Efficient and accessible pathways to challenge wrongful convictions

In 2023, Irving’s suit for malicious prosecution was successful, following a 25-year battle for compensation after his release. Why did it take so long for Mr Irving to be compensated for his wrongful conviction? Because reaching the point of seeking compensation requires an applicant to first convince a court to acknowledge they were wrongly convicted. Additionally, there are huge disparities between Australian states and territories regarding the ability to get this acknowledgement.

In all Australian states and territories, an applicant can usually ask for one appeal against their conviction. If that fails, they could try their luck with the High Court of Australia. However, those are courts of error. It’s not their role to re-hear the case from scratch, but defendants can introduce fresh evidence that could not reasonably have been presented at the original trial on appeal, though not in the High Court of Australia. Primarily, the High Court of Australia is looking to see if the appeal court made an error based on information that was available to them at the time of the original trial.

What’s new across Australia, except in NSW and the NT, is that a person can now ask for a second appeal from the state or territory appeal court, or more, if there is fresh and compelling evidence that proves a miscarriage of justice occurred.

Still, while direct access to a second or subsequent appeal sounds good in theory, appeals are expensive to run and most people don’t have that kind of money after the trial and first appeal. Before returning to court, there is also the challenge of securing fresh evidence and access to legal help to prepare an application for appeal.

An applicant can seek a second appeal, or they could ask the government to send their case back to the court of appeal. Free pathways promote access to justice, but these decisions are made without transparency around the grounds leading to that decision.

NSW different to other states and territories

If someone is convicted in NSW or the NT, they have one opportunity to make a direct request to the state or territory appeal court to review their conviction. In lieu of a second or subsequent appeal in NSW, they could ask the government to refer their case back according to the Crimes (Appeal and Review) Act 2001. Or, in NSW, a person could access a unique, free pathway back to appeal.

That pathway allows a person to make an application to the NSW Supreme Court for an inquiry or referral back to the appeal court – in which case, decisions are public. The Supreme Court judge decides that application the same way as a government decision-maker decides a review application made to them. That is, the Supreme Court decision-maker isn’t acting like a judge and the application isn’t heard as an appeal. It is all administrative. Section 78(1) of the Crimes (Appeal and Review) Act permits a convicted person to apply to the Supreme Court of NSW for an inquiry into a conviction or sentence. If it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case, s 79 empowers the Supreme Court, on considering such an application or of its own motion, to either:

(i) direct that an inquiry be conducted by a judicial officer into the conviction or sentence (s 79(1)(a)); or

(ii) refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) (s 79(1)(b)). On receiving a reference, the court is to deal with the case in the same way as if the convicted person had appealed against conviction or sentence (s 86).

In circumstances including where it does not appear that there is a doubt or question as to convicted person’s guilt, the Supreme Court may refuse to consider the application (s 79(3)). The registrar of the Supreme Court must report to the Minister as to any action taken under s 79, including a refusal to consider the application (s 79(5)).

Compare that to the United Kingdom and New Zealand, both of which have independent bodies called Criminal Cases Review Commissions that investigate claims of wrongful conviction and refer cases back to the appeal courts. Scotland has its own version.

Trial and error

As covered in LSJ, Kathleen Folbigg was pardoned in June 2023 and later acquitted after 20 years in jail. NSW Attorney General Michael Daley announced that Folbigg had been pardoned and would not serve the remainder of her 30-year sentence for the murder of three of her infant children and the manslaughter of a fourth child.

The preliminary findings of a second judicial inquiry that introduced fresh evidence led by former NSW Chief Justice Tom Bathurst found that there was reasonable doubt as to Folbigg’s guilt for each of the offences.  The possibility of medical causes of the deaths challenged the coincidence-based evidence that had formed the basis of the 2003 Crown case, and interpretation of her diary as confessions was also challenged on the basis of psychological evidence.

At the time of Folbigg’s pardon, Professor David Hamer of the University of Sydney Law School and Dr Andrew Dyer of the Sydney Institute of Criminology at Sydney Law School, wrote: “The Folbigg case is yet another demonstration that Australia needs a Criminal Cases Review Commission (CCRC) – a statutory body working at arm’s length to investigate claims of wrongful conviction.

A CCRC would have the powers and resources to investigate defendants’ claims to have been wrongfully convicted. Claims found to have substance can be referred back to the court of criminal appeal. Standing CCRCs have proven to bring a cost-effective improvement to the accuracy of criminal justice systems overseas.

Preferably, it would be a single federal body covering all jurisdictions, or failing that, one for each jurisdiction.”

The criminal justice system, they argued, ought to recognise the “statistical certainty of the occasional wrongful conviction” and address it systemically. His support for a CCRC was not a novel idea. The Australian Law Council had put their support behind a federal CCRC in 2012. In 2022 High Court Justice Michael Kirby repeated his support for this avenue, and the Sydney Institute of Criminology has also called for an Australian CCRC.

