Can I send you an article’s full text and you summarize it in the best way possible which will help me memorize for my exam thats in a few hours

WRONGFUL CONVICTION IN AUSTRALIA
Lynne Weathered*†
I. INTRODUCTION
Australia’s criminal justice system is modern and sophisticated. A
combination of common law and legislative provisions in each state
aims to find an appropriate balance between police investigative powers
and individual liberty. Similarly, many mechanisms exist in an attempt
to ensure the fundamental right to a fair trial in Australia’s adversarial
system. Appellate avenues enable consideration of potential errors at
trial and judges are concerned to correct miscarriages of justice. The
system is good, but it is by no means perfect. One of the areas where the
Australian criminal justice system lags behind the United Kingdom,
Canada, Norway and the United States is in facilitating the effective
investigation and correction of wrongful conviction. While a relatively
small number of demonstrated wrongful convictions have occurred in
Australia, there are undoubtedly others yet to be uncovered and
rectified. More unfortunately, there are wrongful convictions that will
never be corrected, and even for those no longer in prison, the pain and
stigma of a wrongful conviction can last a lifetime.
In the United States, the work of innocence projects and other
organizations have highlighted the problem of wrongful conviction for
over twenty years.1
 The number of DNA exonerations in the United
States has grown at a rapid pace. According to the Innocence Project
website, between 1989 and 1999 there were sixty-seven DNA
exonerations. This number increased to 234 in the thirteen years from
2000 to 2012. In 1995, a Criminal Cases Review Commission (CCRC)
was established for England, Wales, and Northern Ireland to address the
 * Lecturer in Law at Griffith Law School and the Director of the Griffith University Innocence
Project. The author wishes to thank Louise O’Neil for her extensive research assistance with this Essay.
The views expressed in this Essay are those of the author and do not necessarily represent the views of
the Griffith University Innocence Project or Innocence Network.
 † This article is being published as part of a symposium that took place in April 2011 in
Cincinnati, Ohio, hosted by the Ohio Innocence Project, entitled The 2011 Innocence Network
Conference: An International Exploration of Wrongful Conviction. Funding for the symposium was
provided by The Murray and Agnes Seasongood Good Government Foundation. The articles appearing
in this symposium range from formal law review style articles to transcripts of speeches that were given
by the author at the symposium. Therefore, the articles published in this symposium may not comply
with all standards set forth in Texas Law Review and the Bluebook.
 1. Reportedly 307 exonerations occurred between 1989 and 25 May 2013. See INNOCENCE
PROJECT, http://www.innocenceproject.org/index.php. Other early organizations to undertake this
wrongful conviction work include Centurion Ministries, Inc., founded by Jim McCloskey in Princeton,
New Jersey in 1983. See http://www.centurionministries.org/about/ (last visited 3 December 2012).
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problem of wrongful conviction.2
 Norway has also now established a
CCRC. Canada edged closer to its own CCRC style body when, in 2002,
Canada expanded its pardon avenues and subsequently established the
Criminal Conviction Review Group to investigate and refer wrongful
conviction claims to Canadian courts.3
 Australia, on the other hand, has
remained largely resistant to reform of its investigation and correction of
wrongful conviction.
That is not to say no change has occurred. In New South Wales and
Queensland, DNA innocence testing has been introduced in either
legislative or guideline form. In 2013, South Australia passed legislation
allowing for a second or subsequent post conviction appeal if the court
is satisfied that in the interests of justice, fresh and compelling evidence
should be considered. However, it is unclear why such reform has been
sluggish in its appearance and further, why there has not been more
significant reform in this area across the country. Whatever the reason,
the relative stagnation in this area has ultimately impacted the Australian
system’s ability to address, with adequacy, the needs of those who are
convicted but are innocent. The problem of wrongful conviction is now
being more widely acknowledged at an international level.4
 While the
prevalence of wrongful conviction may differ, no one country is
immune to the problem, certainly not Australia.
To broadly address some of considerations in regard to wrongful
conviction in Australia, this Essay begins by briefly outlining the
structure of the Australian criminal justice system. This Essay then
considers aspects of Australia’s criminal justice processes that may
influence the prevalence of wrongful conviction. Then, this Essay
discusses some known cases and causes of wrongful conviction. In its
final Part, this Essay details a number of difficulties associated with the
currently available mechanisms for the investigation and correction of
wrongful conviction, and makes some recommendations in this regard.
