Katherine is a legal scholar, criminologist and historian who joined the Law Faculty in 2008. She researches criminal evidence, documentation and visual culture. Katherine is author of Captive Images: Race, Crime, Photography (Routledge, 2007) and the forthcoming book In Crime's Archive: The Cultural Afterlife of Evidence. She is co-editor of The Lindy Chamberlain Case: Nation, Law, Memory (Australian Scholarly Publishing, 2009).
- Photographic and visual evidence
- Legal documentation
- History of criminal procedure and evidence
- Criminal Procedure
After the conclusion of criminal proceedings, criminal evidence sometimes survives in what is described here as an afterlife. In its afterlife, criminal evidence is preserved in various locations; this article explores the museum as a repository for evidentiary exhibits. It examines the case of Lindy Chamberlain, the victim of Australia's most notorious miscarriage of justice, and the evidence that has survived since her
exoneration. Drawing upon interviews with Chamberlain herself, and also the curator of the Chamberlain collections at the National Museum of Australia, this article examines the challenges posed by curating a wrongful conviction.
Biber, K. 2017, 'Grant'.
Lindy Chamberlain is the victim of Australia's most notorious miscarriage of justice; in 1982 she was wrongly convicted of the murder of her baby daughter, Azaria. In the decades following her exoneration, Lindy Chamberlain-Creighton, as she is now known, came to an arrangement with the National Library of Australia to care for the papers she had accumulated as a result of her daughter's death and the legal processes that followed. This article examines the 'Chamberlain Papers' through the lens of materiality and scholarship associated with the 'archival turn' in the humanities, social sciences and information sciences. This approach affords an understanding of documents as objects, artefacts and technologies. Working materially with documents provides new opportunities for legal scholars to understand files, papers, recordkeeping and bureaucracy, and gives legal significance to papers created outside the law.
Biber, K., Loughnan, A. & Quilter, J. 2016, 'Book Review: Such Slow Murder: Feminism, Moral Panic and Homicidal Women. (Review of 'Female Criminality' by A. Cossins).', Cultural Studies Review, vol. 22, no. 1, pp. 319-326.View/Download from: UTS OPUS
Biber, K., Doyle, P. & Rossmanith, K. 2014, 'Perving at Crime Scenes: Authenticity, Ethics, Aesthetics', Griffith Law Review, vol. 22, no. 3, pp. 804-814.View/Download from: UTS OPUS or Publisher's site
This is a conversation between 3 scholars. It was peer reviewed by the journal editors, and members of the journal's editorial board.
Hamer, D.A., Anthony, T., Biber, K., Crofts, P., Dennis, I., Douglas, H., Eburn, M., Edmond, G., Farrar, S., Hopkins, A., Kumar, M.A., Ligertwood, A., Loughnan, A., Mitchell, T., Palmer, A., San Roque, M. & Townsley, L. 2014, 'Submission on Exposure Draft: Evidence Amendment (Evidence of Silence) Bill 2012', Sydney Law School Research Paper, no. 14.
This article explores the cultural afterlife of criminal evidence. During the criminal trial, strict rules govern the collection, admission and interpretation of evidence at trial. However, after the conclusion of the trial, this material returns to a notional `archive and is sometimes used by artists, scholars, curators and others, but subject to no rules or standards. This article examines a range of instances in which criminal evidence has been used post-trial, and proposes a jurisprudence of sensitivity for responding to the harm that is sometimes done when criminal evidence leads a cultural afterlife.
A long-held and fundamental principle of our criminal justice system is that people accused of crimes have a right to silence, arising from the presumption of innocence. Rules of evidence try to protect this `right during trial, by ensuring that juries understand that adverse inferences cannot be drawn from the silence of the accused. Silence, in court, can mean nothing, and we are not to speculate about what might motivate an accused person to remain silent, or what they might have said had they spoken. However, an examination of the jurisprudence in this area shows that the law is often not dealing with actual silence; sometimes when the law refers to the `right to silence, it seems to mean a `refusal to hear. In other instances, there is actual silence, and yet the law refuses to subject that silence to any critical interpretation, insisting that we cannot infer anything from it. While we have learned, from theatre, music, linguistics, religion and psychology, to develop sophisticated means for interpreting silence, the law demands that we set aside these interpretive tools, hearing silence that isnt there, and inferring nothing about something.
