Miscarriages of Justice in Australia: A Brief Overview

Wednesday 26 April 2017 @ 1.33 p.m. | Crime | Legal Research

In every country there is some sort of miscarriage of justice that may be carried out in the criminal justice system. The amount of miscarriages of justice carried out in each country depends on many factors, including but not limited to:

  • how many cases are tried annually;
  • authenticity of forensic evidence;
  • tampering with evidence;
  • police corruption;
  • pressure from the media;
  • reliability of sources and witnesses; and
  • the victim's and perpetrator testimony. 

What is a 'Miscarriage of Justice'?

In Australia, under the criminal legal system, a miscarriage of justice circles around the concept of 'wrongful conviction'. According to a recent ANZSOC paper, it is where there is a "proven factual innocence or for which there is considerable doubt as to the guilt of the convicted parties".

According to The Conversation, in Australia, it is known that 1% of the cases carried out in a year, are falsely convicted. This can result in up to 330 cases across Australia in both District and Supreme Court offences annually where a potential miscarriage of justice has occurred. 

Why is Australia Behind Other Countries in Overturning Wrongful Convictions?

According to The Conversation, Australia is well behind other countries, such as the United States, where miscarriage of justice cases are regularly overturned or new investigations based on miscarriage of justice are conducted.

The USA has the Innocence Project, an organisation whose purpose is to "re-examin[e] DNA and other forensic evidence to exonerate those who have been wrongfully convicted of serious offences". In other countries, such as the United Kingdom, Norway and Canada, there are "criminal-case review commissions" to help those who may be falsely accused.

Recently, however, there have been moves towards reforms with New South Wales and Queensland having allowed those who have been convicted of serious offence to do DNA re-testing although the procedure can be arduous due to an application required to State authorities. There are also other obstacles in accessing evidence in Australia, especially considering that once the final appeal has been processed, DNA evidence is destroyed, meaning any chances can significantly decrease of exonerating a convicted person. 

Role of Forensic Psychologists

Forensic psychologists appear in court as "expert witnesses" and give professional advice on "psychological matters". They also integrate psychological theory and skills to understand the functions of the legal and criminal justice system. Forensic psychologists analyse many issues, such as the causes of the crime, the prevention and treatment of the criminal mind, psychological issues in the police force and the applications of forensic and "psychological evidence" to the matter in the court. Forensic psychology has an impact in court on the miscarriage of justice by providing evidence in regards to memory and eyewitness testimony especially, both of which have been proven to be leading causes, according to The Conversation, of miscarriages of justice.

Reform is needed in this area to prevent miscarriages of justice being a burden in the Australian legal system. According to Sydney Criminal Lawyers:

"A wrongful conviction can have quite severe impacts on an innocent person’s life, even if they are ultimately released from custody. The stigma and psychological effects often linger, particularly in the case of serious offences."

Therefore, not only should proper procedures should be in place for prevention, external to the system of pardons, but for those who think they are wrongfully convicted, they should have easy access to evidence review procedures.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.


Related Articles: