Login
Answers to Australia’s wrongful convictions found in Canada
In analysing the ongoing efforts by the Canadian legal profession to review and to address wrongful convictions, particularly with the establishment of an independent body, experts back in Australia have identified where this country has gone wrong.
Naomi Neilson
In a submission to Canada’s planned Criminal Case Review Commission, adjunct associate professors and lawyers Dr Robert Moles and Bibi Sangha have highlighted the shortfalls that exist in Australia’s legal system that allows so many wrongful convictions to take place, including a lack of its own laws and review body.
D Moles said the Canadian review body submission provided them with the opportunity to reflect on Australia’s progress, where they realised certain jurisdictions are still very behind: “In some states, there are people languishing in jail for crimes that they didn’t do and with no possible recourse to get themselves out.”
Review bodies already exist in the UK and New Zealand, which run independently from the police and judicial system but hold the power to review evidence and advise courts of possible wrongful convictions. While there is currently no commission in Australia, Dr Moles and Associate Professor Sangha were instrumental in the establishment of a statutory right of appeal laws in three states.
“Before these laws existed, new evidence could come to light suggesting a conviction was wrong, but not much could be done about it if a person had exhausted all their avenues of appeal,” Dr Moles said. “It was up to the state’s Attorney-General to send the case back to court and as there were no guidelines, applications could be rejected for any reason or for no reason at all.”
Under the new statutory right of appeal laws in South Australia, Tasmania and in Victoria, if there is fresh and compelling evidence that could indicate a wrongful conviction, the person has the right to go before a court to provide new evidence.
Henry Keogh was the first person to use the law in South Australia once it was passed in 2013. He spent 21 years in prison for the murder of his fiancé based on forensic evidence that was eventually determined to be false and misleading.
While Western Australia and the ACT have indicated plans to follow the three states by passing similar laws, NSW, Queensland and the Northern Territory have yet to introduce any such legislation. Dr Moles and Associate Professor Sangha have called on these states to rectify this immediately.
One case that could benefit is that of Kathleen Folbigg, who was convicted in NSW for murdering three of her infant children in 2003. In March this year, 90 eminent scientists signed a petition calling for her release, highlighting that genetic and medical explanations could account for each of the children’s deaths.
“Everyone has the right to appeal should compelling evidence come to light and one’s location, be it in NSW or South Australia, should not have a bearing on if that right is available to them,” Associate Professor Sangha said.
In their submission, Dr Moles and Associate Professor Sangha said an ideal system would consist of a Criminal Case Review Commission that operates in tandem with the right of appeal always and existing innocence projects. A “perfect system” could be made up of lessons from Canada, the UK, New Zealand and Australia.
“No system is infallible, but Canada has the opportunity to learn from other jurisdictions and make a very informed decision,” Dr Moles said. “I just hope that Australia takes note.”
The Lawyers Weekly Legal Firm of Choice Survey is now open, giving legal professionals the opportunity to confidentially say what areas their firm is responding well to - and where they could improve.
The annual survey, which is partnered by Momentum Intelligence, also forms the basis for the Top 25 Attraction Firms ranking, identifying the firms legal professionals most want to work for. To take part in the survey, click here. The survey will close on 15 September.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
