Not Every Allegation is True – Wrongful Convictions
The article Not Every Allegation is True – Wrongful Convictions is written by Kate Da Costa, Partner, Doogue + George Defence Lawyers.
Kate is one of our Partners and is part of our Sunshine team. She regularly represents clients at the Sunshine Magistrates’ Court for various criminal legal issues.
Kate has been working exclusively in the field of criminal law. She has experience in all Victorian criminal law jurisdictions including in the High Court of Australia.
“Better that ten guilty persons escape than that one innocent suffer.”1
It is an inherent and possibly incurable flaw of every criminal justice system that accused people are sometimes found guilty of offences they did not commit.
With legal systems not adequately designed to accommodate those with cultural or language barriers, or suffering mental health or spectrum disorders, an accused person may also plead guilty to a crime they did not commit.
Rates of Wrongful Conviction
The expression ‘wrongful conviction’ can encompass a broad range of outcomes that are a miscarriage of justice, but here will be limited to refer to those circumstances where a person is convicted and punished for a crime that they did not commit.
While in Australia a wrongful conviction can result in an accused person serving an unjust term of imprisonment, the consequences for an individual in a country with the death penalty are, of course, final. Research for the Proceedings of the National Academy of Sciences of the United States of America2 found that:
Maintaining One’s Innocence in Custody
In Victoria, from the outset those prisoners who seek to maintain their innocence whilst undergoing sentence are denied certain privileges.
They may be prevented from moving to a less restrictive correctional facility which would allow for improved and longer family visits; so important to mental health and well-being.
The prisoner will also be prevented from participating in programs which are predicated on an admission of guilt. As such, the prisoner is regarded as being resistant to treatment and rehabilitation, and a risk of recidivism; thereby potentially denying them access to release from custody on parole.
Long Term Effects of a Wrongful Conviction
Freedom from incarceration for those fortunate enough to be ultimately exonerated, and potentially the recipient of financial compensation, has unsurprisingly proven not to be a cure-all for harm caused.
Research indicates that:
The Effect of the Miscarriage of Justice on the Community
For each prisoner serving a sentence for a crime they did not commit, justice is denied to the family of any victim. Unmeasurable harm can also be caused to the loved ones of those falsely accused.
Further, for each wrongful conviction, there is a potential that the true offender continues to remain in the community, free to commit further offences.
Right of Subsequent Appeals in Victoria
In November this year, Royal Assent was given to the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic). The Act provides one step towards enabling a more expedient process to redress a wrongful conviction.
The Act allows that pursuant to section 326A of the Criminal Procedure Act 2009:
Right of second or subsequent appeal against conviction
- A person convicted of an indictable offence by an originating court who—
- has exhausted the person’s right to appeal against conviction under Division 1 of Part 6.3; or
- has previously appealed under this Part but leave to appeal was not granted or the appeal was dismissed, in whole or in part—
may appeal to the Court of Appeal against the conviction if the Court of Appeal gives the person leave to appeal.
Accordingly, rather than being forced down the rather tortuous path of petitioning the State Attorney-General for mercy, a prisoner who has fresh and compelling evidence to persuade the Court of Appeal that it is in the interests of justice to grant leave to appeal is now able to bring a subsequent appeal against conviction in the Supreme Court of Victoria.
Section 326D of the Criminal Procedure Act 2009 allows for:
Determination of second or subsequent appeal against conviction
- On an appeal under section 326A, the Court of Appeal must allow the appeal against conviction if it is satisfied that there has been a substantial miscarriage of justice.
- In any other case, the Court of Appeal must dismiss an appeal under section 326A.
It is envisaged that the reform will allow substantial miscarriages of justice to be dealt with transparently through the courts. The creation of a subsequent right of appeal in Victoria is in line with reforms already in place in Tasmania, South Australia, and under consideration in Western Australia.
It will be available in exceptional circumstances only.
The Importance of Expert Legal Representation in the First Instance
There is no doubt that in some cases a wrongful conviction may occur as a result of inadequate legal representation. For the vast majority of criminal defence lawyers, this may perhaps be the most egregious injustice.
If you are faced with a false allegation, you are wise to engage an experienced criminal lawyer to represent you from the outset. As a distinguished Director of a highly regarded criminal defence law firm is known to say: ‘What price can you put on not going to gaol?’
 Commentaries of the Laws of England, J.B. Lippincott Co., Philadelphia, 1893.
 Rate of False Conviction of Criminal Defendants who are Sentenced to Death by Samuel R Gross, Barbara O’Brien, Chen Hu and Edward H Kennedy dated 20 May 2014
 Compensation for Wrongful Conviction by Adrian Hoel, Australian Institute of Criminology dated 1 May 2008
Date Published: 2 March 2021