Andrew L. Urban
Wrongful convictions in Australia are either a) uniquely infrequent or b) largely left undisturbed, according to a briefing paper by Flinders University legal academic Dr Bob Moles, examining the effect of the recently introduced new right of appeal laws. Is Australia fair dinkum about wrongful convictions?
Australians are labouring under a misapprehension if they believe their criminal justice system hardly makes mistakes.
“If you take the number of wrongful convictions identified in the UK through the Criminal Cases Review Commission (CCRC) over the last 25 years – 535 cases, and then adjust for differences in population between UK and Australia – we should have picked up, say, 150-200 such cases. As it is, we have picked up barely a handful as the figures demonstrate.”
Referring to his paper, Dr Moles remarks: “The headline figures are that SA has had just 3 successful appeals in 8 years, Tasmania has had none in six years and Victoria has had 3 in 3 years.”
By comparison, the CCRC in the UK (popn 67 million) has referred cases to appeal courts which have overturned an average of 25 cases per year for the last 25 years. Australia (popn 25 million) is “clearly not working hard enough to own up to the wrongful convictions which have occurred there, “ adds Dr Moles.
imprisoned for 38 years
South Australia first introduced the new right of appeal in 2013. In the eight years since then, there have been 3 successful appeals and 5 unsuccessful appeals. The successful cases include one in which the person had been imprisoned for over 20 years for a crime which never occurred. One of the unsuccessful appeals involves a man who has been imprisoned for over 38 years. He has eight of the countries’ leading experts to say the evidence at his trial was false and misleading. He was still refused leave to appeal. That case is now proceeding to the High Court of Australia.
Tasmania introduced the new right of appeal in 2015. In the six years since then there has only been one application, which was unsuccessful. It involves a notorious case which has been the subject of documentaries, podcasts and much media attention. There are many who take the view that if that case cannot be overturned there is no hope for any others. (An application seeking leave to appeal to the High Court on behalf of that case was lodged on January 4, 2022.)
Victoria introduced the new right of appeal in 2019. In the three years since then there have been 3 successful appeals (two of which arose from the Lawyer X scandal), and four rather hopeless applications. There has been one additional case as a referral by the Attorney-General under the previous procedure.
According to the most conservative estimates, about 2% of serious criminal convictions are unsafe; “that would amount to some 800 wrongful convictions. Some of course may be picked up by the regular appeal process,” says Dr Moles, “but the experience of the UK for example, is that they have discovered that even after all appeals have been exhausted, there are still a significant number of wrongful conviction cases to be found.”
There is absolutely no doubt, he says, that “if Keogh, Neill-Fraser, Bromley and many others had occurred in the UK they would have been referred back to the courts by the CCRC and also no doubt that they would have then been overturned by the appeal courts. The lack of a CCRC in Australia means that the appeal courts are not being properly subjected to peer review and the High Court cannot process the number of cases necessary to fulfil that function.”