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A Repository of Wrongful Convictions in Australia: First Steps Toward Estimating Prevalence and Causal Contributing Factors

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While the occurrence of wrongful convictions is not contested today, the extent of the problem is debated and unknown. Over the last two decades, international scholars in the area, primarily from the United States and the United Kingdom, have focused efforts on identifying the causes of wrongful conviction and estimating a prevalence rate for the phenomenon through varied means. Less is known about the prevalence and causes of wrongful conviction in Australia. This article reviews the literature on estimating the prevalence of wrongful conviction in international contexts and identifies the challenges of extrapolating numbers from particular populations to determine this estimate. A complete listing of 71 identified and known wrongful convictions in Australia from 1922 to 2015 is provided and discussed in terms of potential causes of and contributing factors to wrongful conviction to serve as a basis for future studies and international comparisons. All causal and contributing factors to wrongful conviction that are established in the international literature are present in Australian cases, though the distributions vary from their international counterparts. Additional issues including erroneous judicial directions and the Indigenous ethnicity of the accused featured highly in the sample as causal or contributing factors of wrongful conviction in Australia.
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(2015) 17 Flinders Law Journal
A REPOSITORY OF WRONGFUL
CONVICTIONS IN AUSTRALIA: FIRST
STEPS TOWARD ESTIMATING
PREVALENCE AND CAUSAL
CONTRIBUTING FACTORS
RACHEL DIOSO-VILLA
While the occurrence of wrongful convictions is not contested today, the
extent of the problem is debated and unknown. Over the last two decades,
international scholars in the area, primarily from the United States and
the United Kingdom, have focused efforts on identifying the causes of
wrongful conviction and estimating a prevalence rate for the phenomenon
through varied means. Less is known about the prevalence and causes of
wrongful conviction in Australia. This article reviews the literature on
estimating the prevalence of wrongful conviction in international
contexts and identifies the challenges of extrapolating numbers from
particular populations to determine this estimate. A complete listing of
71 identified and known wrongful convictions in Australia from 1922 to
2015 is provided and discussed in terms of potential causes of and
contributing factors to wrongful conviction to serve as a basis for future
studies and international comparisons. All causal and contributing factors
to wrongful conviction that are established in the international literature
are present in Australian cases, though the distributions vary from their
international counterparts. Additional issues including erroneous judicial
directions and the Indigenous ethnicity of the accused featured highly in
the sample as causal or contributing factors of wrongful conviction in
Australia.
Lecturer in the School of Criminology and Criminal Justice and Griffith
Criminology Institute, Griffith University. Email: r.diosovilla@griffith.edu.au.
FLINDERS LAW JOURNAL [(2015
164
I INTRODUCTION
There is now little contestation that wrongful convictions can and do
occur in Australia.
1
This is especially so when state misconduct and
forensic error are exposed;
2
when the wrongfully convicted are
awarded monetary compensation by the state;
3
or when they win
lawsuits against state officials responsible for their wrongful
conviction.
4
However, the extent of the problem is unknown in
Australia. Part of the difficulty in estimating its prevalence lies in the
fact that no biological evidence is systematically collected or retained
for subsequent post-conviction retesting that can be instrumental in
demonstrating innocence.
5
In light of this, research over the last two
1
See generally Edwin M Borchard, ‘European Systems of State Indemnity for
Errors of Criminal Justice’ (1913) 3(5) Journal of the American Institute of
Criminal Law and Criminology 684; Edwin M Borchard, Convicting the
Innocent: Errors of Criminal Justice (Yale University Press, 1932) for discussion
of wrongful conviction as a contested phenomenon. See generally Lynne
Weathered, ‘Wrongful Conviction in Australia’ (2012) 80(4) University of
Cincinnati Law Review 1391 for discussion of wrongful conviction in Australia.
2
See, eg, Farah Jama’s conviction involved the mishandling of forensic DNA
evidence: Victoria, Inquiry into the Circumstances That Led to the Conviction of
Mr Farah Abdulkadir Jama, Report (2010); or the Andrew Mallard case that
exposed police misconduct during the investigation: Corruption and Crime
Commission, Report on the Inquiry into Alleged Misconduct by Public Officers
in Connection with the Investigation of the Murder of Mrs Pamela Lawrence, the
Prosecution and Appeals of Mr Andrew Mark Mallard, and Other Related
Matters (Corruption and Crime Commission, 2008).
3
See, eg, Lindy Chamberlain received an ex gratia payment of $1.3 million: Chips
Mackinolty and Malcolm Brown, ‘NT Government Awards Chamberlains a
Payment of $1.3m’, Sydney Morning Herald, 26 May 1992, 10. See generally
Rachel Dioso-Villa, ‘Without Legal Obligation: Compensating the Wrongfully
Convicted in Australia’ (2012) 75(3) Albany Law Review 101 for a discussion on
compensation for wrongful conviction in Australia.
4
See, eg, Roseanne Catt Beckett was awarded $4 million in damages for 10 years
of wrongful imprisonment: ‘NSW drops $4m malicious prosecution battle
against Roseanne Beckett’, The Guardian (online), 23 November 2015
<http://www.theguardian.com/australia-news/2015/nov/23/nsw-drops-4m-mali
cious-prosecution-battle-against-roseanne-beckett>.
5
As Gross and O’Brien state, ‘there is no systematic way to identify false
convictions in retrospect … There is no general test that can be applied after the
fact to confirm or disprove the guilt of convicted criminal defendants’. See
Samuel R Gross and Barbara O'Brien, ‘Frequency and Predictors of False
Conviction: Why We Know So Little, and New Data on Capital Cases’ (2008) 5
Journal of Empirical Legal Studies 927, 929.
17 FLJ 163] RACHEL DIOSO-VILLA
165
decades has measured the extent of wrongful convictions within
specific populations
6
or matched comparison samples of convicted or
executed offenders to groups of known exonerees.
7
The additional
difficulty lies in the fact that there are few clear-cut cases (except, for
example, in the case of DNA exonerations) that irrefutably
demonstrate innocence and that these cases represent but a fraction of
the types of cases and convictions that come before the courts. As a
result, low level, non-serious crimes are not captured in estimates, as
actual innocence is difficult to prove when there is no biological
evidence produced for re-testing. Moreover, most of these studies are
based on American populations, though there are attempts at estimates
in other parts of the world.
8
This article offers a repository of wrongful convictions in Australia
as a first step toward estimating prevalence rates and identifying causal
and contributing factors that may lead to wrongful conviction in
Australia. In Part II of this article, the causes of wrongful conviction
as established in the American literature are briefly discussed followed
by a review of the international research that estimates the prevalence
of wrongful convictions in different populations (including indirect
measures of surveys and estimates based on extrapolations from
exonerations or selective samples). In Part III, the article examines
what is known about wrongful conviction in Australia and reviews the
limited research on its prevalence and causes. Part IV introduces the
collection of cases for the repository of wrongful convictions in
Australia and outlines the parameters of its collection. The full listing
6
As will be discussed in Part II, specific populations including death penalty
eligible cases such as: Michael Risinger, ‘Innocents Convicted: An Empirically
Justified Factual Wrongful Conviction Rate’ (2007) 97 Journal of Criminal Law
and Criminology 761; serious felonies such as sexual assault or sexual homicide
such as Tony G Poveda, ‘Research Note: Estimating Wrongful Convictions’
(2001) 18 Justice Quarterly 689.
7
Also discussed in Part II, for comparison match population studies see, eg,
Poveda, above n 6; Gross and O'Brien, above n 5; Risinger, above n 6.
8
For example, the English Criminal Cases Review Commission (CCRC) was
established by the Criminal Appeal Act 1995 (UK) c 35 and began operation in
1997. They refer cases to the Court of Appeal, which may result in the quashing
of convictions if it finds it unsafe or unsatisfactory. Rates of quashed convictions
generated based on these cases include factual innocence as well as legally
innocent defendants.
FLINDERS LAW JOURNAL [(2015
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of known and established wrongful convictions from 1922 to 2015 and
case details are provided in Table 1 at the end of this article. In Part V,
the causes and contributing factors of wrongful conviction in Australia
are discussed based on the findings from the aggregate data from the
repository. The article concludes by offering that the Australian
repository of known wrongful convictions can potentially serve in
future match comparison studies to estimate the prevalence of
wrongful conviction in Australia and for retrospective research to
identify and better understand the events, actors and activities that may
lead to wrongful conviction.
II ESTIMATING THE PREVALENCE OF
WRONGFUL CONVICTION
The term “wrongful conviction” is used to refer to factual innocence,
where the individual did not commit the act in question or that the act
or crime did not occur in the first place. This is distinguished from
other miscarriages of justice where the individual 1) committed the
act(s), but was not found culpable for actions (for example, due to
defenses of insanity or battered woman syndrome); 2) committed the
act(s) and was culpable for actions, but where the court erred by
dismissing procedural errors as harmless error; and 3) a miscarriage of
justice in which the police could not detect the true perpetrator or the
courts have acquitted individuals who are guilty and culpable of
committing the crime.
9
For the purposes of this article, “wrongful
convictions” refer to cases of factual innocence, rather than erroneous
convictions due to lack of culpability or procedural errors.
Even when cases are restricted to factual innocence, where the
individual did not commit the crime, it is exceedingly difficult to
measure the prevalence of wrongful conviction in the justice system.
For the most part, there is no systematic check or collection of cases
in which the authenticity of the convictions are reviewed.
10
Certainly
9
See Risinger, above n 6.
10
See generally Samuel R Gross, ‘How Many False Convictions Are There? How
Many Exonerations Are There?’ in C Ronald Huff and Martin Killias (eds),
17 FLJ 163] RACHEL DIOSO-VILLA
167
the appellate process and subsequent post-conviction reviews are
included as safeguards built into the system, but they are limited in
application and are arguably not conducive to proving innocence.
11
Therefore, known and identified wrongful convictions represent but a
fraction of possible cases of factual innocence that remain undetected
and uncorrected in the justice system. Despite this, American scholars
have grappled with the challenge of estimating the prevalence of
wrongful convictions by using social science methodologies and
different data sources as the basis for their calculations, which have
produced varied results, as will be discussed in detail below.
Perhaps this is why the majority of early research on wrongful
conviction has focused on determining its potential causes by
investigating the circumstances surrounding known exonerations.
12
The majority of early research using these datasets has identified a
selection of factors that are correlated with or can lead to wrongful
convictions including: false confessions, inaccurate eyewitness
testimony, invalid or misleading forensic evidence, inaccurate or
deceptive informant testimony, prosecutorial or police misconduct,
inadequate defence counsel, police or prosecutorial tunnel vision, and
the race and ethnicity of the individual.
13
These events or factors tend
Wrongful Convictions and Miscarriages of Justice: Causes and Remedies in
North American and European Criminal Justice Systems (Routledge, 2013).
11
See Bibi Sangha and Robert Moles, ‘Mercy or Right? Post-Appeal Petitions in
Australia’ (2012) 14 Flinders Law Journal 293; Bibi Sangha and Robert Moles,
‘Post-Appeal Review Rights: Australia, Britain and Canada’ (2012) 36 Criminal
Law Journal 300.
12
The earliest work investigating the causes of wrongful conviction started with
work by Hugo A Bedau and Michael L Radelet, ‘Miscarriages of Justice in
Potentially Capital Cases’ (1987) 40 Stanford Law Review 21. This has continued
through to Talia Roitberg Harmon, ‘Predictors of Miscarriages of Justice in
Capital Cases’ (2001) 18 Justice Quarterly 949; Brandon L Garrett, ‘Judging
Innocence’ (2008) 55 Columbia Law Review 121.
13
See Jon B Gould and Richard A Leo, ‘One-Hundred Years of Getting It Wrong?
