There are many Chester Porter stories to be heard in and around Australia’s legal precincts. One well-known anecdote typifies the man. Before Peter Clyne became notorious for his clashes with the Australian Taxation Office (and later being disbarred from being a barrister), he was a member of a New South Wales University debating team, his team-mates being Adrian Roden and Neville Wran (a future judge of the New South Wales Supreme Court and a future premier). Clyne described Porter’s role as the adjudicator thus: ‘He had a tongue like a razor blade and the gentleness and delicacy of a rattlesnake on heat, but he was always very fair [emphasis added].’

Porter’s concern is with the hit-and-miss quality of our criminal trial system, how easy it is for an innocent person to be convicted. In The Conviction of the Innocent, Porter carefully gathers the evidence and then sets out a string of recommendations for reforming the law and the criminal justice system to avert the miscarriages of justice that he relates from reoccurring.

Written before the recent shambles of the Dr Haneef case, The Conviction of the Innocent sets a worryingly long list of examples, from the stripping in 1895 of Captain Dreyfus’s epaulettes and medals in Paris, to the Guildford Four and Birmingham Six cases in the United Kingdom, to the all too many Australian cases where the legal system failed the innocent: the poor forensic evidence in the Lindy Chamberlain case, the prosecuting authorities in Western Australia’s efforts to keep the deaf mute Darryl Beamish in prison, despite a mass murderer having confessed to the crime; the case of the congenitally blind man in Queensland tried for taking a young girl in his car and for watching her have a shower.

The problem is that few who should read this book will do so and even fewer will act on it. As Porter notes, law-and-order auctions – where political parties compete for police approval and the approval of the ‘shock jocks’ and tabloids (and increasingly, not just the tabloids) over fictitious crime waves – do not help.

The disciples of law and order – sometimes termed ‘Laura Norder’ – presume that everyone accused is guilty and should receive the maximum sentence. They constantly affirm that judges are too soft on crime, and that ‘the people’ should in fact decide sentences. It is amazing that these crazy ideas – which advocate, in effect, a system similar to the despised People’s Courts of the former Communist states – are supported by the conservative side of politics. It is to be hoped that the voters have more sense than to be lured by those who, in effect, advocate the persecution of the unfortunate. We should not forget that a majority of prisoners have a history of mental abnormality. Our gaols have now substantially replaced mental hospitals.

It is a sad fact that politicians from both sides of the parliament are now happy to see unanimous verdicts for murder replaced by majority verdicts. (Porter would accept an 11:1 verdict after eight hours’ deliberation by the jury.) The belief that so many hold dear – that it is better that some guilty offenders go free rather than an innocent person be imprisoned (or worse) – is under challenge from politicians, elements of the media and persons such as the prominent anti-child abuse campaigner Hetty Johnston. Porter notes that Johnston was reported by the Courier-Mail in February 2005 as telling a Rotary audience: ‘“If one innocent man is in jail, then too bad for him.” If she said these words, they accord with the attitude of many such campaigners. Such attitudes encourage a witch-hunt mentality in the authorities.’

Modern-day technology, in particular DNA matching, can and will save innocent people from going to prison or from being executed overseas. There is ample evidence for this. But in New South Wales at least, the innocent had better not hold their breath. As Porter notes, ‘Undoubtedly, the “Laura Norder” auction, the “tough on crime” competition, has blunted the social conscience towards the fate of those wrongly convicted.’

The New South Wales Innocence Panel, established in 2000 to investigate claims by convicted persons who believed that DNA evidence might assist in proving their innocence, was suspended in 2003, before it had found any case of wrongful conviction, after an application was lodged by one of those convicted of the horrific murder of Janine Balding. A relative complained that its inquiries were aggravating her grief. The then police minister stated that he did not believe there were ‘sufficient checks and balances in place to protect victims of crime from further anguish’. As Porter notes, ‘No doubt, such a veto is good politics.’ Bad luck for the person who may have been proved innocent through matching of DNA material. And why is it that those so keen to ‘cement them in their cells’ and ‘throw away the keys’ do not seem to appreciate that if the person claiming to be innocent is in fact innocent, a guilty offender is still at large in the community? Why do some feel that having someone, indeed anyone, locked away for a crime is better than having the guilty offender in prison?

The NSW DNA Review Panel, established in 2006 as the successor to the Innocence Panel, is a toothless tiger. It has no inherent powers to investigate whether biological material exists, and is totally reliant on the advice provided by the New South Wales Police. The duty for police to retain biological samples that might permit DNA testing, and the panel itself, only have a life of seven to ten years under the sunset provision in the legislation. It goes nowhere near to being an independent, well-resourced body capable of responding to claims that DNA evidence will prove (or disprove) a person’s claim of innocence.

Porter sets out a string of reforms to the criminal justice system, some of which are already in place in some states. A major plea is for the expenditure of government money on well-equipped, fully integrated laboratories, staffed by capable and impartial scientists, to deal with forensic evidence. These laboratories should be – as they are in Victoria and South Australia, but not in New South Wales – open to the defence as well as to the Crown. The aim should be to obtain the right result, not to obtain convictions. The laboratory should be independent of the police force. As Porter notes, the imbalance between the resources of Lindy Chamberlain and the Crown at her trial was manifest. ‘When the two sides were evenly supported in the [Morling] Royal Commission [for which he was Counsel Assisting], the Crown case fell apart.’

By selecting and discussing many cases of wrongful convictions, and a few disgraceful blunders, it is not Porter’s intention to lower the reputation of the criminal justice system. To the contrary, he believes ‘that Australia probably has the best criminal justice system in the world, and that an innocent accused has a better chance of acquittal in our courts than anywhere else.’ But wrongful convictions have happened, and they will happen again. ‘If this book makes it less likely to happen, and more likely to be corrected if it does happen, then I shall have achieved my object.’

If only.