Does Australia need a specific institution to correct wrongful convictions?

• Jurisdiction: Australia
• Author: Weathered, Lynne
• Date: 01 August 2007

In recent years, hundreds of people have been exonerated overseas after demonstrating that they were wrongly convicted of crimes for which they spent many years in prison, and these are only the ones uncovered to date. Australia has its own sampling of known wrongful convictions. England, Canada and the United States have introduced different mechanisms to address in some fashion, the facilitation of exonerations. This article considers the current situation for the wrongly convicted in Australia, placing it within this international context. This comparison will demonstrate that Australia has fallen behind these other common law countries by failing to deliver new mechanisms, establish new bodies or incorporate new avenues that would enable the correction of wrongful conviction to occur. Wrongful conviction must now be recognised as an unenviable but inevitable part of any criminal justice system and a problem that should not be tolerated. Australia's criminal justice system must meet the challenge to update its provisions rather than continue to proceed under provisions other countries have identified as failing to meet the needs of the wrongly convicted.

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In February 2006, Andrew Mallard walked free from Casuarina Maximum Security Prison in Western Australia having served nearly 12 years for a murder he did not commit. The problem of wrongful conviction has been highlighted in recent years through a volume of wrongful convictions that have been uncovered and eventually corrected throughout several common law jurisdictions, including the United States, the United Kingdom, Canada and Australia.

These exonerations have occurred at a rate greater than what might have been previously thought. With that acknowledgement, several countries have introduced new measures into their criminal justice systems, aimed at investigating and correcting such injustices--countries such as England, Wales, Northern Ireland, Scotland, Canada and the United States. Australia shares a common law juridic history with these countries but overall is yet to develop new measures similarly aimed at the investigation and correction of wrongful conviction. This article first provides a brief introduction to the topic of correction of wrongful conviction. It then reviews some of the mechanisms available internationally outlining how different jurisdictions are providing new and various alternatives for the correction of wrongful conviction. It examines the current situation for wrongly convicted people in Australia and makes preliminary recommendations regarding options to help facilitate exonerations in this country.

The article is concerned with the correction of both DNA and non-DNA cases of wrongful conviction. The term 'wrongful conviction' is used in this article to refer to the conviction of factually innocent people, that is, cases in which a person was convicted of a crime that he/she did not commit. As such, wrongful conviction is essentially defined in lay, not legal terms. Such cases are referred to in this article as 'factual innocence' cases. These definitions are used to clearly define the essence and nature of the type of wrongful conviction cases with which the author is concerned--the wrongful conviction of factually innocent people. Wrongful conviction is similarly referred to in this and other jurisdictions, particularly in England as 'miscarriages of justice'. However, because this term has a broader meaning than the conviction of innocent people, it is only used when referring to legislative provisions that use that term.

Further, in this article wrongful conviction will typically refer to convictions that still stand after a person has exhausted his or her traditional legal avenues. That is, for Australia, those convictions that remain after the traditional appellate avenues have been exhausted, that is, usually following the appeal to the State courts (and occasionally also to the High Court; Weathered, 2005). This limits the definition of wrongful conviction to a narrow range of cases. 'Wrongful conviction' could extend to those cases that are also corrected at their appeal. An example of this is the Queensland case of Frank Button, where new DNA evidence presented at his appeal, showed Button to be innocent of the rape of which he was convicted--a case referred to by the appellate court as 'a black day in the history of the administration of criminal justice in Queensland' (R v Button [2001] QCA, p. 133, 10 April 2001). However, the issue addressed in this article is the correction of those cases where the traditional appellate avenues currently available in Australia have failed to correct a wrongful conviction. It is these cases that the new bodies in the United Kingdom and Canada are designed to address. The question for Australia is what we should do in this regard.