Wrongful Convictions after a Century of Research’ (2010) 100(3) Journal of
Criminal Law and Criminology 825; Garrett, above n 12; Bedau and Radelet,
above n 12; Harmon, above n 12; Maeve Olney and Scott Bonn, ‘An Exploratory
Study of the Legal and Non-Legal Factors Associated with Exoneration for
Wrongful Conviction: The Power of DNA Evidence’ (2014) 26 Criminal Justice
Policy Review 400. On the changing use of DNA and trends in DNA
exonerations, see Greg Hampikian, Emily West, and Olga Akselrod, ‘The
FLINDERS LAW JOURNAL [(2015
168
not to occur in isolation, and one or more factors are typically present
in a given wrongful conviction.
14
The factors also do not appear to be
unique to the American experience, as several Australian legal
scholars and researchers have also identified the presence of these
same factors in specific case studies of known wrongful convictions
in Australia.
15
As a starting point, in Part V this article examines the
repository of cases listed in Table 1 (located at the end of this article)
to identify common causes and correlates of wrongful conviction in
Australia.
A Surveys of Criminal Justice Personnel
American surveys of criminal justice personnel including police
officers, prosecutors/crown attorneys, defence attorneys and judges
estimate the incidence of wrongful conviction as between 0.5 percent
to 3 percent of serious felony convictions.
16
As personal opinions,
these qualitative estimates
17
are subject to contextual factors that may
directly and indirectly impact the respondent’s perception of the
problem. In fact, the earliest survey of police officers, crown attorneys
and defence attorneys conducted in the 1980’s by Huff and colleagues
reported 0.5 percent, which was the lowest level of perceived
incidence of wrongful conviction in America for serious felony
Genetics of Innocence: Analysis of 194 US DNA Exonerations’ (2011) 12
Annual Review of Genomics and Human Genetics 2011, 97.
14
On the interaction of causes, see Brandon L Garrett, Convicting the Innocent:
Where Criminal Prosecutions Go Wrong (Harvard University Press, 2011).
15
See Weathered, above n 1; Paul R Wilson, ‘When Justice Fails: A Preliminary
Examination of Serious Criminal Cases in Australia’ (1989) 24 Australian
Journal of Social Issues 3; Juliette Langdon and Paul R Wilson, ‘When Justice
Fails: A Follow-up Examination of Serious Criminal Cases since 1985’ (2005)
17 Current Issues in Criminal Justice 1.
16
See Marvin Zalman, ‘Qualitatively Estimating the Incidence of Wrongful
Convictions’ (2012) 48 Criminal Law Bulletin 221; Robert J Ramsay and James
Frank, ‘Perceptions of Criminal Justice Professionals Regarding the Frequency
of Wrongful Conviction and the Extent of System Errors’ (2007) 53 Crime and
Delinquency 436; C Ronald Huff et al , ‘Guilty until Proven Innocent: Wrongful
Conviction and Public Policy’ (1986) 32 Crime and Delinquency 518; Marvin
Zalman, Brad Smith, and Angie Kiger, ‘Officials’ Estimates of the Incidence of
‘Actual Innocence’ Convictions’ (2008) 25 Justice Quarterly 72.
17
See Zalman, ‘Qualitatively Estimating the Incidence of Wrongful Convictions’,
above n 16.
17 FLJ 163] RACHEL DIOSO-VILLA
169
offences.
18
Twenty years later, in subsequent studies, this rate
increased to between 1 percent and 3 percent in similar surveys of
criminal justice personnel.
19
The rates do not reflect the actual
changing incidence of wrongful convictions in the justice system,
since respondents would have received no information on this; rather,
they are reflections of legal actors’ perceptions of the problem at the
time of the survey. As such, this can reflect their own personal bias
depending on their perceived role or involvement in potential
wrongful convictions in the criminal justice system.
20
For example, in
all three studies, defence counsel estimated the highest rates of
wrongful conviction compared to judges, prosecutors/crown counsel
and police, while prosecutors/crown counsel and police estimated the
lowest rates in the samples.
21
This is not necessarily surprising, since
defence counsel may not view their role in wrongful convictions as a
substantial one: rather, they may see it as the result of a flawed or weak
case put forward by the prosecution. Similarly, in two surveys by
Frank and Ramsay, and Zalman and colleagues, respondents on the
whole tended to believe that there were lower rates of wrongful
convictions in their own jurisdictions compared to the rest of the
country.
22
B Matched Comparison Studies
What we know about wrongful convictions is more or less taken from
the retrospective analysis of erroneous cases identified after
conviction and corrected through an official legal process such as a
subsequent acquittal, dismissal of charges or the innocent person
receiving a pardon by a state official. Recent research has compared
known exoneration cases or cases where there is doubt about the
offender’s guilt to matched cases where the individuals were presumed
innocent, but not exonerated
23
and/or matched to presumed rightful
18
See Huff et al, above n 16.
19
See Ramsay and Frank, above n 16; Zalman, Smith, and Kiger, above n 16.
20
See generally Gross, above n 10.
21
See Zalman, above n 16; Ramsay and Frank, above n 16; Huff et al, above n 16.
22
See Zalman, Smith, and Kiger, above n 16; Ramsay and Frank, above n 16.
23
See Bedau and Radelet, above n 12; Talia Roitberg Harmon and William S
Lofquist, ‘Too Late for Luck: A Comparison of Post-Furman Exonerations and
Executions of the Innocent’ (2005) 51 Crime and Delinquency 498.
FLINDERS LAW JOURNAL [(2015
170
convictions.
24
Such comparisons have identified specific case factors
that can predict the detection of wrongful conviction and lead to the
correction of these errors that can be particular to the population
examined in the study.
25
For example, Harmon compared a sample of
76 death row inmates between 1970 and 1998 where there were doubts
about their guilt with a matched sample of executed inmates to identify
predictors that influenced the likelihood of inmates’ release from death
row as opposed to execution.
26
The discovery of new evidence and
allegations of perjury were statistically significantly related to
reversals on appeal and a release from death row. Conversely, as types
of evidence against the defendant increased, the chances of a reversal
or release from death row post-conviction decreased. In a follow up
study, Harmon and Lofquist looked at 97 cases of exonerations
compared to executions and found similar results with regards to
allegations of perjury and the presence of multiple types of evidence
affecting appeal outcomes.
27
In addition, they found that police
misconduct during the investigation or trial increased the likelihood of
a reversal and release from death row at a statistically significant level,
as did obtaining private defence counsel (compared to public
defenders or court-appointed counsel). If the convicted person had a
criminal record of felony offences, they were less likely to be released
than those that had no prior felony record. By making comparisons
between individuals believed to be innocent who were either
exonerated or executed, we can better understand what factors are
unique to wrongful convictions that may have led to the convictions
in the first place, along with those factors that may lead to its detection
and correction post-conviction.
Matched comparison studies also provide the opportunity to
determine the actual proportion of exonerations among specific
populations and the possible extrapolation of estimates in these subsets
of known cases. For example, Poveda found that exonerations
24
See Garrett, above n 12; Samuel R Gross, ‘Convicting the Innocent’ (2008) 4
Annual Review of Law and Social Science 173.
25
For example, the use of measures of the release from death row rather than the
release from prison as a measure of factual innocence: see Harmon, above n 12;
Harmon and Lofquist, above n 23. For a discussion of this limitation: see Gould
and Leo, above n 13, 860.
26
See Harmon, above n 12.
27
See Harmon and Lofquist, above n 23.
17 FLJ 163] RACHEL DIOSO-VILLA
171
represented 1.4 percent of murder sentences in New York;
28
Gross and
O’Brien reported that they represented 2.3 percent of death row
sentences (from 1973 to 1989);
29
and Risinger calculated estimates
between 3.3 percent to 5 percent when comparing exonerees to capital
rape-murder cases (from 1982 to 1989).
30
These estimates do not
capture all wrongful convictions, since they are based on exonerations,
typically DNA exonerations. Moreover, they miss individuals released
from death row without exoneration, but who are innocent.
Gould and colleagues looked at violent felony offences after 1980
and compared wrongfully convicted individuals to “near misses”, or
individuals who were arrested, indicted and/or prosecuted, but the
defendant was either dismissed prior to trial or acquitted at trial due to
factual innocence.
31
By comparing known exonerations to near
misses, the researchers were able to identify factors that increased the
likelihood of a wrongful conviction, rather than factors that led only
to the mistaken arrest, indictment or prosecution of an innocent
person.
32
In effect, they capture what it is that led to the correct
outcome, despite similar circumstances in wrongful conviction cases.
They found that certain factors were statistically significantly more
likely to lead to a wrongful conviction than others, such as a strong
death penalty culture in the jurisdiction; if the defendant had a criminal
history; if there were errors in forensic testimony by the
prosecution/crown; if the prosecution withheld evidence; or the
defendant had family and friends testify as witnesses at trial. The
likelihood of erroneous conviction was statistically significantly
decreased if the defendants were older; there were intentional
misidentifications or false testimony by witnesses; and if the
prosecution/crown and defence had strong cases. These identified
28
See Poveda, above n 6.
29
See Gross and O'Brien, above n 5, 948.
30
See Risinger, above n 6.
31
See Jon B Gould et al, Predicting Erroneous Convictions: A Social Science
Approach to Miscarriages of Justice (US Department of Justice, 2013); Jon B
Gould et al, ‘Innocent Defendants: Divergent Case Outcomes and What They
Teach Us’ in Marvin Zalman and Julia Carrano (eds), Wrongful Conviction and
Criminal Justice Reform: Making Justice (Routlege, 2014).
32
See Gould et al, ‘Innocent Defendants: Divergent Case Outcomes and What They
Teach Us’, above n 31, 78-9.
FLINDERS LAW JOURNAL [(2015
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factors arguably affect the investigation and prosecution of a crime
that can influence the likelihood of a wrongful conviction. They
illustrate the complex breakdown that can occur in the criminal justice
system in wrongful convictions that may go unnoticed and
uncorrected. In comparison, near misses illustrate how and when
errors are detected and corrected within the system before they
escalate into a possible wrongful conviction. The authors argue for a
focus on preventing future errors as well as figuring out means of
effectively de-escalating tunnel vision propagated by errors, so that the
system can correct itself before it results in a wrongful conviction.
Taken together, the research on matched samples can provide
information on actual prevalence rates of exonerations in a small
subset of cases where the parameters are known about the population
of cases. It can also extend the research on the causal factors of
wrongful conviction to determine the unique set of factors that may
lead to a wrongful conviction and the correction of a wrongful
conviction. Though this research is still limited in its generalisability,
it demonstrates a developing understanding and commitment to the
study of wrongful convictions as a social problem worthy of
investigation.
C Testing for Innocence
It is conceivable to estimate the proportion of wrongful convictions in
the population by taking a random sample of convictions and
reviewing these cases retrospectively for evidence of innocence. With
the advent of forensic DNA testing, it is possible to do so by selecting
cases with biological evidence that occurred before the use of forensic
DNA testing and then testing these samples to potentially eliminate
the convicted person as a contributor of the sample. The National
Institute of Justice funded such a project where the Virginia
Department of Forensic Sciences estimated the rate of possible
wrongful convictions in serious and personal crimes of homicide and
sexual assault by conducting retrospective forensic DNA tests of the
17 FLJ 163] RACHEL DIOSO-VILLA
173
physical evidence retained on file.
33
They selected a representative
sample of rape and homicide cases from 1973 to 1987, before forensic
DNA testing was possible, and found that the convicted offender could
be eliminated as a contributor of the probative evidence in 8 percent
of homicides and sexual assaults and that in 5 percent of convictions
the DNA elimination was supportive of exoneration.
These findings should be interpreted with some caution: as the
authors note, due to the quality of the samples retained for retesting,
only a small fraction of homicide convictions produced a determinate
finding (8 percent of the total sample), and about half of the sexual
assault cases resulted in a determinate finding (54 percent of the total
sample).
