be forgotten by students of law and crime. Medico – legal science won its place in crime investigation for all time when the jury studied the hairs and found Ross guilty of murder.

The case was one that continued to fascinate. In 1998, historian Kevin Morgan found the hairs stored in documents about Ross’ trial at the Public Records Office in Victoria. DNA testing of these hairs proved that the ‘new-fangled medico-legal science’ upon which Ross had been executed was faulty all along. The blanket hairs did not match the young girl’s hairs at all. Ross received a posthumous pardon in 2008.

The ‘Gun Alley’ murder case, as it became known, is a stark reminder of the need to properly interrogate science and the scientists in our courtrooms. But Ross’ case raises another issue for the future of criminal justice.

The preservation of evidence

Why these hairs were kept for so long is a mystery. There was no legal requirement for it. But the need to preserve evidence in order to correct miscarriages of justice is something that is often overlooked in this country – even in states that have introduced second appeal legislation. So, while Ross’ case stands as an example of a wrongful conviction at the hands of forensic science, it also stands as an example of how miscarriages of justice can be corrected where evidence is preserved. Had the hairs in Ross’ case not been kept, this miscarriage of justice would never have been corrected. What too, then, of the many other cases where such testing was not possible because evidence that could have been re-tested has not been preserved or stored?

Clearly, we still have a lot of work to do to ensure our criminal prosecution processes are as good as we know they can – and should – be. It is important that we continue to look to the past to make for a better future.

Dr Robyn Blewer