Professor David Hamer and Dr Andrew Dyer from Sydney Law School explain why Kathleen Folbigg’s pardon points to the need for a Criminal Cases Review Commission (CCRC) in Australia.
It’s a primary goal of the criminal justice system to avoid the searing injustice of a wrongful conviction. This goal is pursued through principles such as the presumption of innocence and the requirement of proof beyond reasonable doubt.
But absolute certainty in guilt isn’t feasible and isn’t required. A risk of error is run and occasional errors should be expected. They will not necessarily be corrected on appeal, where the defendant is no longer presumed innocent and weight is given to the “finality principle”. This means the jury verdict is ordinarily considered final, for the sake of efficiency and to provide the parties and society with closure.
Following an unsuccessful appeal, the finality principle bites still harder and it becomes significantly more difficult for the wrongly convicted defendant to achieve justice. The imprisoned defendant will face an almost insurmountable challenge in persuading the government (or, in some jurisdictions, court) to order an inquiry or an exceptional subsequent appeal. In order to achieve justice, defendants like Folbigg, Roberts, Keogh and Eastman require remarkable resilience, as well as supporters on the outside.
The criminal justice system needs to do more to address the statistical certainty of the occasional wrongful conviction. Overcoming this injustice shouldn’t demand superhuman reserves of fortitude, or the chance arrival of a champion.
The systemic risk of wrongful conviction demands a systemic solution.
Other developed nations have recognised that CCRCs are well-suited to this task, including England and Wales, Scotland, New Zealand, and Canada. Australia should follow in this path.
The extent of the change can be carefully calibrated through the design of the CCRC. The CCRC is a gatekeeper, and legislation can determine how widely the gate is opened.
The call for this key piece of criminal justice infrastructure isn’t new. The Australian Law Council expressed support for a federal CCRC in 2012. Commentators have called for an Australian CCRC on many occasions.
Last year former High Court Justice, Michael Kirby, reiterated his view that “such a commission is needed”. And the Sydney Institute of Criminology is currently calling on governments to take steps to establish an Australian CCRC.
Cases like Folbigg’s demonstrate that this reform is urgently required.
- This is an excerpt from the article “Australia needs a dedicated body for wrongful convictions’ published on the University of Sydney, June 6, 2023
Professor David Hamer is an expert in evidence law, with a special interest in the way criminal courts deal with evidence in determining whether to convict or acquit defendants. Dr Andrew Dyer is a Senior Lecturer in the Sydney Institute of Criminology, where he researches the intersection between criminal law and human rights law.