Imprisoning the innocent: The causes of wrongful convictions in Australia
<p><em>It is better that ten guilty persons escape than that one innocent suffer’.</em></p>
<p>These words of 18<sup>th</sup> century English jurist William Blackstone resonate just as loudly today as they did back then in relation to the magnitude of the injustice created by imprisoning innocent people.</p>
<p>But what do we know about the causes of <a href="https://www.sydneycriminallawyers.com.au/blog/wrongful-convictions-in-australia/">false convictions in Australia</a>, and what can be done to achieve justice for innocent people who are languishing behind bars?</p>
<p><strong>What is a wrongful conviction?</strong></p>
<p>A ‘wrongful conviction’ occurs when a person is convicted of crime they did not commit.</p>
<p>Such convictions amount to a ‘miscarriage of justice’, although that term encompasses a far broader range of circumstances than just a wrongful conviction, including the absence of a fair trial and the admission of unfairly prejudicial evidence.</p>
<p><strong>Can the percentage of wrongful convictions be estimated?</strong></p>
<p>The short answer is no – it is impossible to give a realistic estimate of innocent people who are convicted, despite <a href="https://www.researchgate.net/publication/228207991_Innocents_Convicted_An_Empirically_Justified_Factual_Wrongful_Conviction_Rate">various researchers in the United States and other nations</a> attempting to do so.</p>
<p>This is due to a range of factors, not the least of which is that many wrongful convictions will never come to light, with those sentenced to imprisonment languishing behind bars despite their innocence.</p>
<p>Other factors are that people who are innocent may nevertheless plead guilty – whether to the charges they are facing or to downgraded charges – in order to avoid the risk of a lengthier conviction after a hearing or trial.</p>
<p>Some defendants may be pressured into pleading guilty by their lawyers or as a result of their inability to afford a lengthy hearing or trial. Others may simply wish to ‘get it over with’ and avoid a trial and all the associated stress, anxiety, delay and uncertainty it causes to themselves and their families.</p>
<p>Others may fall victim of inadequate legal representation during the hearing or trial, or the admission of false or mistaken evidence such as <a href="https://www.sydneycriminallawyers.com.au/blog/it-was-him-problems-with-identification-evidence/">notoriously unreliable identification evidence</a>.</p>
<p>So it is not sensible or realistic to give estimate the number or percentage of people convicted despite the fact they innocent.</p>
<p><strong>Notable cases of wrongful convictions in Australia</strong></p>
<p>That said, there are <a href="http://classic.austlii.edu.au/au/journals/FlinLawJl/2015/6.pdf">at least seventy high-profile, reported cases of wrongful convictions in Australia</a>, from <a href="https://www.sydneycriminallawyers.com.au/blog/wrongful-convictions-in-australia/">Lindsay Chamberlain, to the Mickelberg brother, John Button and Andrew Mallard</a> – all of whom were eventually released from prison (except Peter Mickelberg who died behind bars) after it became clear they should not have been convicted in the first place.</p>
<p><strong>Causes of Wrongful Conviction</strong></p>
<p>While the reasons for wrongful convictions are often complex and multi-faceted, the <a href="http://classic.austlii.edu.au/au/journals/CICrimJust/2005/26.html">research of Professors Juliette Langdon and Paul Wilson</a> into reported cases in the United States suggests that:</p>
<ul>
<li>50% were signified by over-zealous and/or unprofessional police investigations,</li>
<li>44% were based on profiling and weak circumstantial evidence,</li>
<li>22% of cases exhibited incompetence in the investigation, with 12.5% of those involving criminal conduct by police, and</li>
<li>22% involved discredited expert evidence.</li>
</ul>
<p>The researchers found that a single focus, or ‘tunnel vision’ in the investigation process led to innocent people being convicted.</p>
<p>Professors Keith Findley and Michael S Scott from the University of Wisconsin similarly found tunnel vision to be a significant contributing factor, describing it as where investigators “focus on a suspect, select and filter the evidence that will ‘build a case’ for conviction, while ignoring the suppressing evidence that points away from guilt”.</p>
<p>However, <a href="https://www.sydneycriminallawyers.com.au/blog/how-reliable-is-identification-evidence/">unreliable evidence such as identification evidence</a> – especially where it relates to the identification of minority groups – and the misleading presentation of forensic evidence have also been identified as significant contributing factors.</p>
<p>Indeed, the majority of <a href="https://www.sydneycriminallawyers.com.au/blog/how-the-innocence-project-is-helping-those-wrongly-convicted-of-a-crime/">the more than 300 people exonerated through the Innocence Project</a> in the United States were set free after they were convicted solely or primarily on identification evidence, when DNA evidence from the crime scene later established they were not the perpetrators.</p>
<p>Some of these people spent decades behind bars before their release, and a number were on death row.</p>
<p><strong>What can be done?</strong></p>
<p>On a broad level, it is fundamental that the law maintains the presumption of innocence – which is a fundamental principle that has been <a href="https://www.sydneycriminallawyers.com.au/blog/lawyers-must-fight-for-human-rights/">significantly curtailed by successive state and federal governments in Australia</a>.</p>
<p>The right to a lawyer in criminal cases – <a href="https://www.sydneycriminallawyers.com.au/blog/would-you-rather-be-suspected-of-a-crime-in-the-us-or-australia/">something which is guaranteed throughout the United States but not in Australia</a> – is also important in ensuring that defendants are not left to represent themselves against a well-funded, professional prosecution, and do not feel compelled to plead guilty for financial reasons.</p>
<p>The United States has a robust Innocence Project which reviews selected cases of alleged wrongful imprisonment. And while there are <a href="http://www.bohii.net/">small Innocence Projects in Australia</a>, they have nowhere near the same resources.</p>
<p>Funding Innocence Projects could provide an avenue for those who have been wrongly convicted and exhausted their regular avenues of appeal to achieve justice.</p>
<p>England, Wales and Northern Ireland have a Criminal Cases Review Commission (CCRC) whose role is to review the cases of alleged wrongful convictions, investigate them and, where appropriate, act to ensure justice.</p>
<p>A <a href="https://www.sydneycriminallawyers.com.au/blog/australian-body-needed-to-investigate-wrongful-convictions/">similar body in Australia</a> would also assist in promoting justice for those who have been wrongly convicted and exhausted their appeals.</p>
<p><strong>Been wrongly convicted?</strong></p>
<p>If you or a love-one has been wrongly convicted of a criminal or traffic offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an <a href="https://www.sydneycriminallawyers.com.au/services/appeals/">expert appeal lawyer</a> who can advise you of your appeal rights and the best way forward.</p>
<p>If your loved-one is in prison, we offer <a href="https://www.sydneycriminallawyers.com.au/fixed-fees/">fixed fees for prison visits</a> throughout New South Wales, as well as conferences via audio-visual link.</p>
<p><em>Written by Ugur Nedim and Jarryd Bartle. Republished with permission of <a href="https://www.sydneycriminallawyers.com.au/blog/imprisoning-the-innocent-the-causes-of-wrongful-convictions-in-australia/">Sydney Criminal Lawyers.</a> </em></p>
