Speaker: Professor David Hamer, The University of Sydney
Commentator: Ruth O'Gorman KC, Higgins Chamber
Chair: The Hon Justice Soraya Ryan, Supreme Court of Queensland
This paper provides an overview of wrongful convictions in Australia, how they are treated by current law and the prospects for reform. It outlines different kinds of wrongful convictions, distinguishing in the process between the notion of legal innocence and factual innocence. It provides an overview of known wrongful convictions and offers reflections on the far larger number of others that remain hidden. Taking account of the limitations on our knowledge, it also explores the causes of the various kinds of wrongful convictions. Finally, it suggests a number of reforms that may usefully assist in both the avoidance and correction of wrongful convictions. In particular, it considers whether Australia should adopt a Criminal Cases Review Commission, following England (1997), Scotland (1999), New Zealand (2020), and (in the near future) Canada.
In terms of detail, the paper examines the regular conviction appeal process, the new subsequent appeal legislation (SA, Tas, Vic) and post-appeal reviews (eg, ACT, NSW). It also touches on a number of recent high-profile cases, including Pell (2020) 268 CLR 123, Neill-Fraser [2021] TASCCA 12, Roberts [2020] VSCA 277, Van Beelen (2017) 262 CLR 565, and Folbigg (2nd inquiry, 2022-23).