Biber, K. 2011, '"Crooks Like Us", Peter Doyle, Historic Houses Trust of NSW, Sydney', Current Issues in Criminal Justice, vol. 23, no. 2, pp. 287-290.
The Court Information Act 2010 (NSW) attempts to achieve transparency and accountability under the framework of an 'open justice' system. The Act aims to make court information more accessible to members of the public and media organisations, and to achieve this consistently across all of the NSW jurisdictions. In effect, the Act opens the jUdicial archive, making court records accessible to the public. By making this material accessible, the legislation has the potential to put evidence into a fresh context, after the facts have been resolved in litigation. This article considers several examples from Australia and abroad in which evidence from legal proceedings was put to unexpected uses - either by artists, curators or scholars - giving rise to ethical challenges to how we think about evidence after the conclusion of legal proceedings. Re-contextualising evidence carries with it the risk of harm, humiliation, and the exposure of sensitive and secret material. This article will argue that the Act cannot address the dangers of misuse of evidence without adopting an archival sensibility. It sets out some of the theories and practices adopted by archivists that could guide us before we open the evidentiary archive.
Biber, K. 2011, 'Murdering Stepmothers: The Execution of Martha Rendell', Australian Feminist Studies, vol. 26, no. 70, pp. 509-511.
Biber, K. 2011, 'Wanted: The Outlaw in American Visual Culture; Capturing the Criminal Image: From Mug Shot to Surveillance Society; Pictures from a Drawer: Prison and the Art of Portraiture', History of Photography, vol. 35, no. 4, pp. 439-441.
Biber, K. 2010, 'Book Review: "Neurotic, Perverse and Psychotic: 'Lacan at the Scene', by Henry Bond"', Source:The Photography Review, vol. 62, pp. 64-66.
The rules of evidence enable law to discover its truths. The rules enable material facts to be 'found' in a haystack of data, and they erect thresholds along a single pathway to admissibility. Each piece of evidence follows the same passage, is tested against the same thresholds, and if it survives it is ruled admissible, and can be used in adversarial litigation in the proof of claims or charges. In teaching the rules of evidence to law students, we are teaching them law's methodology for proving facts that are in dispute. Through the rules of evidence, we teach students to classify, abstract and reason like lawyers. This article questions whether Indigenous perspectives might offer an opportunity to think afresh about how we teach and use laws of evidence.
Edmond, G., Kemp, R.I., Porter, G.R., Hamer, D., Burton, M., Biber, K. & Rocque, M.S. 2010, 'Atkins v The Emperor: the cautious use of unreliable expert opinion', The International Journal of Evidence and Proof, vol. 14, pp. 146-166.View/Download from: UTS OPUS
What happens to a country under constant surveillance? The recent decision in Atkins v The Queen provides a partial answer.1 The sheer availability of images seems to be driving decisions about their admissibility and use as identification evidence. Confronted with CCTV recordings associated with criminal activities English courts have been reluctant to restrict their admission or impose limitations on the scope or form of incriminating opinion derived from them. Although the Court of Appeal decision in Atkins v The Queen is concerned primarily with the way in which an opinion derived from CCTV images was expressed, the decision exposes jurisprudential weakness and continuing problems with photo comparison and facial-mapping evidence.
In 2002 the Jewish Museum in New York exhibited Mirroring Evil, in which contemporary artists represented the Holocaust. Holocaust survivors demonstrated against the exhibition, holding placards in the street outside. An 81 year old survivor of Buchenwald, Isaac Leo Kram, carried a sign that read: `I was there. I testify: Genocide is not art! (Kershaw 2002). A sign at the entrance of the museum warned visitors that some might be upset by the exhibition. The New York press, typically supportive of the citys art institutions when attacked by critics, repeatedly questioned the Museums judgment in holding the exhibition. At the heart of the controversy was grave concern that some of the artworks were testing the limits of how the Holocaust could be represented and remembered.
Biber, K. 2009, 'Visual jurisprudence: the dangers of photographic identification evidence', Criminal Justice Matters, vol. 78, pp. 35-37.
