Miscarriages of Justice

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This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 292-311.

Introduction

[1] A miscarriage of justice is generally viewed as the wrongful conviction of an individual. It occurs in a trial where an accused loses the chance of being acquitted because the relevant law not being correctly explained to the jury and/or because the rules of procedure and evidence were not strictly followed.[2]

There have been several publicised miscarriages of justice both in Australia and overseas, including the Chamberlains case (the Dingo story, click here for a short summary), Andrew Mallard's case (see below and other examples (Colin Ross, John Button and Darryl Beamish). It should be recognised that there are a number of problems in relying on the appellate system as remedying any miscarriage of justice:

  • The road to the High Court is long, hard and expensive.
  • The three limbs of appeal set out in s 6 of the Criminal Appeal Act 1912 (NSW) heavily favour showing an error in law (eg in judge summing up etc.)
  • The High Court is reluctant to view fresh evidence.
  • Even if the formal ground of appeal is made out, the CCA may decide that ‘no substantial miscarriage of justice has occurred’ as per the proviso to s 6(1).

Characteristics of a Miscarriage of Justice

[3] Wilson identifies the following common elements usually present in a miscarriage of justice:

  • Police – overzealous or unprofessional behaviour, or even criminal behaviour.
  • Evidence – circumstantial, unreliable eyewitness evidence, etc.
  • Mass media – prejudice, pressure.
  • Trial processes – error in judge’s instructions, etc.
  • Misunderstanding of cultural factors

DNA Evidence

[4] DNA evidence is emerging and increasing in importance in relation to miscarriages of justice, yet poses both benefits and problems.

  • On one hand, it is a good identification mechanism, and can potentially resolve previous miscarriages of justice by showing a lack of a DNA match.
  • However, many people wrongfully perceive DNA as infallible, while in fact samples are often contaminated in the process of collecting and testing.
    • Presentation of DNA evidence to the jury can thus lead to unqualified belief in the result, potentially leading to even more miscarriages of justice.

Review of Convictions

[5] Under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), a request for review of a conviction or the exercise of the Governor’s pardoning power may be made to the Governor.[6]

  • The Governor (via a minister) may direct that the inquiry be conducted, or may refer case to CCA.[7]
  • The test whether to order inquiry is whether ‘the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction to stand’.[8]
  • The court has no power in relation to a conviction for a federal offence to order an inquiry but may refer the case to the Court of Criminal Appeal.
  • The report of the inquiry is sent to the Governor or Chief Justice or referred to the Court of Criminal Appeal (s 82).
    • The prerogative of mercy (pardon) can be exercised under s 84 and the procedure for such a quashing is set out in s 85.
  • One problem is the lack of a proper statutory system of compensation for miscarriages of justice and wrongful imprisonment.
    • Resolutions:
      • pursue civil remedies
      • apply for an ex gratia payment
      • try to persuade a local MP to introduce a private members compensation bill in individual cases
  • The Human Rights Act 2004 (ACT) s 23 provides a right to compensation if a person is convicted; suffers punishment; and the conviction is reversed, or they are pardoned "on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice".
  • Justice recommended the settling up of a new body, the Criminal Cases Review Authority, independent of the courts and the executive. Such a body would undertake further investigation into cases in which wrongful convictions are alleged.
  • One of the difficulties for applicants in gaining and succeeding in a referral to the Court of Criminal Appeal is that, unless police officers actually confessed of corrupting the process in specific cases, fresh evidence is often difficult to produce.

End

This is the end of this topic. Click here to go back to the main subject page for Crime & the Criminal Process.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 292-6.
  2. Mraz (1955) 93 CLR 493 (Fillagar J).
  3. P Wilson in K Carringotn et al, Travesty! Miscarriages of Justice (1991) in Textbook, pp. 296-7.
  4. Textbook, pp. 297-301.
  5. Textbook, pp. 302-5.
  6. Crimes (Appeal and Review) Act 2001 (NSW), s 76.
  7. Crimes (Appeal and Review) Act 2001 (NSW), s 77.
  8. Rendell (1987) 42 A Crim R243.
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