34
Also, in cases of sexual assault, biological specimens are
not always collected (eg. in cases of hearsay where the act of
intercourse is not in question), retained or retested.
35
Therefore, the
sample used in the study is not necessarily representative of all sexual
assaults and homicides. More accurately, the 5-8 percent prevalence
rate for homicides and sexual assaults reflects cases where biological
specimens were collected, retained and were available for re-testing
after a significant portion of time had lapsed since the sample’s
collection.
III WHAT IS KNOWN ABOUT WRONGFUL
CONVICTION IN AUSTRALIA?
There is little empirical research on the prevalence or causes of
wrongful conviction in Australia relative to other international
jurisdictions.
36
Rather, Australian legal scholars and researchers have
referenced the international literature to argue that causes and
33
See John Roman et al, Post-Conviction DNA Testing and Wrongful Conviction
(Urban Institute Justice Policy Center, 2012).
34
Ibid 4.
35
For this critique, see Gross, above n 10, 12-3.
36
With the exception of Wilson, above n 15 and Langdon and Wilson, above n15,
the majority of the research on wrongful convictions in Australia is based on case
studies with no analysis of aggregate data or subsets of cases.
FLINDERS LAW JOURNAL [(2015
174
prevalence rates may well be similar to those in Australia
37
and have
focused their efforts on legal changes to admissibility standards and
appeal and post-appeal review procedures to prevent current and
future occurrences.
38
Part of the problem that may account for this lack
of research is that there is no information on wrongful convictions that
is systematically collected, reviewed or retained in Australia.
39
This
lack of publicly available data makes it extremely difficult to
extrapolate a prevalence rate for wrongful conviction in any given
jurisdiction, or to look at aggregate data to determine possible causal
factors or correlates related to wrongful conviction in Australian cases.
In the face of these limitations, there are a few avenues of
exploration. For one, the Supreme Court Director of Public
Prosecution produces annual reports on criminal convictions, which
may or may not include information about criminal appeals against
convictions. When criminal appeals are reported, the numbers of
appeals that come before appellate courts in a given year are recorded;
however, this may not include the case outcomes nor any indication of
how many appeals resulted in retrials or acquittals. Also, since the data
is aggregated annually by jurisdiction, there is the added difficulty of
distinguishing appeals based on procedural error and those based on
factual innocence. There are no details provided in the reports that can
assist with this distinction. These limitations prevent any
extrapolations of the data that could lead to the estimation of the
incidence of wrongful conviction within each jurisdiction.
37
Weathered, above n 1; David Hamer, ‘Wrongful Convictions, Appeals, and the
Finality Principle: The Need for a Criminal Cases Review Commission’ (2014)
37 University of NSW Law Journal 270.
38
See David Caruso, ‘Return of the Wrongly Convicted: The Test for Post-
Conviction Executive References in Australia’ (2012) 57 Studies in Law,
Politics, and Society 125; Sangha and Moles, ‘Post-Appeal Petitions in
Australia’, above n 11; Hamer, above n 37; Gary Edmond, ‘The Science of
Miscarriages of Justice’ (2014) 37 University of New South Wales Law Journal
376.
39
See Hamer, above n 37; Dioso-Villa, above n 3.
17 FLJ 163] RACHEL DIOSO-VILLA
175
In the recent monograph, Conviction Appeals in New South
Wales,
40
the Judicial Commission of New South Wales examined the
outcomes of over 300 cases where the High Court or the Court of
Criminal Appeal ordered retrials from 2001 to 2007. In their analyses
of the grounds of appeal, they coded for grounds based on:
admissibility errors, misdirections, other wrong decisions of law, and
acts or omissions which resulted in a miscarriage of justice’.
41
For this
period, they found that 35.3 percent of successful conviction appeal
cases could be classified as miscarriages of justice (333 out of 937
cases). This high rate of successful conviction appeals may be due to
the way in which they define what are miscarriages of justice. That is,
they use a broad definition that includes factual innocence cases that
are not distinguishable from legal errors (or failures in the judicial
process that require a fair trial by law).
42
Specifically, in this report, the miscarriage of justice cases included
acts or omissions related to the discovery of fresh evidence, issues
around the conduct of the Crown, defence or judge at trial, issues with
juries, procedural irregularities at trial, and withdrawals of the guilty
plea.
43
It comprised 15 percent of the sample when the data is isolated
according to fresh evidence cases where innocence may be best
demonstrated.
44
However, we cannot interpret this as the rate of
wrongful convictions given the uncertainty as to whether the
appellants were factually innocent or whether they were acquitted,
retried, or had their convictions quashed on appeal.
Another means of attempting to generate an estimate of the
prevalence of wrongful conviction in Australia is to look to established
international research in other jurisdictions and apply it to Australian
conviction rates. Hamer applies Risinger’s published 3 percent rate of
40
See Hugh Donnelly, Rowena Johns and Patrizia Poletti, Conviction Appeals in
NSW (Judicial Commission of NSW, 2011).
41
Ibid xi.
42
Ibid 143.
43
Ibid 146, Table 9.2.
44
Of the 73 cases, 11 allowable appeals were based on the discovery of fresh
evidence, where the evidence was absent at trial (with the exclusion of cases
based on the appellant’s fitness to stand trial): see Ibid.
FLINDERS LAW JOURNAL [(2015
176
wrongful convictions for rape and homicide cases to the Australian
Bureau of Statistics 2011/12 total number of convictions (12,158) and
states that, in Australia, we would expect about 350 convictions a year
to be factually wrong or left uncorrected by appeal’.
45
Though he
acknowledges this number and rate may vary depending on factors
specific to Australia,
46
he argues, ‘it appears doubtful that the figure
for Australia would be lower by orders of magnitude’.
47
This
reinforces the notion that wrongful convictions are a problem in
Australia, perhaps comparable to that of its international counterparts,
but what we know about its occurrence and prevalence in the
population is limited. Any further extrapolation from these reports
may not be possible without identifying the set of cases that they
represent to serve as the basis of subsequent analysis and testing.
The collection of all known wrongful conviction cases in Australia
may be the next area of research that may serve to address this
limitation and move us one step closer to generating a wrongful
conviction rate. Such a repository of cases can serve as a basis for
matched comparison studies and the development of actual rates of
exoneration, as it has served as the basis of comparison studies in the
United States.
48
To date, there are only a few examples in which
researchers have identified such a collection of cases. Wilson’s work
from 1989 and his follow-up study with Langdon in 2005 identified
42 official and possible miscarriages of justice or factual innocence
for convictions of murder, manslaughter, attempted murder and other
serious offences including sexual assault.
49
The website Networked
Knowledge, serving as a resource on wrongful convictions in
Australia, also includes a listing of 32 official and possible wrongful
conviction cases in Australia with overlap from Wilson and Langdon’s
studies.
50
Finally, earlier work by the author identified 57 cases of
known wrongful convictions from 1957 to 2011 in Australia that
45
See Hamer, above n 37, 276.
46
For a discussion of these differences, see Ibid 278-9.
47
See Ibid 277.
48
See discussion in Part II for further details.
49
See Wilson, above n 15; Langdon and Wilson, above n 15.
50
See, eg, Bibi Sangha and Bob Moles, Networked Knowledge Miscarriages of
Justice (2014) <http://netk.net.au/researchprojectshome.asp>.
17 FLJ 163] RACHEL DIOSO-VILLA
177
added new cases to existing listings.
51
This repository is listed, updated
and discussed below in the following section.
IV REPOSITORY OF WRONGFUL
CONVICTIONS IN AUSTRALIA
In 2012, the author published a listing of 57 cases of wrongful
convictions in Australia in an examination of state compensation
outcomes for miscarriages of justice.
52
This listing has been updated
to include cases of known wrongful convictions occurring in Australia
between 1922 and 2015 and is reproduced in Table 1 at the end of this
article. The inclusion criteria were broadly set to capture cases of
wrongful convictions where there was the greatest likelihood that the
convicted individuals were factually innocent, or at the very least, in
cases where factual innocence was in question, there were significant
concerns about their guilt and the safety of the original conviction.
This was done in order to draw comparisons with U.S. findings that
tend to follow a strict factual-innocence criterion. However, this strict
definition will have its limitations of excluding wrongful convictions
that a court or state body has not officially acquitted or pardoned the
individual for the convicted offence, but where individual has not
committed the offence or where a clear miscarriage of justice has
occurred. Individuals listed in the repository have had their sentences:
1) quashed on appeal without retrial or an acquittal entered (labeled
“Quashed” in Status column of Table 1); 2) quashed and an acquittal
entered on appeal (“Quashed, Acquittal entered”); 3) quashed on
appeal and were acquitted at retrial (“Quashed, Acquitted at retrial”);
4) the charges were withdrawn after conviction (“DPP withdrew
charges”); or the individual received an official pardon from the
Attorney-General or Governor, which does not necessarily accompany
an appeal or retrial (“Pardoned”).
53
Given that attention was paid to
51
See Dioso-Villa, above n 3.
52
See Ibid.
53
Note the inclusion of Rupert Max Stuart is based on widespread belief of factual
innocence, despite no official record of exoneration: see Michael Kirby, ‘Black
and White Lessons for the Australian Judiciary’ (2002) 23(2) Adelaide Law
Review 195.
FLINDERS LAW JOURNAL [(2015
178
restrict cases as best as possible to factual innocence or the non-
committal of the act in question to draw international comparisons
with U.S findings, two cases were removed from the original 2012
listing, despite the fact that in both instances, the convictions were
quashed on appeal.
54
It is important to note that these cases are
considered miscarriages of justice for any time spent in prison that is
unjust and unwarranted and it is a clear limitation of applying a strict
factual innocence criterion.
55
The cases were located through secondary sources including
academic papers published in criminology and law journals,
newspaper articles, books on specific cases, and innocence project and
wrongful conviction websites that identified official and potential
wrongful convictions in Australia.
56
The aim of the repository was to
capture official cases of wrongful conviction where there is the
greatest likelihood that the convicted person did not commit the crime
or act in question. Primary sources including law judgments taken
from legal databases and Hansard reports were also used to identify
and verify the status of identified potential wrongful convictions. After
the publication of the original listing of cases in 2012, the author
received suggestions for the inclusion of additional cases from legal
academics working on wrongful conviction, lawyers and other
exonerees. These new cases were researched and verified as to
whether they met the criteria for inclusion in the repository. The cases
54
The High Court of Australia ruled that Diane Fingelton should not have been
charged and convicted with the offence due to legal immunity from prosecution
under the Magistrates Act and Queensland Criminal Code: see Fingleton v R
[2005] 216 ALR 474; The Queensland Court of Appeal set aside Robyn Bella
Kina’s conviction for killing her husband due to the battered women’s syndrome
defence and a misunderstanding of communication with her lawyers based on
her Aboriginality: see R v Kina (Unreported, Queensland Court of Appeal,
Fitzgerald P, Davies and McPherson JJA, 29 November 1993).
55
The aim of restricting the sample to factual innocence cases was to conform to
U.S.-based criterion to allow for international comparisons. However, as discussed
by Parkes and Cunliffe (2015) and Roach (in this issue), this factual innocence
paradigm is underinclusive and will not capture guilty pleas with valid defences or
guilty pleas of innocent individuals; see Debra Parkes and Emma Cunliffe, “Women
and Wrongful Convictions: Concepts and Challenges” (2015) 11 International
Journal of Law in Context 219. This limitation needs to be kept in mind.
56
Refer to methodology in, Dioso-Villa, above n 3.
17 FLJ 163] RACHEL DIOSO-VILLA
179
were then extensively reviewed by the author as well as trained
researchers assisting with the collection of materials and coding of
cases about the nature of the contributing factors that may have led to
the wrongful conviction.