Biber, K. & Dalton, D. 2009, 'Making art from evidence:Secret sex and police surveillance in the Tearoom', Crime, Media, Culture: an International Journal, vol. 5, no. 3, pp. 243-267.View/Download from: UTS OPUS
In 1962, police officers concealed themselves for two weeks in a mens public toilet in Mansfield, Ohio, and filmed men performing illicit homosexual sex acts. The film footage was used to secure convictions for sodomy, and inaugurated a new form of police surveillance of homosexual public sex. In 2008, the visual artist William E. Jones screened the police footage in art galleries around the world, to both critical acclaim and public objection. This article examines the film, both as a prosecutorial artefact and an artwork, to explore what it says about public sex, police surveillance, the criminalization of homosexual practices, visual evidence, and contemporary art.
Biber, K., Edmond, G., Kemp, R.I. & Porter, G.R. 2009, 'Law's Looking Glass: Expert Identification Evidence Derived from Photographic and Video Images', Current Issues in Criminal Justice, vol. 20, no. 3, pp. 337-377.View/Download from: UTS OPUS
This article offers a critical overview of expert identification evidence based on images. It reviews the Australian case law and then, in an interdisciplinary manner, endeavours to explain methodological, technical and theoretical problems with facial mapping evidence. It suggests that extant admissibility jurisprudence and traditional safeguards associated with expert opinion evidence and the adversarial trial might not adequately protect those accused of committing criminal acts when they are confronted with incriminating expert identification evidence.
In July 1900, Jimmy Governor and his brother Joe commenced their murderous rampage across central New South Wales, killing nine women and children, maiming others, and raping a teenage girl. They were pursued for three months across 3000 kilometres, taunting their hunters with clues, letters and tricks. The last men in the state to be proclaimed outlaws, their pursuit and capture fascinated and terrified a nation on the eve of its Federation.After his conviction, Governors execution was delayed until after the conclusion of Federation celebrations; even a fragile nation understood the perilous symbolism of launching nationhood whilst hanging a transgressive black man. This article re-examines the crimes, evidence and trial of Governor, and the intense media reportage around them. It reveals a perpetually contested claim for control: of the family, the workplace, race, nation and empire.
Biber, K. 2008, 'Besieged at Home: Jimmy Governor's Rampage', Public Space: Journal of Law and Social Justice, vol. 2, pp. 1-41.
Biber, K. 2007, 'Book Review - 'Framed: Women in Law and Film' by Orit Kamir', Australian Feminist Studies, vol. 22, no. 54, pp. 413-414.
Biber, K. 2007, 'Book review: "Framed: Women in Law and Film"', Australian Feminist Studies, vol. 22, no. 54, pp. 413-414.
Biber, K. 2007, 'Looking and knowing: Jurors and photographic evidence', Reform, vol. 90, no. Winter 2007, pp. 24-26.
Biber, K. 2006, 'Book review: "Law's Moving Image"', Social & Legal Studies, vol. 15, no. December 2006, pp. 607-609.
Biber, K. 2006, 'Book Review: 'Law's Moving Image'', Social & Legal Studies, vol. 15, no. 4, pp. 607-609.
The American photographer Taryn Simon was inspired by the Innocence Project (which aims to acquit falsely convicted people by introducing evidence that was unavailable during their trial) to begin her own photographic project. Simons project explicitly scrutinises the role played by photography, especially its role in producing guilt from innocence, in the criminal justice system.
A grainy series of surveillance photographs was tendered into evidence at the trial of a young Aboriginal man accused of robbing a bank. Two police officers testified that they recognised him from the photographs. On appeal to the High Court of Australia, the judges thought that the hooded bandit in the image looked like the spectre from Hamlet. This article uses the discourse of spectrality to explore the consequences for law and ethics when haunted by the transgressive image. It examines the confrontation between the foundational illegality of the Australian nation, and the indigenous man who is accused of a crime against property.
Biber, K. & Graham, N.G. 2006, 'Customs in Common: Law, Culture, Memory', Macquarie Law Journal, vol. 6, pp. 1-3.
Biber, K. 2005, '"Murdering Holiness" by Jim Phillips and Rosemary Gartner', Australian Journal of Legal History, vol. 9, pp. 131-134.
Biber, K. 2005, 'Book Review: Murdering Holiness: The Trials of Franz Creffield and George Mitchell, by Jim Phillips and Rosemary Gartner', Australian Journal of Legal History, vol. 9, pp. 131-134.
