Miscarriages of Justice

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


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.


[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.


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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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