Does Australia Need a Specific Institution to Correct Wrongful Convictions?
| Date | 01 August 2007 |
| Published date | 01 August 2007 |
| DOI | 10.1375/acri.40.2.179 |
| Author | Lynne Weathered |
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THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 40 NUMBER 2 2007 PP.179–198
Address for correspondence:
Lynne Weathered, Griffith Law School, Gold Coast Campus,
Griffith University, PMB 50 Gold Coast Mail Centre QLD 9726. E-mail:
l.weathered@griffith.edu.au
Does Australia Need a Specific Institution
to Correct Wrongful Convictions?
Lynne Weathered
Griffith University,Australia
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 correc-
tion 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 identi-
fied as failing to meet the needs of the wrongly convicted.
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 correct-
ing 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
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LYNNE WEATHERED
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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