On 23 December 1826 on the New South Wales frontier, a white shepherd named Henry Preston went to his employer, John Jamieson, to conect his weekly rations. Neither Preston nor his dog returned home, and another shepherd raised the alarm. A brief search yielded nothing. Foul play was feared and suspicion fen upon a group of local Aborigines. The Magistrate was not at home and the district constable, although summoned, did not arrive. A rumour circulated that the Aborigines had been seen with sugar rations. Jamieson decided to take the matter into his own hands.
Biber, K. 2005, 'On not speaking: The right to silence, the gagged trial judge and the spectre of child sexual abuse', The Alternative Law Journal, vol. 30, no. 1, pp. 19-23.View/Download from: UTS OPUS
Is there a right to silence for people accused of crimes? What is the .extent of that right? The right to silence co-exists with the presumption of innocence; both are long-standing principles which have come to be given their effect through rather narrow technical procedures. In NSW and federally these principles are implemented through s 20 of the Evidence Act 1995, and the interpretation of s 20 in some of the cases discussed in this article. In criminal matters, the Crown bears the burden of proving the guilt of the accused to the requisite standard: beyond a~y reasonable doubt. The accused is entitled to be presumed innocent unless and until that standard has been met. The accused need not do anything in their own defence, and under s 20 the failure of the defendant to give evidence does not entitle a trial judge to Comment in any way that suggests the defendant has failed to give evidence because they are, or believe they are, guilty of the offence.
Biber, K. 2005, 'Sexual Assault victims deserve confidentiality', Sydney Morning Herald, vol. 13/05/2005.
Biber, K. 2005, 'The Innocents': judgment in art, law and deviancy', OnLine Opinion, vol. 13/10/2005.
This paper proceeds from the idea that the nation is a fantasy, an imaginary zone through which identity, belonging and control are mediated. I explore the consequences of imagining the nation in this way by reading the formative Australian cases through which Native title jurisprudence developed in this country. Those cases - Mabo, Wik and Yorta Yorta - and the public discourses surrounding them reveal the competing national fantasies at stake in disputes over property, recognition and co-existence. Using the theoretical writing of psychoanalytic scholars Slavoj iek and Julia Kristeva, and the critique of nationalist practices from the work of Benedict Anderson and Ghassan Hage, I interrogate what it means to possess the nation.
Biber, K. & Stephens, T. 2003, 'Bowling for Paranoid Nationalism - A review of Michael Moore's film "Bowling for Columbine" after reading Ghassan Hage's book "Against Paranoid Nationalism"', Current Issues in Criminal Justice, vol. 14, no. 1.
Biber, K. & Stephens, T. 2003, 'Review Essay: Bowling for Paranoid Nationalism: A Review of Michael Moore's Film, 'Bowling for Columbine' after Reading Ghassan Hage's Book, 'Against Paranoid Nationalism'', Current Issues in Criminal Justice, vol. 14, no. 3, pp. 324-327.
Biber, K. 2002, '"The Hooded Bandit: Aboriginality, Photography and Criminality in Smith v The Queen'', Current Issues in Criminal Justice, vol. 13, no. 3, pp. 286-300.
Graycar, R., Morgan, J. & Biber, K. 2002, 'The Hidden Gender of Law', The Hidden Gender of Law, vol. Vol 24(4), pp. 603-607.
Biber, K. 2001, '"The Threshold Moment: Masculinity at home and on the road in Australian cinema"', Limina: A Journal of Historical and Cultural Studies, vol. 7, pp. 67-86.
McDougal, D. & Biber, K. 1999, 'Book Review: Transcultural Cinema by David McDougal', Canbera Anthropology, vol. 22, no. 2.
Biber, K. 1995, 'The Emperor's New Clones: Indiana Jones and Masculinity in Reagan's America', Australasian Journal of American Studies, vol. 14, no. 2, pp. 67-86.