The repository includes 71 wrongful convictions across Australia
occurring between 1922 and 2015 (see Table 1 at the end of this
article). Cases from New South Wales comprised approximately one-
third of the sample (29.6 percent), followed by Western Australia
(25.4 percent), Victoria (19.7 percent), Queensland (15.5 percent),
South Australia (5.6 percent), Northern Territory (2.4 percent), ACT
(1.4 percent) and there were no cases found in Tasmania (0 percent) at
the time of the collection. Because the cases were identified through
secondary sources on wrongful conviction, the types of crimes in the
sample were not restricted to violent and serious offences, as is
typically the case for this type of research.
57
Rather, they represented
a range of crimes from serious, violent offences to non-serious
offences. Over half of the sample included convictions for serious
violent offences including murder, rape and rape homicides (55
percent), while the remainder of the sample included serious offences
such as manslaughter, attempted murder and aggravated assault
causing grievous bodily harm (17 percent), non-violent offences such
as fraud and drug related offences (11 percent) and other non-serious
offences such as threats of unlawful violence, accessory after the fact,
and theft (17 percent).
The sentences for the crimes ranged from a minimum of a non-
custodial sentence (or a deferred sentence) to a maximum of life
imprisonment and death. Approximately one-quarter of the sample
received a sentence of life imprisonment or death for their convicted
crimes. The remaining three-quarters of the sample received an
average sentence length of 9.5 years for their convicted crimes. None
of the individuals in the sample served their full sentences in their
entirety before being released. They spent an average of 4.5 years in
prison with incarcerated time ranging from 2.5 months in prison to 19
years before their release. Men comprised the majority of wrongfully
57
See section on matched comparisons in Part II above.
FLINDERS LAW JOURNAL [(2015
180
convicted individuals in the sample (87 percent), while women
comprised the remainder (13 percent or 9 women). Indigenous
wrongfully convicted individuals comprised 15 percent of the sample.
This repository does not represent the total number of wrongful
convictions in Australia from which we can or should necessarily
extrapolate a national prevalence rate. From the outset, it is limited by
the fact that no jurisdiction in Australia systematically records or
collects potential or official cases of wrongful conviction.
Consequently, researchers are limited to cases that have garnered some
media attention that have exposed potential or official wrongful
conviction in the first place.
58
Therefore, it is arguable that the sample
of cases may disproportionately represent cases deemed news or
media worthy, such as serious and/or violent offences and cases where
there is evidence of gross state or police misconduct or other major
procedural infractions (such as forensic error or the exposure of false
witness testimony).
Despite the common quality that the cases are news or media
worthy, there is little else that is common or representative of the
cases. That is, unlike matched comparison studies conducted in the
United States that devised estimates on the actual proportion of
exonerations for specific crimes (eg. murder sentences), within
particular jurisdictions (eg. New York), over a specified or limited
time period, this cannot easily be done with the current repository of
Australian cases. The cases in the sample include a variety of crimes,
across all states and territories, and occur over a broad time period.
However, this should not be interpreted as an impasse, as there may
be other factors from which to draw matched comparison samples;
moreover, the repository could serve as starting point for a systematic
review of appellate decisions in which the convictions have been
quashed, quashed and acquitted, or the convicted person has been
acquitted at retrial. Or, one could attempt to match cases from the
existing repository to either a random selection of the same types of
cases that span the same time period and jurisdiction where the
58
For a description of a similar methodology, see Langdon and Wilson, above n
15; Wilson, above n 15.
17 FLJ 163] RACHEL DIOSO-VILLA
181
defendant is likely guilty (correct conviction) or where doubt is
seriously cast on the guilt of the defendant, though no correction was
made on appeal. This would be resource-intensive and time
consuming to test for factual innocence or to expand this to more
representative cases in all jurisdictions, though it would likely be the
best chance at producing prevalence estimates for Australia.
59
V CAUSAL AND CONTRIBUTING FACTORS
OF WRONGFUL CONVICTIONS IN AUSTRALIA
The cases in the repository were coded for the presence of causal or
contributing factors that are believed to lead to wrongful conviction as
identified and established in the international literature (see Figure 1
below, and listed as “Causal and Contributing Factors” in Table 1 at
the end of this article). In interpreting the findings below, it is
noteworthy that the identification and designation of these factors is
based on the most commonly identified “causes” of wrongful
conviction in the literature and is by no means a fixed or exhaustive
list of potential factors appearing in Australian wrongful convictions.
Additionally, some factors may indeed overlap. The definitions and
distribution of the causal and contributing factors in the repository are
listed below (see Figure 1 below for the distribution by number of
cases and the factors’ distributions as a percent of the total number of
cases in the repository).
59
The National Registry of Exonerations in the United States has sought cases of
factual innocence using a similar method and has identified over 1600 cases of
innocence as of October 2015: see Samuel R Gross and Michael Shaffer,
Exonerations in the United States: 19892012, a Report by the National Registry
of Exonerations (2012) <http://www.law.umich.edu.libraryproxy.
griffith.edu.au/special/exoneration/Documents/exonerations_us_1989_2012_ful
l_report.pdf>.
FLINDERS LAW JOURNAL [(2015
182
Figure 1
A Eyewitness Errors or Misidentification
Eyewitness errors or misidentification is identified in the international
literature as one of the leading causes of wrongful conviction.
60
It
includes eyewitness errors that could have occurred during the police
investigation through to witness statements given at trial that were
60
See, eg, Borchard, ‘Convicting the Innocent’, above n 1; Samuel R Gross et al,
Exonerations in the United States 1989 through 2003’ (2005) 95(2) Journal of
Criminal Law and Criminology 523; Gross and Shaffer, above n 58;
<http://www.law.umich.edu.libraryproxy.griffith.edu.au/special/exoneration/D
ocuments/exonerations_us_1989_2012_full_report.pdf>.
39
23
22
16
12
12
12
10
6
4
55
32
31
23
17
17
17
14
8
6
010 20 30 40 50 60
Police…
Erroneous Judicial Instructions…
Forensic Error or Misleading…
Incompetent Defence…
False Witness Testimony
Prosecutorial…
False Confessions
Indigenous Ethnicity of Accused
Erroneous Informant Testimony
Eyewitness Errors or…
Causal and Contributing Factors
of Wrongful Conviction in
Australia
% of Total Cases (N=71) Number of Cases
17 FLJ 163] RACHEL DIOSO-VILLA
183
found to be erroneous in part or in their identification of the accused.
This factor featured in 6 percent of the sample and included highly
publicised cases including David Eastman who was erroneously
identified by a witness as the man who had purchased the gun used in
the murder
61
and Andrew Mallard who fit the description of several
eyewitnesses that testified at trial as passing by the shop where the
deceased was killed.
62
B Erroneous Informant Testimony
This category includes any identification made by an untrustworthy
inmate or police informant during the investigation. The informant
may have also testified erroneously at trial. The issue with this form
of source information or court testimony is that it is highly susceptible
to influence, as police may unwittingly provide case information that
is later incorporated into the informant’s testimony and the informants
may have a vested interest in cooperating with police.
63
This was not
a prominent causal or contributing factor in the Australian sample and
featured in 8 percent of the cases in the repository. As an example, the
Ananda Marga Trio was wrongfully convicted for the terrorist
bombings of the Sydney Hilton Hotel in 1978.
64
The accused were
members of a religious sect believed to have bombed the hotel in
retaliation for the jailing of their religious leader. The witness
testimony by a police informant who had infiltrated the group alleged
61
See Wilson and Langdon, above n 15, 189; See also Keith Moor, ‘The man
convicted of murdering top cop Colin Winchester could be freed amid claims the
mafia were behind the assassination’, Herald Sun (online), 11 November 2013
<http://www.heraldsun.com.au/news/law-order/the-man-convicted-of-
murdering-top-cop-colin-winchester-could-be-freed-amid-claims-the-mafia-
were-behind-the-assassination/story-fni0ffnk-1226757601749>.
62
See Corruption and Crime Commission, Report on the Inquiry into Alleged
Misconduct by Public Officers in Connection with the Investigation of the
Murder of Mrs Pamela Lawrence, the Prosecution and Appeals of Mr Andrew
Mark Mallard, and Other Related Matters (2008), 88 <http://
www.ccc.wa.gov.au/Publications/Reports/Documents/Published%20Reports/20
08/Mallard%20Report%20complete.pdf>.
63
For a discussion of these issues, see Gross and Shaffer, above n 58, 55.
64
J James Wood, Section 475 Inquiry of the NSW Crimes Act into the Conviction
of Tim Anderson, Ross Dunn and Paul Alister (Government Printer, 1985).
FLINDERS LAW JOURNAL [(2015
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that the three men had confessed to the bombing.
65
After their
conviction, the Attorney-General ordered an inquiry into the case and
found that the police informant’s testimony was erroneous and
fabricated.
66
C Indigenous Ethnicity of Accused
The Indigenous ethnicity of the accused was added to the analysis due
to the existing research on the differential treatment of Indigenous
offenders in the Australian criminal justice system and the
corresponding issues that can arise for Indigenous people at the
investigation, trial and appeal phases.
67
As mentioned above,
Indigenous accused comprised 15 percent of the total sample of
wrongful convictions in Australia and the individuals are noted in
Table 1 at the end of this article. In a case involving five Indigenous
youth, race played a critical role in the police investigation, which
ultimately led to their conviction. A fight had broken out in the middle
of the night in which three carloads of white youth had driven to the
homes of the two Indigenous families calling out racial slurs and
brandishing planks of wood with nails in it intended to assault the
families.
68
Brett and Steven Rotumah and Gary, Ian and Vivian
Campbell were members of these targeted families and were on site to
respond to the disturbance; one of the elders from their homes notified
the police. The police attended the scene, broke up the fight and sent
the white youth home, while charging the Rotumahs and Campbells
with affray and assault. The police failed to notify the Aboriginal
Legal Aid Service as required by New South Wales law governing
police powers and responsibilities intended to protect vulnerable
populations, such as Indigenous youth.
69
In their interviews with the
youth, the police subsequently elicited confessions from them, which
were admitted into evidence at trial and became instrumental in their
65
Ibid.
66
Ibid; Wilson above n 15.
67
See Weathered, above n 1; See also Kent Roach, ‘Comparative Reflections on
Miscarriages of Justice in Australia and Canada’ in this issue.
68
See Belinda Kontominas, ‘Police unfairly targeted Aborigines in racial brawl,
court told’, Sydney Morning Herald, 12 March 2008, 4.
69
See Belinda Kontominas, Convictions quashed because police broke rules’,
Sydney Morning Herald, 15 December 2008, 5.
17 FLJ 163] RACHEL DIOSO-VILLA
185
convictions.
70
The convictions were quashed on appeal based on the
non-compliance of the police in handling the Indigenous youth and
obtaining confessions that should not have been admitted into
evidence.
71
D False Confessions
False confessions by the accused can arise out of a number of different
circumstances over the course of a police investigation. This category
featured in 17 percent of the cases in the repository. For example, the
tactics may be as coercive as a suspect giving a false confession due
to verbally or physically abusive police behaviours during an
interrogation, as was the case in Kelvin Condren’s conviction where
he alleged that the police physically abused him during an
interrogation while he was intoxicated in an attempt to elicit his
confession for killing his wife.
72
He later recanted his confession at
trial and denied any involvement in his wife’s murder.
73
Or false
confessions may occur independent of the accused’s actions, by police
denying the suspect’s right to legal counsel, which can result in a false
confession or the police writing the confession on behalf of the suspect
and submitting this as evidence at trial. Suzanne Hayman was wrongly
convicted of conspiracy to import heroin and the chief evidence
against her included her unsigned confession later exposed as
fabricated by the police to secure her conviction.