Correction of Wrongful Conviction

Both in Australia and elsewhere, criminal justice systems have traditionally enjoyed a great deal of societal confidence that the conviction of an innocent person is exceptionally rare--but this attitude is starting to change. There is an obvious difficulty in providing statistics about the percentage of wrongly convicted persons in prison. Clearly this is a matter of estimation, which varies. Tentative estimates in the United States range between 0.5% and 5% of all incarcerated persons (see Huff, Rattner, & Sagarin, 1996, pp. 53-67). Gross, Jacoby, Matheson, Montgomery and Patil (2005) note that while it is almost impossible to estimate the number of false convictions that have occurred in the United States, in their 2005 study they conclude that 340 official individual exonerations have occurred between 1989 and 2005. A key feature of the Gross et al. study is the dutiful discussion of the large number of categories of falsely convicted defendants they had to exclude, including mass exonerations, defendants who received comparatively light sentences, and innocent defendants who have not yet been exonerated. Of the exonerations studied, 144 were the result of DNA evidence and 196 were brought about through other means (Gross et al., 2005).

While research into causation of wrongful conviction is still in its infancy, the DNA exonerations in the United States have provided an exploration into systemic causes of wrongful conviction that had not before been possible. Known systemic causes include incorrect eyewitness identification, faulty scientific evidence, informer evidence, police or prosecutor misconduct, false confessions, bad lawyering, and tunnel vision.

It is probable that additional causes are likely to surface when greater research by each country is undertaken. Unquestionable differences between jurisdictions will impact on the incidence of, and causal factors involved in, wrongful conviction. The Honourable Justice Thorp of New Zealand in his recent review into wrongful conviction, noted that 'the principal causes of miscarriages were the same in all the countries studied, though occurring in different degrees' (Thorp, 2005, p. 73). As this article focuses on developments in addressing wrongful conviction, it does not examine the causes of wrongful conviction.

Addressing the problem of wrongful conviction generally requires attention to several areas, including causation, correction and prevention of wrongful conviction as well as post exoneration issues. This article, however, focuses only on those issues that fall within correction of wrongful conviction, an area arguably requiring urgent attention in Australia (Weathered, 2003).

Correction of wrongful conviction itself generally involves a number of specific areas. These typically include preservation of evidence, access to information and evidence, rights to DNA innocence testing of evidence, investigation of claims of wrongful conviction, and access to appellate avenues once new evidence of innocence is available. These areas are fundamental to facilitating exonerations (Weathered, 2004).

The following section provides a summary of some of the ways the correction of wrongful conviction is being tackled in the United Kingdom, Canada and the United States. This article examines the updated legislative provisions and newly created bodies to review and correct wrongful convictions in the United Kingdom and Canada, whose criminal justice systems and occurrence of wrongful conviction are historically and currently more analogous to that in Australia. Appellate provisions in the United States being substantially different to those in Australia, are not examined. Rather, the ability of Innocence Projects and similar organisations in highlighting the problem of wrongful conviction and the statutory reforms that have subsequently occurred in that country are reviewed. This article then considers the current situation in Australia for those claiming to be wrongly convicted, outlines some of the reforms proposed to date and concludes with some recommendations for Australia in light of the overseas developments and our own jurisdiction specific issues.

The United Kingdom

England's Criminal Cases Review Commission (CCRC) was the first government-funded organisation to investigate and refer claims of wrongful conviction to their Court of Appeal. It has incited a great deal of international interest. Established in 1997 following the 1993 Runciman Royal Commission into the safety of convictions in the English criminal justice system, the CCRC is, by its own account, an independent body charged with the responsibility to undertake thorough, impartial, open and accountable investigation of suspected miscarriages of justice in England, Wales and Northern Ireland (CCRC, 2001). The Commission was empowered under the Criminal Appeal Act 1995, chapter c.35, section 8. This piece of legislation covers England, Wales and Northern Ireland.

The CCRC has approximately 100 staff, 11 Commissioners and 46 caseworkers (CCRC, 2006a). Subsequent bodies...