Professor of Evidence Law at Sydney Law School, David Hamer focuses his research most thoroughly on the intersection of evidence law within the context of proof, which he says is “largely unregulated”. Aspects of his work include looking at wrongful convictions where factually, the defendant isn’t guilty, and conversely, sexual assault cases where the defendant might be guilty but there is insufficient evidence to establish proof beyond reasonable doubt.

Hamer says most wrongful convictions are hidden, with the exception of highly publicised exonerations. Additionally, most wrongful conviction cases that gain attention are murder convictions, as opposed to the many cases of minor convictions that are not contested despite representing a failure of the criminal justice system to deliver a fair outcome.

“Some of my work looks at the function of the criminal trial and criminal justice beyond just convicting the guilty and acquitting the innocent,” he explains. “I’m pretty dubious about how achievable that is, because we don’t know for sure whether the convicted are actually guilty.”

This comes down to the heavy dependence on available evidence, and the factors a jury consider pertinent, he says.

“The criminal procedure is more about pacifying the community,” he says. “The focus of the criminal justice system is very much on procedure, and the objective to the procedures are, to some extent, trying to ensure factual accuracy, but also just providing reassurance that the state is approaching this in a proper manner.”

Hamer points to empirical studies in the US that looked into historical convictions where DNA profiling was able to take place once that technology was developed. That study indicated that between 5 and 15 per cent of convictions were wrongful in light of testing technology.

“Our system works quite a bit better than the US, but even then, that only tests a certain kind of conviction,” he says.

The reasons that minor convictions go under the radar of appeals and investigations are layered, he explains.

“The more serious the case, the more prominent the safeguards and your access to legal aid increases. You don’t really get legal aid unless you face a possible prison sentence. There’s this notion of two tiers of justice, where the Magistrates Court offers a kind of a mass volume, but lower quality criminal justice. If you’re facing minor charges, you might reasonably, quite rationally, take the view that ‘I’ll just plead guilty, because then it’ll go away. If I defend this, I’m looking at a potentially a higher sentence. I have to invest a lot of time and money in it. I couldn’t be bothered with that.’”

NSW ‘was a world leader’

Hamer tells LSJ, “New South Wales started introducing reforms back in the 19th century and over time, these reforms evolved into two different avenues effectively. Traditionally, the only avenue that a convicted defendant had was to petition the Crown, the executive, for a pardon. A regular first appeal was introduced by legislation a bit over 100 years ago in New South Wales, and a couple of different avenues have developed. You can petition the executive for a pardon still, but now you can petition the executive for a judicial inquiry, which happened twice with Folbigg and it’s happening with the Croatian Six. Alternatively, the executive can refer the case back to the Court of Criminal appeal for further appeal.”

In NSW, a defendant who claims to be wrongfully convicted can apply to a single judge in the Supreme Court. In that case, Hamer explains, “the judge isn’t acting judicially. The judge is effectively executing powers delegated from the executive. So the judge is acting administratively, which does make a difference, because that means that the judge has a lot more discretion if they’re not acting judicially, and they can pretty much dismiss the application out of hand without even giving proper reasons because that’s the freedom that they have.”

Hamer concludes, “NSW, even though their approach is quite old fashioned – well over 100 years ago – seems to work quite well in practice. [However,] the model I prefer is the CCRC, which started in 1997 under a 1995 Act in England, Wales, and Northern Island. There’s been one in NZ since 2020, and Canada was planning to establish something similar. The CCRC has investigatory powers to commission expert reports, get police to interview witnesses, order production of documents from public and private bodies, so they have the powers to come up with fresh evidence. In the UK, they have rejected several applications and not looked at cases properly, so it isn’t perfect. That’s largely due to a lack of resources and the public funding required to address the increasing number of applications.”

While there have been criticisms that a CCRC would draw funds away from Legal Aid and other government-funded organisations, Hamer refutes this.

“It’s very cheap to run a CCRC, a few million dollars a year, and it would handle dozens, perhaps hundreds, of applications for that money. NSW is already spending millions and millions of dollars on inquiries. Each case costs potentially millions of dollars. David Eastman has had two inquiries challenging his conviction, with his second inquiry being successful, and that cost $12 million. The first Folbigg enquiry cost the NSW government $2.4 million. It’s not efficient at all, whereas the CCRC is. It costs about $100,000 a year to keep someone in prison so if they shouldn’t be there, it’s more efficient to set them free.”

Hamer adds, “I think the state has an obligation to consider that, given that the way the system is set up, there’s an expectation that some defendants will be wrongfully convicted; that’s built into the way the system works because absolute certainty isn’t achievable. It isn’t demanded. The consequence of that is that you’d expect a certain percentage of convictions to be mistaken, and so the state has an obligation to look after these people because they’re being sacrificed to pacify the public.

“When things go wrong, there’s a system in place. It makes mistakes, but we’ve still got to convict people. There’s an obligation by the public, by the government, by the state, to try and confirm the guilt, or give them the opportunity to prove that they’re actually not guilty.”