Biber, K. 2017, 'Law, evidence and representation' in Brown, M. & Carrabine, E. (eds), Routledge International Handbook of Visual Criminology, Routledge, London and New York, pp. 13-23.View/Download from: UTS OPUS
'Evidence' is a noun and a verb. It refers to a thing and a process. It might be religious or profane, legal and literary, and perhaps all of these at once. It can be the testimony of a witness, the contents of a document or a real object or place. For the lawyer, evidence can be circumstantial, provisional, rebuttable, presumptively true, reliable, unreliable, or it might demand that inferences be drawn from it. It can be voluminous and complex and it might require specialised knowledge to understand it. It could be something we all know, or it might be something recovered by forensic examination. It can be visible to the naked eye or retrievable only by means of a device. It can be digital, ephemeral, or a trace left behind. Because lawyers love rules, there are lots of laws of evidence, and so evidence must be approached with formality, seriousness and deliberation. Evidence – in law – must never be self-evident and, where it is, there are rules about that too.
'Representation' has a distinctive legal orientation. In law, the term 'representation' (amongst other uses) can describe any act which conveys meaning. If somebody speaks, smiles, frowns, shrugs their shoulders, raises a hand, raises a fist, rolls their eyes or stamps their feet, these are representations. If they write a note, deliver a lecture or whisper a secret, these are representations. If a person paints the wall of a cave, posts a status update, tags a train, or takes a photograph, each is a representation. Beyond the fact of their occurrence, they mean something. Representations are asserted facts, whether express or implied by their maker, and regardless of what is inferred by the person who hears or observes them. Representations might be made accidentally or fortuitously. They might be factual assertions made by somebody who doesn't know the facts. They might be statements of belief or desire, intention or expectation, they might be designed to deceive, but they nevertheless contain some ke...
Biber, K. 2017, 'The Cultural Afterlife of Criminal Evidence' in Rafter, N. & Brown, M. (eds), Oxford Research Encyclopedia of Criminology and Criminal Justice, Oxford University Press, New York, pp. 1-20.View/Download from: UTS OPUS or Publisher's site
This article explores what happens to criminal evidence after the conclusion of legal proceedings, described here as the afterlife of evidence. The text investigates the ways that this material proliferates in the shadow of the law, in both cultural and commercial contexts. During the criminal trial, the rules of evidence and criminal procedure operate
to tightly regulate the collection, admissibility, and interpretation of evidence. After the criminal trial, these rules no longer control evidence, and this material is sometimes subject to the substantial cultural curiosity associated with true crime and its artifacts. This article sets out some of the new questions that are posed by this material when it is
transferred beyond the law's control.
Biber, K. 2016, '"Peeping: Open justice and law's voyeurs"' in Sharp, C. & Leiboff, M. (eds), Cultural Legal Studies: Law's Popular Cultures and the Metamorphosis of Law, Routledge, Abingdon, pp. 160-182.View/Download from: UTS OPUS
What can law's popular cultures do for law, as a constitutive and interrogative critical practice? This collection explores such a question through the lens of the 'cultural legal studies' movement, which proffers a new encounter with the 'cultural turn' in law and legal theory.
Biber, K. 2015, '"Open secrets, open justice"' in Martin, G., Scott Bray, R. & Kumar, M. (eds), Secrecy, Law and Society, Routledge, Abingdon, pp. 234-250.
This edited collection constitutes both a timely and critical intervention into secrecy debates, as they stretch across the various fields of law, politics and social inquiry.
Biber, K. 2015, 'The rules of evidence' in Andrew, B. & Dyer, K. (eds), Evidence (exhibition catalogue), Museum of Applied Arts and Sciences Media, Ultimo NSW, pp. 26-35.
Biber, K. 2014, 'RPS v R  HCA 3 Commentary' in Douglas, H., Bartlett, F., Luker, T. & Hunter, R. (eds), Australian Feminist Judgments: Righting and Rewriting the Law, Hart Publishing, Oxford, pp. 275-278.
Biber, K. 2009, 'Judicial Extracts' in Staines, Biber, K, Arrow & M (eds), The Chamberlain Case: Nation, Law, Memory, Australian Scholarly Publishing, North Melbourne, Australia, pp. 113-151.View/Download from: UTS OPUS
Biber, K., Staines, D. & Arrow, M. 2009, 'Introduction' in Deborah Staines, M.A. & Biber, K. (eds), The Chamberlain Case: Nation, Law, Memory, Australian Scholarly Publishing, North Melbourne, Australia, pp. 3-6.