‘The system protects its own’: Why most people who are wrongfully convicted don’t get compensated

Geoffrey Ferguson was just doing his job. One windy day in October 2015 he was driving his semi-trailer along the Katamatite-Shepparton Road, delivering pork in his usual, careful way.

Suddenly, he had a coughing fit and lost consciousness. His truck veered into the path of an oncoming car and a man, tragically, died. It was an accident. A life-changing piece of terrible luck for two unrelated families.

That’s not how the Victorian justice system saw it. Without providing any evidence that this otherwise conscientious truck driver had recklessly or negligently driven into oncoming traffic, police and prosecutors charged him with culpable driving causing death.

Geoffrey Ferguson crashed in 2015 and killed a man. It was not his fault.Credit: Paul Harris

The prosecution called an expert (whose expertise in this matter was questionable), who told the jury it was “extremely unlikely” that coughing had caused Ferguson’s unconsciousness. Police and prosecutors dismissed the witness evidence of Ferguson’s brother who had heard him coughing and passing out on the other end of the phone.

And in his closing address, the prosecutor openly scoffed at the key evidence, asking the jury: “Are you going to fall for that?”

The result? Less than two hours after being sent away to deliberate, the jury found Ferguson guilty. The judge sentenced him to seven years and nine months in prison.

When all this came before an appeal court a little over two years later, the judges immediately saw the flaws. Pausing only to rebuke the prosecutor – in the strongest possible terms – for his language, they set Ferguson free.

But two years behind bars had changed his life forever.

“It’s completely foreign,” he says of life inside. “It’s like you’ve gone to another country, almost.”

Ferguson now suffers from complex PTSD. He can’t work. He can barely handle being around people. He lives on the dole in a bungalow at the back of his sister’s house in Queensland. He fears driving when anyone else is in the car.

“And I still have this ... subconscious expectation at some point, the police are going to come along and gather me up and pull me back into custody and get their claws back into me. I live with that fear,” Ferguson told me.

The crash scene where a man died after Ferguson, the truck driver, coughed, passed out and ran into an oncoming car in a case of cough syncope.

“I have seen the Office of Public Prosecutions at work, the courts of law at work, and the Victoria Police at work, and then Victorian corrections – having been under their control and seen how they operate. Right now, I have no confidence in any of it. I feel that they’re as corrupt as can be.”

His anger reminded me of the bitter words of Lindy Chamberlain in one TV interview after she was freed from prison after her wrongful conviction for murdering her baby, Azaria. “Don’t trust the police,” she said.

Ferguson and Chamberlain suffered one of the greatest injustices the state can impose on a citizen: the wrongful removal of their freedom. For him, the errors have been life-changing. So you might expect that the state would offer Ferguson some compensation.

You’d be wrong.

In 1980, Australia signed up to the International Covenant on Civil and Political Rights. It says in the case of a miscarriage of justice, people “shall be compensated according to law”. Forty-four years later, none of the Australian states have passed such a law.

‘The very person who created the law that screwed me over is going to ... decide whether to give me something for my trouble.’

Geoffrey Ferguson, wrongfully convicted former truck driver

Lawyer Jeremy King, from Robinson Gill, says he is approached regularly by people who have been damaged by one or other part of the legal system. He tells me that, in theory, they have two options to seek restitution. They can sue the state for compensation, or they can push the government for an “ex gratia” payment.

Almost invariably, though, King has bad news for the people who approach him. He delivered that news to Ferguson a couple of weeks ago. Because just being wrongfully convicted is not enough under Australian law. You need to prove that corruption, malice, false imprisonment was involved.

“That’s a pretty high bar,” King says. “And the Victoria Police, they weaponise that against people ... they throw it back at you and say, ‘Well, something bad might have happened here, but you’re not going to satisfy the elements ... Bad luck.’”

In Ferguson’s case, even though the court of appeal said in its judgment that the prosecutor’s comments to the jury had been “a contravention of his responsibility to the court and to the system of justice”, King believes his case does not get over the bar. And prosecutors are protected by yet another layer of the law: the doctrine of prosecutorial immunity.

