Protecting Australia's innocent

19th Jun 2014

Australians support and understand fundamental pillars of our justice system: the importance of a fair trial, trial by jury or judge, impartiality, and the integrity of the rule of law. Nonetheless, innocent people have been, and continue to be, convicted of crimes that they did not commit. In Australia, few avenues exist for individuals who are wrongfully convicted to seek redress.  

While an official list of exonerations does not exist in Australia, there have been many high-profile cases of wrongful conviction, including Lindy Chamberlain-Creighton, Andrew Mallard, and Graham Stafford.

Despite this poor track record, Australia has been falling behind its international counterparts when it comes to implementing reforms for better identifying and correcting wrongful convictions. Unlike the UK and Scotland, for example, there are no independent criminal cases review bodies to examine cases in which there are claims of wrongful conviction every year, in Australia.

In most jurisdictions around Australia, once a right to appeal has been exercised and a final decision made, there is no express power to entertain a second appeal, even where fresh evidence bearing on the original finding of guilty comes to light.

However, progress has been made in the South Australian appeals process in the form of the newly assented and commenced Criminal Law Consolidation Act 1935 (SA). Under section 353A, the 2013 amendment allows prisoners to appeal their conviction a second time, if ‘there was a substantial miscarriage of justice’, once ‘the court is satisfied that there is fresh and compelling new evidence that should, in the interests of justice, be considered on an appeal’. Under this legislation, ‘the court may quash the conviction, and either direct a judgment and verdict of acquittal to be entered, or direct a new trial’.

The reforms were introduced in South Australia in response to those few cases where compelling, fresh evidence has emerged, revealing that a possible injustice has occurred, according to South Australia’s Attorney-General, John Rau. This includes a new witness coming forward, or via new technology, such as DNA testing.

NSW also has a superior post-conviction review mechanism in place in comparison with other jurisdictions in Australia. Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) enables a convicted person to petition the Governor or the Supreme Court for a review of his or her conviction or sentence or, in the case of the Governor, for the exercise of the Governor’s pardoning power. However, at this stage, South Australia is alone in its commitment to the rights of those who have been wrongfully convicted by enabling a second appeal.

In all other states and territories throughout Australia, an individual who has been wrongfully convicted of a Commonwealth offence may petition the government for a pardon, or a petition of mercy. A pardon relieves from the consequences of a conviction, but does not do away with the conviction itself. Section 21D(1) of the Crimes Act 1914 (Cth) specifically preserves the power vested in the Governor-General in the exercise of the royal prerogative of mercy.

Each of the Australian states and territories has a similar statutory power which provides the state Attorney-General with the discretion to refer suitable cases to the Court of Appeal to be heard as a further appeal, or to ask the court to provide an opinion on any point arising in the case, ‘if he thinks fit’.

As such, there is no legal right to any further hearing of the matter, and the burden and inquiry, including the financial burden of identifying, locating, obtaining, and analysing further evidence, rests entirely with the convicted person.

While the current review mechanisms are a step towards avoiding serious miscarriages of justice in Australia, the introduction of an independent statutory body to conduct such inquiry, being entirely removed from the trial process and court system, would provide greater protection of the rights of innocent people in Australia. This would also further ensure Australia's compliance with its obligations under the International Covenant on Civil and Political Rights (ICCPR).

Article 14(5) requires Australia to ensure that, ‘everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’ The lack of an adequate process across Australia for a person who has been wrongfully convicted, or who has been the subject of a gross miscarriage of justice, may amount to a violation of the requirements of Article 14(5). Establishing a criminal case review commission style body in Australia would address this concern.

Other common law countries already have such independent bodies in place. In the UK, the Criminal Cases Review Commission (CCRC), which was established in March 1997, reviews possible miscarriages of justice in the criminal courts of England, Wales, and Northern Ireland, and refers appropriate cases to the appeal courts. As at 30 April 2014, the CCRC had sent 525 cases to the court for review, and the courts have overturned 361 convictions.

A similar body exists in Scotland, and has been established since 1999. The Scottish Criminal Cases Review Commission has sent 122 cases to the courts for review and, in 70 of those cases, convictions have been overturned, or sentences have been reduced, as at 31 January 2014.

In Canada, at the level of intermediate appeals, the position is similar to that of Australia. It will not reopen appeals, although the Canadian Supreme Court will admit fresh evidence. Further, once a person’s reappeal rights have been exhausted, the only means of reopening a case by ordering new trials or appeals is by petition under section 696.3 of the Canadian Criminal Code to the federal Minister of Justice. Despite this, six judicial inquiries in Canada have recommended the adoption of a CCRC model for Canada.

In Canada, non-profit organisation, the Association in Defence of the Wrongly Convicted (AIDWYC) identifies, advocates for and exonerates individuals who have been wrongfully convicted. Founded in 1993, AIDWYC has since secured the exoneration of 18 wrongly convicted persons, who together spent more than 175 years in prison for crimes they did not commit.

According to the National Registry of Exonerations in the United States, many wrongful convictions have been overturned. In 1989, there were 20 known wrongful convictions. As at 17 June 2014, 1,374 people are listed as having been exonerated from charges since 1989.

No such registry exists in Australia, meaning that we do have any way of knowing exactly how many Australians have faced a similar fate.

It is imperative that we take appropriate action to prevent the possibility of innocent people being convicted in Australia.

While limited reforms have been introduced in South Australia, those who have been wrongfully convicted still face significant, and often impossible, obstacles in attempting to prove their innocence.

Australia’s criminal justice system is in need of crucial revision in this area. Access to the courts of appeal to identify and correct wrongful convictions, via the establishment of a national, independent criminal case review commission, would be an important step towards ensuring that justice is not only seen to be done, but is in fact done.

Failure to implement such change will leave Australia behind, in a space where crucial, and potentially life-changing, evidence will remain hidden, and wrongful convictions remain uncorrected.

Lauren Fitzpatrick was formerly the Media and Policy Assistant at the Australian Lawyers Alliance. She is currently completing a Bachelor of Arts in Communication (Journalism)/ Bachelor of Laws, at the University of Technology, Sydney. 


The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

Learn about how you can get involved and contribute an article. 

Tags: Human rights Criminal justice Lauren Fitzpatrick