Sentenced to silence

A landmark case illustrates the importance of reform in what is “fundamentally a human rights issue” in South Australia, where prison inmates are banned from writing to journalists.

Edward Splatt

When Stewart Cockburn of The Advertiser came to read a jailhouse letter from Edward Splatt in January of 1979, it was to be a defining moment in righting one of the nation’s most egregious miscarriages of justice and one of the Australian media’s greatest triumphs.

Splatt had been convicted of the murder of Rosa Simper, an elderly woman who was found dead in her home. With public pressure to make an arrest mounting, police found a convenient suspect in Splatt, who worked near the Simper home and had a minor criminal history for larceny.

While there was no obvious motive, no relevant antecedents, no eyewitness and Splatt had an alibi, the conviction was supported by the expert evidence of scientists who testified that particles of paint, wood and birdseed found on Splatt’s clothing could circumstantially place him inside Mrs Simper’s home.

Although forensic science is a reliable feature of modern criminal cases, these methods were in their infancy during the 1970s and the force with which the prosecution’s experts testified to its accuracy was brought into question. Furthermore, a deathbed affidavit which substantiated Splatt’s alibi was unfairly tainted by conjecture that the exculpatory evidence was coerced.

There were also criticisms of the way the judge directed the jury in summation and, in reporting that risked contempt of court, it was revealed that many members of the jury walked away with lingering doubts that they had made the right call in returning a guilty verdict.

Splatt was sentenced to life in prison — a decision which was upheld on appeal. He was a condemned but tenacious man who spent his days writing letters to anyone who he thought would listen.

One such letter was to Stewart Cockburn: a well-respected investigative journalist who had risen to notoriety for clashing with powerful people, having locked horns with Premier Don Dunstan over the so-called Salisbury Affair which precipitated the defeat of the South Australian Labor Government in 1978.

Cockburn became interested in Splatt’s case and they began to correspond regularly, as Cockburn set about running a campaign in the media publicising the imperfections in the Crown’s case against Splatt.

By 1982 the Labor Party was on the cusp of returning to power in South Australia and, guided by community sentiment, made a commitment to hold a commission of inquiry into the Splatt case to quell growing concern that Cockburn’s articles had induced.

Edward Charles Splatt pictured at home with his wife Yvonne and dog ‘Stacey’ in Adelaide. Splatt was pardoned in 1984 for the 1977 murder of 77-year-old Rosa Amelia Simper. (Photo by Brian Webber / Newspix)

The formula of a wrongfully convicted man and a crusading journalist was to culminate in the state’s longest Royal Commission to date, a pardon and a financial settlement to Splatt. With all the clarity of hindsight, one can confidently acknowledge that but for Mr Cockburn and The Advertiser, an innocent man may still be in jail.

But the circumstances that led to that miscarriage of justice being remediated would not be possible today.

While other Australian states and territories restrict the media from interviewing prisoners, South Australia is the only Australian jurisdiction that explicitly prohibits inmates from proactively writing to media organisations. The Department of Corrections policy does not provide any explicit guidance on exemptions to the policy, or any rights of appeal.

Michael Abbott QC, who appeared for Splatt at the Royal Commission, is one who recognises that the Splatt case serves as an illustrative case for reform in what is “fundamentally a human rights issue”.

“As I’ve spent my life fighting for the rights of individuals I strongly oppose South Australia’s policy of banning inmates in jail from writing to the media,” said Mr Abbott.

“I don’t believe the policy does serve the interests of justice because a free press, and the right of everyone to communicate with a free press, is one of the last bastions that our democratic society has to ensure that government agencies and those employed in them act in accordance with the law.”

“Taking away the right of a prisoner to communicate with the free press is a punishment that is additional to the deprivation of liberty that is a necessary incident of being sent to jail to serve a sentence of imprisonment.”

Across the border, the Victorian Corrections Department does not deprive prisoners the right to contact media organisations, although it does not assign the type of privileged status that would exempt it from being reviewed and censored by departmental officers.

But Victoria is a state that has codified a right to “freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds” through that state’s Charter of Human Rights and Responsibilities passed in 2006.

For only the second time since the turn of the millennium, the Liberal Party has returned to power in South Australia, under Premier Steven Marshall. Now, as at the height of the Splatt affair, a change of government presents an opportunity to push the case for a new approach.

Indeed, press freedom was something of a battleground issue at the 2018 election, with the major parties juxtaposed in their position on passing legislation allowing journalists to defend themselves from contempt charges arising from the discharge of their ethical duty in refusing to reveal a source when so compelled by a court.

The previous Labor Government railed against journalistic shield laws, with then Attorney-General, John Rau SC, questioning the practical need for such a law and suggesting that high-profile instances of illegal behaviour by journalists in the United Kingdom should disqualify Australian journalists from any provision of professional privilege — a comparison which Mr Rau acknowledged many journalists “may not enjoy”.

The newly minted Liberal Attorney-General, Vickie Chapman, has sought to highlight the differences between the current and former governments on the matter of press freedom, saying, “In a marked change from the previous government, the Marshall Government is advancing the interests of transparency, openness and informed public debate.”

However, the Marshall Government has also signalled that it will seek to revoke voting rights from prisoners as a punitive measure, in a more typical display of tough rhetoric on law and order taking precedence over fundamental human rights.

If we are to hold fast to the principles of free speech and natural justice, then the media must be able to operate unencumbered in the pursuit of legitimate matters of public interest.

But it is difficult to imagine any government developing the political appetite to restore rights to the prison population, including those convicted legitimately, despite the notion of building public confidence in our judicial and corrections systems. Neither the South Australian Corrections Minister, nor the opposition Corrections spokesperson, would respond to numerous requests for comment.

The operative consideration is that promoting the notion of the public’s right to information is not an abstract notion but a vital element of democracy. But the difficult political circumstances surrounding the media’s performance of its vital oversight role within the judicial and correctional systems make it incumbent on the media itself to advocate the case for reform to sections of the public who may never have interacted with the judicial or corrections systems and may never expect to.

Of course miscarriages of justice are rare, but as it is demonstrably true that they do occur, any of us should have good reason to support any rational measure that will support the proper administration of justice. Edward Splatt knows something about that.