It’s no better in NSW. There, Gordon Wood, a man wrongly convicted of throwing his girlfriend, Caroline Byrne, off a cliff, tried to sue for malicious prosecution after three years behind bars. But even though the NSW Supreme Court found Wood had been prosecuted “without reasonable and probable cause”, and was highly critical of Wood’s prosecutor, the judge found this fell short of malice.

Caroline Byrne and Gordon Wood. Credit: The Sydney Morning Herald

The appeal court agreed and dismissed Wood’s appeal. It ordered him to pay the state’s costs in the civil case.

In Victoria in the past fortnight, the state government went one step further. It proposed a new law to ban one particular group of people from even arguing their case.

The High Court in 2018 said, unanimously, of the convictions involving ersatz defence lawyer Nicola Gobbo that they were “corrupted in a manner which debased fundamental premises of the criminal justice system”. But under Victoria’s State Civil Liability (Police Informants) Bill, those affected by this corruption will be prevented forever from suing the government, Victoria Police or individual officers for damages.

The gangsters who would be denied damages payouts won’t get much public sympathy. But that doesn’t seem a good enough reason to let the government and police off the hook for their own wrongdoing.

There is, in theory, a second way for the wrongfully convicted to get compensation. Enter Kathleen Folbigg.

Her lawyers are not even bothering to lodge a lawsuit to seek compensation for the 20 years Folbigg wrongfully spent in prison for the (natural) deaths of her four children.

Kathleen Folbigg moments after her convictions were quashed by the Court of Criminal Appeal in 2023.Credit: Kate Geraghty

Her lawyer, Rhanee Rego, has let it be known that her client expects a record payout – which would put it at more than $7.2 million. The mechanism? To negotiate/sweet talk/bully/shame the NSW government into coughing up a one-off sum– known as an “ex gratia” payment.

In Folbigg’s corner is the most high-powered support network ever assembled in Australia on behalf of a wrongfully convicted prisoner. Lawyers, highly connected business people and a public relations firm worked for years to raise money and overturn the public narrative of Folbigg’s guilt through the tabloid media. The Australian Academy of Science successfully attacked the bodgy science that underpinned the prosecution’s case.

In a speech in Melbourne last week, Folbigg supporter businessman Peter Yates – a former confidant of Kerry Packer and long-time Macquarie Bank executive – called this group the “League of Luminaries”.

Lindy Chamberlain’s compensation – $1.4 million and $400,000 in legal fees – was also an ex gratia payment. But not everyone has such international infamy, or even the backing of a business titan and a PR firm.

Geoffrey Ferguson certainly does not. For him, even seeking an ex gratia payment from Victoria’s politicians sounds laughable.

“They’re the ones [who did this to me]. So the very people who created the law that screwed me over and protects the prosecutors and police are now going to be the ones to decide whether they give me something for my trouble.

“To me, it’s just such a con. And I can’t bring myself to go through the stress of it anyway.”

In any event, according to lawyer Jeremy King, the Victorian government is tighter than most in handing out compensation. They are extremely reluctant to make a payment if there is still a legal remedy possible – no matter the unlikelihood of success. It’s a classic catch-22, says King.

Nik Dimopoulos, the victim of police in the Hares and Hyenas bookstore case. Credit: Eddie Jim

So what about a case so egregious that the government has no choice but to pay out? Think of Nik Dimopoulos, whose arm was ripped from its socket by police officers outside an LGBTQ+ bookshop after they mistook him for someone else. King, who represented Dimopoulos, can’t really talk about that.

“All the good cases settle,” he says. That way, no precedent is established.

Both King and Rego say there is urgent need for reform. In the UK, Europe, many states in the United States, and New Zealand, compensation is a right. And if Australia is anything like the UK – and there’s no reason to think we’re much different – we have perhaps eight or nine wrongful convictions a year.

It could be you, me, any of us.

Like Geoffrey Ferguson, you could have an accident and end up in prison.

Or be a parent who wears the blame after children meet tragic, accidental deaths – like Lindy Chamberlain and Kathleen Folbigg, and arguably  Robert Farquharson, the man convicted of murdering his children after driving into a dam on Father’s Day 2005. His conviction is now facing serious questions.

As things stand, though, police, prosecutors and lawyers, can make these terrible, life-changing errors without anything to hold them to account.

“The legal profession protects their own,” says one person who knows the system from the inside.

“They don’t want to admit fault.”