74
Lastly, this
category also included two cases where the true perpetrator later
confessed to the murders, which became instrumental in the quashing
of the accuseds’ convictions on appeal. Darryl Beamish and John
70
See ‘Aborigines claim police flouted laws’, Illawarra Mercury, 12 March 2008,
19.
71
Ibid.
72
See Rachel Dioso-Villa, ‘“Out of Grace”: Inequity in Post-Exoneration
Remedies for Wrongful Conviction’ (2014) 37 University of New South Wales
Law Journal 349.
73
See Meagan Dillon, ‘Meet the Victorian-born killer dubbed the Northern
Territory’s own Hannibal Lecter’, Herald Sun (online), 31 December 2013
<http://www.heraldsun.com.au/news/law-order/meet-the-victorianborn-killer-
dubbed-the-northern-territorys-own-hannibal-lecter/story-fni0ffnk-1226792493
288>.
74
See Jane Dunbar, “Lucky’ Kiwi to sue over wrongful jail’, The Australian
(Canberra), 14 October 1998, 2; see Wilson and Langdon, above n 15.
FLINDERS LAW JOURNAL [(2015
186
Button were both convicted of murders which Eric Edgar Cooke,
responsible for at least four other killings, confessed to before his
death by hanging.
75
The Courts of Appeal in both cases cited in their
quashing of the convictions that Cooke had likely committed both
murders.
76
E Prosecutorial misconduct or overzealousness
Acts of prosecutorial misconduct or overzealousness in this category
included acts where the prosecution withheld vital information from
the defence during trial and instances in which the prosecutor
exhibited bias during the trial due to personal relationships with police
investigating the crime. This occurred in 17 percent of the sample. A
notable example is Roseanne Catt who was the victim of malicious
prosecution and served 10 years in prison for conspiracy to murder her
husband, which a judicial inquiry later found that several of the
prosecution’s experts testified falsely in an attempt to frame her.
77
She
subsequently successfully sued the New South Wales government for
malicious prosecution and received $2.3 million in compensation.
78
F False Witness Testimony
This category included any false testimony or perjury provided in the
courtroom by a witness and false allegations by alleged victims. This
occurred in 17 percent of cases in the sample, with several instances
of false allegations of rape where victim statements were admitted into
evidence that guided the police investigations, which were later
retracted or exposed as false, erroneous, or highly questionable on
appeal. For example, the conviction of Frederick Arthur Martens
75
Mark Russell, ‘Appeal after 41 years’, Herald Sun (Melbourne), 29 June 2002,
17.
76
Kathryn Shine, ‘Cleared at last after 44 years’, Weekend Australian (Canberra),
2 April 2005, 1.
77
See Simon Thomsen, ‘A NSW woman framed for attempting to murder her
husband just won $2.3 million in compensation’, Business Insider, 24 August
2015 <http://www.businessinsider.com.au/a-nsw-woman-framed-for-attemp
ting-to-murder-her-husband-just-won-2-3-million-in-compensation-2015-8>.
78
Ibid. It was subsequently increased to $4 million to include interest: see above n
4.
17 FLJ 163] RACHEL DIOSO-VILLA
187
rested on allegations by the victim of assault that were later retracted.
79
The complainant’s retraction along with new evidence discovered in
his second appeal cast doubt on the event, which ultimately led to the
quashing of his conviction.
80
The conviction of Kevin Ibbs, labeled the
30-second rapist for failing to stop intercourse when the victim
allegedly withdrew her consent,
81
is also a case in which the victim
later retracted her statement and confessed that she had orchestrated
the event with the intent to charge Ibbs with sexual assault.
82
G Incompetent Defence Representation
This category included behaviours by defence counsel at trial that
could gravely impact the case outcome and contribute to a wrongful
conviction. These included the accused’s denial of access to legal aid
at any point during the investigation or trial, the defence counsel
failing to follow up on potential important leads revealed either at the
time of the trial or during appeal, or pressuring the accused to plead
guilty against their will. Almost one-quarter of the sample involved
some form of incompetent or unreliable defence counsel during trial
or appeal. For example, Ryan D’Orta-Ekenaike was induced to plead
guilty at his committal hearing under the pressure of his barrister and
the officer of the Victorian Legal Aid who claimed that he had no
defence against the rape charges.
83
He subsequently reversed his plea
at trial, but it was still relied upon by the prosecutor as an admission
of guilt and he was convicted. His conviction was quashed on appeal
79
See Michael Wray, ‘Pilot sues over false rape case’, The Courier Mail
(Brisbane), 4 February 2010, 8.
80
After Marten’s conviction, he requested Australian Federal Police files on his
case regarding the flight details in which the alleged assault happened to
investigate inconsistencies with the complainant’s testimony: See Geesche
Jacobsen, ‘Police accused of hiding evidence in rape case’, Sydney Morning
Herald, 31 January 2011, 4.
81
See Ibbs v The Queen [2001] WASCA 129.
82
Ibid.
83
See Michael Kirby, ‘Of Advocates, Drunks and Other Players: Plain Tales From
Australia’ (Speech delivered at the Peter Taylor Memorial Lecture, London, 22
March 2011).
FLINDERS LAW JOURNAL [(2015
188
on this basis and evidence of the guilty plea was not admitted at retrial
and he was acquitted.
84
H Forensic Error or Misleading Forensic Evidence
Forensic error or misleading forensic evidence is one of the leading
causes of wrongful convictions in America found to be present in
approximately 74 percent of DNA exonerations taken from a study of
Innocence Project cases
85
and in 24 percent of cases in the study based
on National Registry of Exoneration cases that included DNA and
non-DNA exoneration cases.
86
In the Australian sample, this category
was coded to include behaviours such as forensic experts exaggerating
forensic evidence in court, if and when results were falsified or
misinterpreted during the investigation or at trial, or when an untested
or unreliable forensic technique was used in the analysis. The
conviction of Farah Jama for the rape of a woman in a nightclub is a
key example of a forensic error that led to a wrongful conviction. In
this instance, the prosecution’s case rested solely on DNA evidence,
since there were no eyewitnesses that could identify Jama, the victim
had no memory of the assault or perpetrator, and Jama had an alibi for
his whereabouts on the night of the crime.
87
The Victorian Court of
Appeal quashed Jama’s conviction due to a “mix up” in the forensic
laboratory.
88
The Victorian Department of Justice then commissioned
an inquiry into the circumstances that led to Jama’s conviction and it
revealed that the same forensic medical officer who collected Jama’s
sample for an unrelated incident also collected the sample from the
rape victim in the case 24 hours later.
89
Therefore, the cross-
contamination of samples could not be ruled out.
84
Fergus Shiel, ‘Court upholds protection for lawyers: First Edition’, The Age
(Melbourne), 11 March 2005, 6.
85
See Garrett, Convicting the Innocent, above n 14.
86
See Gross and Shaffer, above n 58.
87
See Victoria, Inquiry into the Circumstances That Led to the Conviction of Mr
Farah Abdulkadir Jama, Report (2010).
88
Kate Hagan, ‘15 months’ jail a miscarriage of justice: DNA fiasco: rape
conviction quashed’, The Age (Melbourne), 8 December 2009, 1.
89
Millanda Rout, ‘Freed man Farah Jama angry over rape DNA bungle’, The
Australian (online), 7 December 2009 <http://www.theaustralian.com.
au/news/nation/freed-man-farah-jama-angry-over-rape-dna-bungle/story-e6frg
6nf-1225807837386>.
17 FLJ 163] RACHEL DIOSO-VILLA
189
Another example of faulty forensic evidence is Gordon Wood’s
conviction for killing his girlfriend. The central question in the case
became whether she had jumped off the cliff face to commit suicide
or whether she was pushed or thrown intentionally to her death. The
prosecution’s case relied on forensic experiments that attempted to
determine what had to have transpired in order for her body to be
found in the particular location and orientation. The forensic expert
attempted to simulate the victim’s trajectory by having a male police
officer with a similar build to the accused throw a female officer or
mannequin into a swimming pool.
90
His results concluded that given
the position of the body, it was not possible for the victim to have run
and jumped as an act of suicide; rather, she had to have been “spear-
thrown” from the cliff by someone. On appeal, the court was presented
conflicting evidence about where the body was found and the
orientation of her legs and torso that cast doubt on the forensic expert’s
calculations, and the validity of the experiments conducted at pre-trial
and presented in trial was questioned; the appellate court subsequently
quashed Wood’s conviction.
91
I Erroneous Judicial Instructions to Jury
Erroneous judicial direction was added to the list of potential causal or
contributing factors of wrongful conviction in Australia due to its
repeated occurrence in the sample. It was the second most prominent
factor in the dataset appearing in almost one-third of all cases. The
nature of these errors were raised on appeal and were case specific that
related to various aspects of the trial and the way in which the judge
addressed the jury. For example, they related to directing the jury as
to the definition of the crime, what aspects of evidence should be
90
Graeme Leech, ‘Murder by degrees’, The Australian (Canberra), 30 September
2009, 13.
91
Louise Hall, ‘Trial expert stands firm as judge questions impartiality’, Sun
Herald (Sydney), 26 February 2012, 15.
FLINDERS LAW JOURNAL [(2015
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considered or ignored,
92
what to consider for their final verdict,
93
or
failing to outline the issues to consider in the final verdict.
94
For
example, Tomas Klamo was convicted of manslaughter for killing his
infant son by shaking him to death. The Supreme Court of Victoria
Court of Appeal found that the trial judge erred by repeatedly directing
the jury that its task was to unanimously determine the cause of the
infant’s death before finding a verdict of guilt. Rather the jury should
have been instructed that they could not convict unless they
unanimously agreed upon which act constituted the crime that killed
the infant, as the act may not have involved Klamo.
95
J Police Misconduct or Overzealousness
This category was broadly defined to include acts where police acted
overzealously during the investigation in charging someone with
insufficient evidence of a crime, overt acts of police misconduct such
as verbal and physical acts of coercion of a suspect or witness, guiding
or directing witnesses during the investigation, withholding evidence,
or the fabrication or planting of false evidence in the suspect’s home,
vehicle or person. At least one form of police misconduct or
overzealousness occurred in more than half of the cases in the
Australian sample. As Table 1 at the end of this article indicates, in
92
See, eg, the appeal of Salvatore Fazzari, where the Supreme Court of Western
Australia found that the trial judge erred by misdirecting the jury on the
interpretation of several aspects of the prosecutions case that were found to be
prejudicial and wrong: Martinez v The State of Western Australia [2007]
WASCA 143.
93
See, eg, the case of Tomas Klamo briefly described above: R v Klamo [2008]
VSCA 75.
94
See, eg, Paul Jacob Poduska’s case of driving under the influence causing death
where the trial judge failed to direct the jury on specific matters surrounding the
event to determine whether Poduska acted negligently: see Elissa Hunt,
‘Conviction for fatal crash driver quashed’, Herald Sun (online), 18 August 2008
<http://www.heraldsun.com.au/news/victoria/crash-driver-cleared-of-
deaths/story-e6frf7kx-1111117226841>. Rather, the trial judge left it up to the
jury to decide which factors may have constituted negligence in the case: see
Kate Hagan, ‘Man acquitted of killing rabbiting friends’, Sydney Morning
Herald (online), 19 August 2008 <http://www.smh.com.au/national/man-
acquitted-of-killing-rabbiting-friends-20080818-3xqm>; See also R v Poduska
[2008] VSCA 147.
95
R v Klamo [2008] VSCA 75.
17 FLJ 163] RACHEL DIOSO-VILLA
191
many instances, several acts took place over the course of an
investigation that constituted police misconduct, overzealousness, or
tunnel vision where police may not have followed up on potentially
important leads during the investigation or they placed undue weight
on circumstantial evidence during the investigation that surrounded
the suspect. For example, as mentioned above, Roseanne Catt
successfully sued the New South Wales government for malicious
prosecution. Catt was wrongly convicted of conspiring to commit the
murder of her husband. The Detective Sergeant leading the
investigation had a history of knowing Roseanne Catt and her husband
and was reported to have been friends with the husband and to have
had a bias against Roseanne Catt who had previously lodged
allegations of his inappropriate behavior when investigating a fire at
one of their properties.
