Writing in Pearls and Irritations, renowned legal academics Stephen Cordner and Kerry Breen explain how Australia’s criminal appeals system remains deformed after useless tinkering. This is an extract from their paper that marked Wrongful Conviction Day (Oct.2)
A proposal for a CCRC was considered by the South Australian Parliament in 2013 but was rejected in favour of a new right to a further appeal if the convicted person could produce ‘fresh and compelling’ evidence.
Variants of this have now been adopted by all Australian jurisdictions other than the Northern Territory and NSW. There is no mention of ‘fresh and compelling’ evidence in the grounds governing referral from the English and Scottish CCRCs to the appeal courts; their grounds are framed more broadly.
Sadly, by choosing what seemed an attractive option, six Australian jurisdictions have now cemented a ‘Catch 22’ entrapment of wrongly convicted people across the country. Yes, there are new grounds for appeal available but they are effectively impossible to meet and bad in principle. Below we seek to explain why.
In 2013, the South Australian Parliament seemed to base these new grounds for a further appeal on a simple but deceptive notion of legal symmetry. Its thinking appeared to be that if, on the basis of fresh and compelling evidence, the state can re-prosecute persons found to be not guilty, then wrongfully convicted people who can produce their own ‘fresh and compelling’ evidence should be entitled to a new appeal. This new state power undermined the long-held general principle of the finality of jury decisions, especially in not guilty verdicts.
For several reasons, this approach is flawed. First, it has been in place long enough to show that it is not fit for purpose.
Since the ‘fresh and compelling’ evidence provisions were legislated for across Australia (from 2013 onwards), there have been only 18 applications to courts of appeal with five upheld. By comparison, extrapolating from the English CCRC data, we estimate that each year in Australia a minimum of eight to 10 people (whose appeal rights have been exhausted) would be granted a new appeal if Australia had the equivalent of a CCRC. Clearly few of this potentially large cohort have been able to access, let alone have been aided by, the ‘fresh and compelling’ provisions.
A person who may have been wrongly convicted is trapped in a legal maze, required to produce evidence that may be almost impossible to obtain from prison, while the court of appeal remains tantalisingly out of reach.
Second, it entrenches the impossible position of wrongfully convicted people. The wrongfully convicted person in jail now has grounds to challenge their conviction. However, because the person is in jail, accessing these grounds in practice is almost impossible. The ‘fresh and compelling’ provisions have mired wrongfully convicted prisoners in a ‘Catch 22’ trap. Unless the wrongfully convicted person is well supported by (pro bono) lawyers, experts, and ideally a committed journalist, his or her ability to access documents and other necessary resources from inside jail is more or less non-existent. This assumes that the wrongfully convicted person has the knowledge and personal attributes required to even contemplate challenging their wrongful conviction.
It is unfair for the state to arm itself with a new right based on ‘fresh and compelling evidence’ given all the policing and prosecution resources at its disposal, and to think that providing the same grounds to wrongfully convicted prisoners without any material support is a form of equitable treatment. A Criminal Cases (or Miscarriages of Justice) Review Commission is needed to redress this unconscionable imbalance.
Third, in our view and the view of many legal academics, while the concept of ‘fresh and compelling’ evidence makes sense as an appropriately high standard for a re-prosecution, it is not appropriate when a wrongfully convicted person simply asks ‘is my conviction safe?’
Furthermore, it is an inappropriate bar for some wrongfully convicted people to have to clear. The notion of ‘fresh’ evidence would not have assisted Lindy and Michael Chamberlain. Any fair reading of the findings of Justice Morling, who conducted the 1987 Royal Commission into their wrongful convictions, should lead to the conclusion that he was not dealing with ‘fresh’ evidence but with correction of the prosecution’s fallacious forensic evidence presented at the trial. It may not have assisted David Eastman and has not assisted Derek Bromley, among others. It is a similar barrier now facing Robert Farquharson in Victoria despite mounting indications that much of the circumstantial evidence – including forensic evidence – that resulted in his conviction was seriously flawed. The myriad circumstances of wrongful convictions means that ‘fresh and compelling’ does not capture the variety of ways in which a conviction may be concluded to be unsafe.
Stephen Cordner
Stephen Cordner AM is emeritus professor of forensic medicine at Monash University and was the founding director of the Victorian Institute of Forensic Medicine. He is co-author with Kerry Breen of Wrongful Convictions in Australia: Addressing issues in the criminal justice system (2023 and updated 2nd edition 2026).
Kerry Breen
Kerry Breen AO is a retired physician whose career spanned roles in clinical medicine, medical ethics, regulation of the medical profession and the health of doctors. His long-term interest in medical ethics is reflected in his 2018 publication, Memoir of an Accidental Ethicist.
How Common Are Miscarriages of Justice in Australia?
In this episode, Professor Stephen Cordner examines the prevalence of wrongful convictions in Australia, drawing critical parallels between evidence-based medicine and the criminal justice system. He highlights how forensic , such as those seen in the Kathleen Folbigg and Farah Jama cases, can lead to catastrophic legal errors. Professor Cordner argues that Australia’s current reliance on political intervention (via the A-G) for final appeals is insufficient and advocates for the establishment of an independent Miscarriage of Justice Review Commission, similar to the UK model.
The discussion further delves into the complexities of forensic science, including the controversial “triad” of symptoms associated with shaken baby syndrome and the risks of DNA contamination. By addressing systemic flaws, the importance of genetic screening, and the dangers of false confessions, the episode underscores the urgent need for a more rigorous, transparent, and evidence-based approach to justice to prevent (or reduce) future miscarriages of justice.
The problem of post-conviction review in Australia
Michele Ruyters and Jarryd Bartle
Conclusion to their paper
There is a pressing need for substantial reform to ensure a fairer and more accessible post-conviction review process and address systemic flaws contributing to wrongful convictions in Australia.
The crisis of legal aid funding must be recognised as a critical risk factor for miscarriages of justice when the lack of adequate funding for preparation impedes the capacity of defence lawyers to conduct a thorough defence.
Funding limits for preparation effectively confine the defence to the case disclosed by the prosecution, stifling independent investigations that might identify admissible and available evidence to support the defence case and the time needed to identify and address non-disclosure.
If Australia is serious about addressing the problem of wrongful convictions (Ed: It isn’t), then, legislatures should consider expanding the definition of fresh evidence or removing those requirements entirely, before debating the possibilities of a criminal cases review commission.
Fresh evidence requirements may create insurmountable hurdles for factually innocent appellants, particularly those who are legally aided. Legislatures should also consider incorporating more flexible criteria for ‘new’ evidence appeals in second right appeals regimes, like those in WA and Queensland, which are still to be tested. In other reforms, we suggest that ongoing inadequacies in police disclosure across Australia could be addressed through random, independent auditing of disclosure certificates and by mandating complete, itemised details of disclosed material to mitigate partial disclosure. There should also be mandatory, centralised digital storage of case files to assist in post-conviction review. Above all, however, the disastrous implications of inadequate legal aid funding must be conclusively addressed.
Michele Ruyters is a Professor and Jarryd Bartle is a Lecturer in the School of Global, Urban and Social Studies at RMIT University.