Does Australia Need a Specific Institution to Correct Wrongful Convictions?
Weathered, Lynne, Australian and New Zealand Journal of Criminology
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.
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). …