96
Over the course of the appeal, evidence was
reported that the police investigator acted on this bias by pressuring
witnesses to give false evidence during the investigation and directing
them at trial, planting a gun in her bedroom as evidence against her,
and there was the probability that he also tampered with the evidence
to frame Roseanne Catt in poisoning her husband.
97
The findings confirm anecdotal references in the Australian
literature that there are similar causal factors that contribute to
wrongful convictions to that of other international jurisdictions such
as the United States.
98
As Figure 1 above indicates and as detailed in
Table 1 at the end of this article, there may be multiple causal or
contributing factors present in any given wrongful conviction. The
leading causal and contributing factors in wrongful conviction in the
sample were issues around police misconduct and forensic evidence
with each factor appearing in about one-third of the sample. Erroneous
judicial instructions to the jury also featured as a common cause of
96
Wendy Bacon, Thomas had Pathological Hatred for Roseanne, Barrister tells
Judge (19 August 2014) <http://www.wendybacon.com/2014/brick-by-brick-
blacket-builds-becketts-case-but-can-he-build-a-wall/>.
97
Wendy Bacon, Brick by Brick Blackett Builds a Case for Beckett but can he make
a Wall? (2 September 2014) <http://www.wendybacon.com/2014/brick-by-
brick-blacket-builds-becketts-case-but-can-he-build-a-wall/>.
98
See Weathered, above n 1; Lynne Weathered, ‘A Question of Innocence:
Facilitating DNA-Based Exonerations in Australia’ (2004) 9 Deakin Law
Review.
FLINDERS LAW JOURNAL [(2015
192
wrongful conviction in the sample, though this factor was not
identified in the international literature as a causal or contributing
factor of wrongful conviction. Interestingly, one of the leading
established factors of wrongful conviction in the international
literature, particularly the United States, was the occurrence of
eyewitness errors or misidentifications that featured in as high as
three-quarters of the cases in several studies.
99
The reverse was true in
the Australian sample with it occurring in 4 percent of cases.
At the outset, it should be noted that a limitation of not having a
national repository or the systematic recording and collection of
wrongful convictions across jurisdictions is that all materials obtained
for the dataset came from publicly accessible resources (such as news
media outlets, legal databases, Hansard reports, academic articles and
books). In many ways, the cases and associated causes and
contributing factors of wrongful conviction are products of the
material available in the analysis. That is to say that access to trial
transcripts and case files that include police records, witness testimony
and expert reports would provide an added depth to the analysis and
could lead to the identification of different or additional factors
associated with wrongful conviction in Australia.
There is also an inherent hesitation in referring to the factors
identified in the sample as causal ones that produce wrongful
convictions, as they are commonly referred to in the American
literature. This reflects the fact that in the Australian context, such
claims are based on a small, non-representative sample of cases. Also,
there is little accompanying information about the context and
interaction of the identified factors, beyond their absence or presence
in a given case. In fact, some scholars have turned toward a more
integrated understanding of how and why errors occur by treating the
criminal justice system as an organisational system of interrelated
parts.
100
These system theorists argue that a system built of individual,
99
See Michael J Saks and Jonathan J Koehler, ‘The Coming Paradigm Shift in
Forensic Identification Science’ (2005) 309 Science; Garrett, above n 12. Note
that 43 percent was noted in Gross and Shaffer, above n 58.
100
See James Doyle, ‘An Etiology of Wrongful Convictions: Error, Safety, and
Forward-Looking Accountability in Criminal Justice’ in Marvin Zalman and
17 FLJ 163] RACHEL DIOSO-VILLA
193
but interrelated parts, can experience errors at any point.
101
These
errors can lead to additional errors further down the track of the system
that may compound to eventually result in a breakdown.
102
For
example, in a hypothetical case, an eyewitness misidentification can
occur early in a police investigation that can influence the direction in
which the police pursue potentially important leads and discredit
others. This may influence the police to use coercive tactics to elicit a
suspect’s confession or create undue pressure on other witnesses or
informants in support of their theory. The evidence produced in the
police investigation is then passed on to the prosecution to build the
case against the accused. The prosecution may focus their arguments
on circumstantial evidence, may withhold vital information that does
not support their theory of the crime, or they may direct opening and
closing arguments and questioning of witnesses according to their
belief of the case. These problems can be compounded by erroneous
judicial directions to the jury as to what aspects of the case or evidence
to consider in determining their verdict, which can cumulatively result
in the conviction of an innocent person. While this hypothetical case
is used to demonstrate how errors and actions at different points may
result in a wrongful conviction, several cases listed in the repository
display similar points and possible characteristics. The retrospective
analysis of known wrongful convictions as unexpected system
breakdowns and outcomes can serve as an opportunity to investigate
how and why these conditions may arise in the system and what
actions or events may be critical to preventing future errors.
103
The
Julia Carrano (eds), Wrongful Conviction and Criminal Justice Reform: Making
Justice (Routledge, 2014); James M Doyle, ‘Learning from Error in American
Criminal Justice’ (2010) 100(1) Journal of Criminal Law and Criminology 109;
See also Erik Luna, ‘System failure’ (2005) 42(4) (2005 Fall) American Criminal
Law Review 1201; John P Van Gigch, Applied General Systems Theory (Harper
& Row, 2nd ed, 1978).
101
See generally Sidney Dekker, Drift into Failure: From Hunting Down Broken
Components to Understanding Complex Systems (Ashgate, 2011). For
applications to wrongful convictions: see Luna, above n 99; see also Doyle,
‘Learning from Error’, above n 99.
102
See Charles Perrow, ‘Accidents in High-Risk Systems’ (1994) 1 Technology
Studies 1; Charles Perrow, Normal Accidents: Living with High-Risk
Technologies (Princeton University Press, 1999); Dekker, above n 100; James T
Reason, Managing the Risks of Organizational Accidents (Ashgate, 1997).
103
See John Doyle, ‘Learning from Error in the Criminal Justice System: Sentinel
Event Reviews’ in Mending Justice: Sentinel Event Reviews (National Institute
of Justice, 2014).
FLINDERS LAW JOURNAL [(2015
194
current repository could serve such a function by providing the cases
necessary for examination.
VI CONCLUSION
There is a need for systematic and empirical research on the
occurrence and prevalence of wrongful conviction in Australia.
Currently, all jurisdictions lack any systematic recording and
collection of data on successful appeals that can identify potential
wrongful conviction in need of further investigation. The current
repository of 71 cases of known wrongful convictions in Australia is
offered as a starting point for further research to enable international
comparisons. In this paper, potential causal and contributing factors
were identified in the aggregate of the Australian cases that included
many of the same causal factors established in the international
literature and the addition of other factors specific to the Australian
context including erroneous judicial directions and the Indigenous
ethnicity of the accused. Rather than limiting our purview of research
to estimating the prevalence of wrongful conviction in Australia and
its potential causes, it would advance the field to view these
occurrences as the result of actions and events within a complex
system with different stages and parts. By doing so, we can attempt to
understand the interrelationships and interactions between different
actors (such as police investigators, expert witnesses, prosecution,
defence counsel and judges) at different stages of the criminal justice
system (from police investigation to trial and appeal) that may have
ultimately led to a wrongful conviction.
17 FLJ 163] RACHEL DIOSO-VILLA
195
Table 1 Known wrongful convictions in Australia (between 1922 and 2015)
Accused
State
Year
Convicted/
Exonerated
Sentence/
Time
spent
in Prison
Case
Outcome
Causal
and
Contributing
Factors
ALISTER,
Paul
NSW
1979/ 1985
(pardoned)/
1991
(quashed)
16 years/
7 years
Pardoned
Quashed
Acquittal
entered
Unreliable
informant
testimony
ANDERSON,
Tim
NSW
1979/ 1985
(pardoned)/
1991
(quashed)
16 years/7
years
Pardoned
Quashed
Acquittal
entered
Unreliable
informant
testimony
ANGEL,
Jeannie
(Indigenous)
WA
1989/1991
Life
imprison-
ment/
2.5 years
Quashed
Police
misconduct
Overzealous
police
Poor police
investigation
BEAMISH,
Darryl
WA
1961/2005
Capital
punish-
ment/15
years
Quashed
Overzealous
prosecution
Overzealous
police
Police
misconduct
Confession
by other
Inadequate
defence
BUI,
Hong
VIC
2006/2008
11 years/2
years
Quashed
Erroneous
judicial
instructions
Police tunnel
vision
BUTTON,
Frank
(Indigenous)
QLD
2000/2001
7 years/10
months
Quashed
Eyewitness
misidentificat
ion
Poor forensic
investigation
Police
misconduct
Overzealous
prosecution
BUTTON,
John
WA
1963/2002
10 years/5
years
Quashed
False
confession
Overzealous
police
Police
misconduct
Confession
by other
Inadequate
defence
FLINDERS LAW JOURNAL [(2015
196
Accused
State
Year
Convicted/
Exonerated
Sentence/
Time
spent
in Prison
Case
Outcome
Causal
and
Contributing
Factors
CAMPBELL,
Gary
(Indigenous)
NSW
2007/2008
- / -
Quashed
Inadequate
defence
Police tunnel
vision
False
confession
CAMPBELL,
Ian
(Indigenous)
NSW
2007/2008
- / -
Quashed
Inadequate
defence
Police tunnel
vision
False
confession
CAMPBELL,
Vivian
(Indigenous)
NSW
2007/2008
- / -
Quashed
Inadequate
defence
Police tunnel
vision
False
confession
CATT,
Roseanne
NSW
1991/2005
12 years
and 3
months/
10 years
Quashed
Perjury by
witness
Police
misconduct
Overzealous
police
Overzealous
prosecution
Erroneous
judicial
instructions
CARROLL,
Raymond John
QLD
1985/ -
- / -
Quashed,
Acquittal
entered
Misleading
forensic
evidence
Forensic error
CHAMBERLAIN,
Lindy
NT
1982/1988
Life
imprison-
ment with
hard
labour/4
years
Quashed,
Acquittal
entered
Forensic error
Overzealous
police
Police tunnel
vision
Overzealous
prosecution
Erroneous
judicial
instructions
CHAMBERLAIN,
Michael
NT
1982/1987
Deferred
sentence/
N/A
Quashed,
Acquittal
entered
Forensic error
Overzealous
police
Police tunnel
vision
Overzealous
prosecution
Erroneous
judicial
instructions
17 FLJ 163] RACHEL DIOSO-VILLA
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Accused
State
Year
Convicted/
Exonerated
Sentence/
Time
spent
in Prison
Case
Outcome
Causal
and
Contributing
Factors
CHRISTIE,
Rory Kirk
WA
2003/2005
10 years/
3 years
Quashed
Acquitted
at retrial
Forensic error
Overzealous
police
Erroneous
judicial
instructions
CONDREN,
Kelvin
(Indigenous)
WA
1984/1990
Life
imprison-
ment/
7 years
DPP
withdrew
charges
False
confession
Improper
interrogation
Police
misconduct
DUNN,
Ross
NSW
1979/ 1985
(pardoned)/
1991
(quashed)
16 years
Pardoned
Quashed
Acquittal
entered
Unreliable
informant
testimony
D’ORTA-
EKENAIKE,
Ryan
NSW
1996/1997
3 years/
7 months
Quashed
Acquitted
on retrial
Erroneous
judicial
instructions
Pled guilty
against will
EASTERDAY,
Clark
WA
1993/2003
3 years/
1.5 years
Quashed
Prosecution
non-
disclosure
Erroneous
judicial
instructions
ETTRIDGE,
David
QLD
2003/2003
3 years/
2.5
months
Quashed
False witness
testimony
Erroneous
judicial
instructions
EASTMAN,
David
ACT
1989/2014
Life
imprison-
ment/
19 years
Quashed
Forensic error
Police
misconduct
Erroneous
eyewitness
Inadequate
defence
FAZZARI,
Salvatore
WA
2005/2007
Life
imprison-
ment/
3 years
Quashed
Acquittal
entered
Misleading
forensic
evidence
Police tunnel
vision
Erroneous
judicial
instruction
FOSTER,
Steven
NSW
1990/ -
- / -
Quashed
False
confession
Police
misconduct
FLINDERS LAW JOURNAL [(2015
198
Accused
State
Year
Convicted/
Exonerated
Sentence/
Time
spent
in Prison
Case
Outcome
Causal
and
Contributing
Factors
GEESING,
Raymond John
SA
1983/1985
Life
imprison-
ment/
15 years
Quashed
Unreliable
informant
testimony
GILHAM,
Jeffrey
NSW
2009/2012
Life
imprison-
ment/
2 years
Quashed
Acquittal
entered
Forensic error
Erroneous
judicial
instruction
GREENSILL,
Josephine
VIC
2010/2012
5 years/
2.5 years
Quashed
Acquittal
entered
False witness
testimony
Unreliable
informant
testimony
HANSON,
Pauline
QLD
2003/2003
3 years/
2.5
months
Quashed
False witness
testimony
Erroneous
judicial
instructions
HAYMAN,
Suezanne
NSW
1987/1988
- /3.5
years
Quashed
False
confession
Police
misconduct
HYTCH,
Robert
QLD
1999/2008
- /9 years
Quashed
Acquitted
on retrial
Police tunnel
vision
IBBS,
Kevin
WA
1987/2001
4 years /
6 months
Quashed
False witness
testimony
IRELAND,
Dean
WA
1993/2003
3 years
Quashed
Prosecution
non-
disclosure
Erroneous
judicial
instructions
IRELAND,
Len
WA
1993/2003
3 years/
1.5 years
Quashed
Prosecution
non-
disclosure
Erroneous
judicial
instructions
IRVING,
Terry
(Indigenous)
WA
1993/1998
8 years/
4.5 years
Quashed
Eyewitness
misidentific-
ation
Inadequate
defence
JAMA,
Farah Abdulkadir
VIC
2006/2009
6 years/
15
months
Quashed
Acquittal
entered
Forensic error
Police
misconduct
17 FLJ 163] RACHEL DIOSO-VILLA
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Accused
State
Year
Convicted/
Exonerated
Sentence/
Time
spent
in Prison
Case
Outcome
Causal
and
Contributing
Factors
JENSON,
Douglas
VIC
2004/2011
16 years/
7 years
Quashed
Acquitted
at retrial
Police
misconduct
Prosecutorial
misconduct
Evidence
erroneously
admitted to
trial
KEENAN,
Francis Robert
QLD
2007/2007
Life
imprison-
ment/
9 months
Quashed
Acquittal
entered
Erroneous
judicial
instructions
KELLY,
Patrick Desmond
VIC
Unknown
(offence in
2004)
Non-
custodial
sentence/
N/A
(length
unknown)
Quashed
Acquittal
entered
Inadequate
defence
KLAMO,
Tomas
VIC
2007/2008
5 years/
2 years
Quashed
Acquittal
entered
Forensic error
Erroneous
judicial
instructions
LANDINI,
Henry
NSW
1983/2001
15 years/
5 years
Quashed
Police
misconduct
Overzealous
police
MALLARD,
Andrew
WA
1995/2006
Life
imprison-
ment/
11 years
Quashed
False
confession
Prosecution
non-
disclosure
Eyewitness
error
Improper
interrogation
Police
misconduct
Inadequate
defence
MANLEY,
Jonathan
NSW
1993/1994
12.5
years/
1 year
Quashed
Erroneous
expert
evidence
Inadequate
defence
MARTENS,
Fredrick Arthur
QLD
2006/2009
5.5 years/
2.75 years
Quashed
on
second
appeal
False victim
allegations/tes
timony
Police
misconduct
FLINDERS LAW JOURNAL [(2015
200
Accused
State
Year
Convicted/
Exonerated
Sentence/
Time
spent
in Prison
Case
Outcome
Causal
and
Contributing
Factors
MARTINEZ,
Jose
WA
2005/2007
Life
imprison-
ment/
3 years
Quashed
Acquittal
entered
Misleading
forensic
evidence
Police tunnel
vision
Erroneous
judicial
instruction
MCCLEOD-
LINDSAY,
Alexander
NSW
1965/1990
18 years/
9 years
Pardoned
Misleading
forensic
evidence
MCDERMOTT,
Frederick Lincoln
NSW
1947/2012
Death,
commut-
ed to Life
imprison-
ment/
5 years
Quashed
Acquittal
entered
Police
misconduct
Misleading
forensic
evidence
False witness
testimony
Overzealous
police
MICKELBERG,
Peter
WA
1982/2004
14 years/
6 years
Quashed
Police
misconduct
Overzealous
police
Inadequate
defence
MICKELBERG,
Ray
WA
1982/2004
20 years/
8 years
Quashed
Police
misconduct
Overzealous
police
Inadequate
defence
MRAZ,
Gigula
NSW
1955/1956
- / -
Quashed
Acquitted
on retrial
Erroneous
judicial
instructions
NARKLE,
Vincent
(Indigenous)
WA
1993/2006
5 years/
19
months
Quashed
Prosecution
non-
disclosure
Overzealous
police
Police
misconduct
PEREIRAS,
Carlos
WA
2005/2007
Life
imprison-
ment/
3 years
Quashed
Acquittal
entered
Misleading
forensic
evidence
Police tunnel
vision
Erroneous
judicial
instruction
17 FLJ 163] RACHEL DIOSO-VILLA
201
Accused
State
Year
Convicted/
Exonerated
Sentence/
Time
spent
in Prison
Case
Outcome
Causal
and
Contributing
Factors
PERRY,
Emily
SA
1981/1982
15 years/
1 year
Quashed
Charges
with-
drawn
Overzealous
police
Poor forensic
investigation
Prosecutorial
misconduct
PODUSKA,
Paul Jacob
VIC
2007/2008
35 years/
9 months
(approx)
Quashed
Erroneous
judicial
instructions
RENDELL,
Douglas Harry
NSW
1980/ 1989
(pardoned)/
1997
(quashed)
Life
imprison-
ment/
8 years
Pardoned
Quashed
Police
misconduct
Forensic error
ROSS,
Colin Campbell
VIC
1922/2008
Capital
punish-
ment/
115 days/
executed
Pardoned
post-
humously
Forensic error
False witness
testimony
Unreliable
informant
testimony
ROTUMAH,
Brett
(Indigenous)
NSW
2007/2008
- / -
Quashed
Inadequate
defence
Police tunnel
vision
False
confession
ROTUMAH,
Steven
(Indigenous)
NSW
2007/2008
- / -
Quashed
Inadequate
defence
Police tunnel
vision
False
confession
SCHAFER,
Colleen Joy
QLD
1987/ -
- / -
Quashed
Police
misconduct
Overzealous
police
SIEGFRIED
POHL,
Johann Ernst
NSW
1973/1992
Life
imprison-
ment/
10 years
Pardoned
Forensic error
SLOAN,
Robert
VIC
2001/2001
4 years
and 4
months/
5 months
Quashed
Police
misconduct
Police tunnel
vision
SPLATT,
Edward
SA
1978/1984
Life
imprison-
ment/
6.5 years
Pardoned
Quashed
Poor forensic
investigation
Police
misconduct
STAFFORD,
Graham
QLD
1992/2009
Life
imprison-
ment/
15 years
Quashed,
Acquitted
on retrial
Poor forensic
investigation
STEGMAN,
Geoffrey Robert
QLD
1993/1993
- / -
Quashed
Erroneous
judicial
instructions
FLINDERS LAW JOURNAL [(2015
202
Accused
State
Year
Convicted/
Exonerated
Sentence/
Time
spent
in Prison
Case
Outcome
Causal
and
Contributing
Factors
STEVENS,
Laurie
QLD
2003/2009
- / 3 years
(approx.)
Quashed,
Acquitted
on retrial
Erroneous
judicial
instructions
STUART,
Rupert Max
(Indigenous)*
SA
1959/1973
Death,
commut-
ed to life
imprison-
ment/
14 years
Unoffic-
ial
Improper
interrogation
False
confession
SZITOVSZKY,
Leslie Christopher
VIC
2007/2009
18 years/
2 years
Quashed
Acquitted
on retrial
Undue weight
to
circumstantial
evidence
TAHCHE,
Robert
VIC
1991/1995
16 years/
3 years
Quashed
False victim
allegations
THAIDAY,
Patrick Dominic
QLD
2008/2009
8 years/
5 months
(approx)
Quashed
False victim
testimony
THOMAS,
Joseph Terrence
VIC
2006/2008
5 years/
10
months
(approx)
Quashed
Acquitted
on retrial
Police
misconduct
Inadequate
defence
False witness
testimony
TRAN,
Hoang Quang
VIC
2006/2008
11 years/
2 years
Quashed
Erroneous
judicial
instructions
Police tunnel
vision
TRAN,
Long Thanh
VIC
2006/2008
11 years/
2 years
Quashed
Erroneous
judicial
instructions
Police tunnel
vision
WOOD,
Gordon
NSW
2008/2012
17 years/
4 years
Quashed
Forensic error
*Rupert Max Stuart is believed to be factually innocent, though no court of law has overturned his
conviction. His death sentence was commuted and he died in 2014.
... Forensic science has nonetheless also been implicated in miscarriages of justice, with many notable wrongful convictions. For example, in Australia, of 71 known wrongful convictions from 1922 to 2015, twenty-two cases (31%) involved misleading forensic science (Dioso-Villa, 2015). Similarly, forensic science was implicated in 32% of 218 cases overturned on appeal in England and Wales over a seven-year period from 2010 to 2016 (Smit, Morgan, & Lagnado, 2018). ...
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... Comparing the different categories of wrongful convictions revealed that the definition influenced the types of errors involved, with factual, legal, and procedural wrongful convictions involving different errors committed at different stages of the process. Factors associated with factual innocence identified in the current study are frequently cited causes of wrongful convictions in both international and Australian literature (Dioso-Villa, 2015;Garrett, 2011;Gross & Shaffer, 2012), showing that these same factors are also apparent in wrongful convictions involving factually innocent persons who plead guilty. However, by adopting a broader definition, this study was able to capture a wider range of errors that may frequently occur in guilty plea convictions. ...
Article
Criminal defendants can face significant pressures to plead guilty, but wrongful conviction scholarship has largely overlooked the study of guilty pleas. This study content analyzed 139 Australian appellate court judgments in which a guilty plea conviction was overturned, investigating the types of errors involved in these convictions, and the stage of the criminal justice process at which the errors occurred. The findings revealed that errors occurred during the police investigation, pretrial preparations, and formal court procedures, with the most frequent errors involving incorrect or inappropriate charges, inadequate legal representation, and the courts erroneously accepting a guilty plea. The findings raise important implications regarding the adequacy of safeguards to ensure guilty pleas are appropriate or factually and legally accurate.
... Issues with eyewitness memory can have a major impact on police investigations, leading to a focus on the wrong suspect or an erroneous line of inquiry. Moreover, eyewitness issues are common contributing factors to wrongful convictions in the United States (Innocence Project, 2021) and Australia (Dioso-Villa, 2015). The quality of the witness interview is one key factor that will influence the accuracy of the witness's testimony, as well as what they will remember later on. ...
Article
The memory of eyewitnesses is a valuable form of evidence within criminal investigations. However, both investigators and eyewitnesses are not exempt from making mistakes that may impede upon the accuracy of witness statements. One such mistake is known as memory blindness. Memory blindness describes the process by which - unintentional or intentional - alterations to witness statements made by investigators can lead witnesses to not notice (i.e., be blind to) such changes, which in turn may distort witnesses’ memories for these altered details. Memory blindness holds serious implications for both eyewitness recall memory, and may therefore compromise the criminal investigation. The current paper will discuss recent developments in the research on memory blindness and describe the factors that have so far been identified as impacting upon memory blindness in witnesses. Recommendations as to best practices for avoiding distorted memory during interviews resulting from memory blindness are also provided in light of the current research base.
... Australia has an unfortunate history of verballing and false confessions within the context of interviews with suspects. In 17% of the known Australian wrongful conviction cases, a false confession was made (Dioso-Villa, 2015). This can be explained by the fact that for a long time, Australian police forces interrogated suspects following the Judges' Rules, which provided minimum protections for suspects (Milte & Weber, 1977). ...
Article
Full-text available
Psychological research has been pivotal in influencing the way police forces globally approach and undertake criminal investigations. Increasing psychological research in recent years has led to the development of best-practice guidelines for conducting police investigations, across a number of key areas of criminal investigation. For example, procedures for creating and conducting lineups as recommended by the American Psychology-Law Society (Wells et al., 1998), and the UK developed PEACE model for investigative interviewing, have both been of influence in Australia. However, it is unclear the extent to which these evidence-based recommendations have been incorporated into policing practice within Australia. In the current article, we conducted an exploratory review of publicly available policing documents within Australian states and territories, to determine the extent to which best-practice lineup identification and investigative interviewing procedures have been adopted into police practice. The review revealed that for lineup identification procedures, many of the basic recommendations for conducting lineups were not incorporated into publicly available policing manuals. For investigative interviewing, it appeared on the surface that elements of the PEACE model were implemented within most Australian jurisdictions, albeit this was often not explicitly stated within policing documents. A key issue identified was a lack of (understandable) public transparency of policing procedure, as a number of Australian jurisdictions failed to have publicly available policing manuals or handbooks in which to evaluate their procedures against. Therefore, we argue that there is a need for better collaboration between researchers and law enforcement in order to achieve evidence-based, transparent policing within Australia.
... Courts worldwide have been influenced by the mistaken and inaccurate opinions of expert witnesses. False and flawed expert testimony has contributed to approximately 60% of known wrongful convictions identified by the United States Innocence Project (Garrett, 2017;Garrett & Neufeld, 2009), one third (31%) of 71 Australian exonerations (Dioso-Villa, 2015) and one quarter (24%) of exonerations in the United States National Registry of Exonerations (Gross & Shaffer, 2012). Indeed, discredited and unvalidated forms of expert evidence continue to be admitted and relied on by courts despite authoritative criticism (National Research Council, 2009;PCAST, 2016;Skene, 2018). ...
Article
Expert opinions admitted by courts are not always valid and reliable. However, we know little about how indicators of opinion quality affect the persuasiveness of an expert. In this study 25 Australian magistrates and 22 jury-eligible lay people rated the persuasiveness (via credibility, value and weight) of either a high- or a low-quality expert opinion. Opinion quality was determined using attributes specified in the Expert Persuasion Expectancy (ExPEx) framework: Field, Specialty, Ability and Trustworthiness. Both magistrates and jurors were significantly more persuaded by the high- than the low-quality expert opinion. Magistrates were also significantly more sceptical of the expert opinion than lay people, and when given the opportunity sought information that was logically relevant to their decision. These results suggest that magistrates can differentiate between high- and low-quality expert opinions, but it is unclear whether the information they need for the task is actually available for use during trials.
... Courts worldwide have been influenced by the mistaken and inaccurate opinions of expert witnesses. False and flawed expert testimony has contributed to approximately 60% of known wrongful convictions identified by the United States Innocence Project (Garrett, 2017;Garrett & Neufeld, 2009), one third (31%) of 71 Australian exonerations (Dioso-Villa, 2015) and one quarter (24%) of exonerations in the United States National Registry of Exonerations (Gross & Shaffer, 2012). Indeed, discredited and unvalidated forms of expert evidence continue to be admitted and relied on by courts despite authoritative criticism (National Research Council, 2009;PCAST, 2016;Skene, 2018). ...
Preprint
Expert opinions admitted by courts are not always valid and reliable. However, we know little about how indicators of opinion quality affect the persuasiveness of an expert. In this study 25 Australian magistrates and 22 jury-eligible lay-people rated the persuasiveness (via credibility, value, and weight) of either a high or a low quality expert opinion. Opinion quality was determined using attributes specified in the Expert Persuasion Expectancy (ExPEx) framework: Field, Specialty, Ability, and Trustworthiness. Both magistrates and jurors were significantly more persuaded by the high than the low quality expert opinion. Magistrates were also significantly more sceptical of the expert opinion than lay-people, and when given the opportunity sought information that was logically relevant to their decision. These results suggest that magistrates can differentiate between high and low quality expert opinions, but it is unclear if the information they need for the task is actually available for use during trials.
Article
The fallible nature of the criminal justice system continues to see judicial errors—that is, wrongful convictions and erroneous acquittals—undermine its integrity, efficacy, and legitimacy. Public perceptions of judicial errors are important contributors to criminal justice policy and reforms. The current study utilizes the 2016 Australian Survey of Social Attitudes (AuSSA) dataset to examine public attitudes toward judicial errors. It applies Herbert Packer’s crime control and due process models to understand how concerns around procedural safeguards and public safety are associated with public perceptions toward judicial errors. Packer’s model has been challenged by studies, which theorize that the models are not mutually exclusive. Yet, they have not been empirically tested in this context, which is a gap this study seeks to fill. Findings show that due process and crime control concerns shape public attitudes toward wrongful convictions and challenge the notion that Packer’s models be applied on a continuum.
Chapter
Legal safeguards, along with evidentiary rules and procedures, are intended to ensure a fair trial for criminal defendants and to avoid the conviction of the innocent. In this chapter, we focus on admissibility safeguards and two educational corrective safeguards—judicial instructions and expert testimony—that provide decision-makers with information about the reliability of eyewitness identification evidence. We briefly provide background information about wrongful convictions and the science of eyewitness evidence to give the relevant context before presenting a cross-national comparison of admissibility safeguards and educational corrective safeguards in Australia, Canada, and the USA. We also review the empirical studies that have tested the effectiveness of judicial instructions and expert testimony in cases with eyewitness identification evidence. Based on this interdisciplinary analysis, we conclude that courts are too permissive in admitting eyewitness evidence and are generally too reliant on educational corrective safeguards, despite the large body of empirical work demonstrating their limited effectiveness. Finally, we analyze the strengths and weaknesses of the two educational corrective safeguards and outline directions for future empirical research.
Article
While criminal justice systems are increasingly prepared to identify and overturn wrongful convictions, the focus of limiting errors has centered upon commonly accepted “causal factors” of wrongful conviction. Importantly, there has been limited work that has explored the question of who is most vulnerable to fall victim to this error. We explore three landmark case studies highlighting wrongful convictions in Australia where race, racialized policing, or racism were crucial yet unresolved issues leading to an erroneous conviction. These cases and the absence of resolutions of these racialized issues in these convictions typify the inadequacies of Australian approaches to wrongful conviction. We argue that to achieve justice in Australia we must not be limited to the causal factors that have come to define American innocence and should support greater acknowledgment of how race and ethnicity influence wrongful conviction.
Article
Digitale bevis betraktes gjerne som objektive og pålitelige bevis. I denne artikkelen settes søkelyset på hvor gyldig slutningen egentlig er. Vet vi egentlig nok til å kunne utelukke systematiske feil i vurderingen av noen bevistyper som f.eks. digitale bevis ved behandlingen av gjenåpningsbegjæringer? En analyse av Gjenopptakelseskommisjonens gjenåpnede saker fram til august 2019, samt et utvalg av 100 ikke gjenåpnede saker, viser at digitale bevis er tatt i betraktning i 6 av de 307 gjenåpnede sakene. Analysen av de ikke gjenåpnede sakene viser en langt større forekomst av digitale bevis, og at begrunnelsen domfelte oftest gjør gjeldende i gjenåpningsbegjæringen, er at retten har misforstått eller feilvurdert det digitale beviset.
Article
Wrongful convictions and other criminal justice system errors can be seen as "organizational accidents" in which small mistakes (no one of which would suffice to cause the event) combine with each other and with latent defects in the criminal justice system to create disasters. Employing this conception of error in a consistent routine of examination of wrongful convictions, near misses, and other errors can increase the impact of the lessons of error, mitigate the fragmentation of the criminal justice system, and lay the foundation, as it has in medicine and aviation, for the creation of a "culture of safety."
Appeal after 41 years
  • Mark Russell
Mark Russell, 'Appeal after 41 years', Herald Sun (Melbourne), 29 June 2002, 17.
Cleared at last after 44 years', Weekend Australian (Canberra)
  • Kathryn Shine
Kathryn Shine, 'Cleared at last after 44 years', Weekend Australian (Canberra), 2 April 2005, 1.
A NSW woman framed for attempting to murder her husband just won $2.3 million in compensation', Business Insider/a-nsw-woman-framed-for-attemp ting-to-murder-her-husband-just-won-2-3-million-in-compensation
  • Simon Thomsen
Simon Thomsen, 'A NSW woman framed for attempting to murder her husband just won $2.3 million in compensation', Business Insider, 24 August 2015 <http://www.businessinsider.com.au/a-nsw-woman-framed-for-attemp ting-to-murder-her-husband-just-won-2-3-million-in-compensation-2015-8>.
It was subsequently increased to $4 million to include interest: see above n 4
  • Ibid
Ibid. It was subsequently increased to $4 million to include interest: see above n 4.
Wrongful Conviction and Criminal Justice Reform: Making Justice (Routledge, 2014)Learning from Error in American Criminal Justice
  • M James
  • Doyle
Julia Carrano (eds), Wrongful Conviction and Criminal Justice Reform: Making Justice (Routledge, 2014); James M Doyle, 'Learning from Error in American Criminal Justice' (2010) 100(1) Journal of Criminal Law and Criminology 109; See also Erik Luna, 'System failure' (2005) 42(4) (2005 Fall) American Criminal Law Review 1201; John P Van Gigch, Applied General Systems Theory (Harper & Row, 2 nd ed, 1978).
Drift into Failure: From Hunting Down Broken Components to Understanding Complex Systems (Ashgate, 2011) For applications to wrongful convictions: see Luna, above n 99; see also Doyle, 'Learning from Error
  • Sidney See
  • Dekker
101 See generally Sidney Dekker, Drift into Failure: From Hunting Down Broken Components to Understanding Complex Systems (Ashgate, 2011). For applications to wrongful convictions: see Luna, above n 99; see also Doyle, 'Learning from Error', above n 99.
Accidents in High-Risk Systems' (1994) 1 Technology Studies 1; Charles Perrow, Normal Accidents: Living with High-Risk Technologies Dekker, above n 100
  • See Charles Perrow
See Charles Perrow, 'Accidents in High-Risk Systems' (1994) 1 Technology Studies 1; Charles Perrow, Normal Accidents: Living with High-Risk Technologies (Princeton University Press, 1999); Dekker, above n 100; James T Reason, Managing the Risks of Organizational Accidents (Ashgate, 1997).
Learning from Error in the Criminal Justice System: Sentinel Event Reviews
  • John Doyle
John Doyle, 'Learning from Error in the Criminal Justice System: Sentinel Event Reviews' in Mending Justice: Sentinel Event Reviews (National Institute of Justice, 2014).