 2. Criminal Cases Review Commission, MINISTRY OF JUSTICE, http://www.justice.gov.uk/
about/criminal-cases-review-commission (last visited May 25, 2013).
 3. Criminal Conviction Review, DEPARTMENT OF JUSTICE CANADA,
http://www.justice.gc.ca/eng/pi/ccr-rc/index.html (last updated Apr. 30, 2013).
 4. For example, twenty countries were represented at the 2011 Innocence Network in
Cincinnati, Ohio. Nancy Petro, Wrongful Conviction and Innocence Work Have No Boundaries, THE
WRONGFUL CONVICTIONS BLOG (Nov. 1, 2012), http://wrongfulconvictionsblog.org/2012/11/01/
wrongful-conviction-knows-no-boundaries/. Examples of international perspectives on wrongful
conviction include: MIRANDA JOLICOEUR, INTERNATIONAL PERSPECTIVES ON WRONGFUL
CONVICTIONS: WORKSHOP REPORT, NAT’L INST. OF JUSTICE, 2010, available at
http://www.nij.gov/nij/topics/courts/sentencing/international-perspective-on-wrongful-convictions.pdf;
C. RONALD HUFF & MARTIN KILLIAS, WRONGFUL CONVICTION: INTERNATIONAL PERSPECTIVES ON
MISCARRIAGES OF JUSTICE (2008); BIBI SANGHA ET AL., FORENSIC INVESTIGATIONS AND
MISCARRIAGES OF JUSTICE (2010).
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II. SOME FACETS OF THE AUSTRALIAN CRIMINAL JUSTICE SYSTEM
Following colonization (and the controversial classification of
Australia as a ‘settled’ country) Australia’s criminal justice system
was—both substantively and procedurally—inherited and adapted from
England. Australia today remains a common law nation with an
adversarial criminal justice system. Australia’s constitution, the
Commonwealth of Australia Constitution Act 1900, in combination with
the state and territory constitutions, provide the boundaries under which
the six states, two territories, and the federal government can legislate in
regard to criminal matters. The Commonwealth Constitution provides
the federal government with extremely narrow areas of jurisdiction to
legislate with regard to criminal matters. Specifically, the
Commonwealth Constitution requires that criminal matters fall within
the specific categories of section 51 of the Constitution, which includes
areas such as importation and exportation of drugs. As such, criminal
law is largely a matter for each state or territory to determine. The states
have an extremely wide ambit to legislate criminal law and are,
essentially, empowered to make laws for the “peace, welfare and good
government” of the state.5
 Therefore, the states and territories
fundamentally govern the criminal justice system in Australia, though in
areas where there is conflict, federal law will prevail.
A. Over-Representation of Indigenous Australians
The over-representation of Aboriginal and Torres Strait Islanders in
Australian prisons is an unfortunate feature of Australia’s criminal
justice system. Australia’s population is approximately 23 million. As of
June 2010, the prison population was approximately 29,700.6
 While
representing approximately 2.5% of the Australian population,7
Australia’s indigenous population represents almost 26% of the prison
population.8
 This over-representation is a long-standing problem.
Moreover, recent statistics show that just over half of the juvenile prison
 5. QUEENSLAND CONSTITUTION, 2001, OFFICE OF THE QUEENSL., PARLIAMENTARY COUNSEL
(May 18, 2012), available at http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/
ConstofQA01.pdf.
 6. AUSTL. BUREAU OF STATISTICS, PRISONERS IN AUSTRALIA, 2010—PRISONER SNAPSHOT,
4517.0 (2010), available at http://www.abs.gov.au/ausstats/abs@.nsf/mf/4517.0 (follow “Prisoner
characteristics, Australia”; then follow “Prisoner snapshot”).
 7. AUSTL. BUREAU OF STATISTICS, NATIONAL ABORIGINAL AND TORRES STRAIT ISLANDER
SOCIAL SURVEY, 4714.0 (2008), available at http://abs.gov.au/AUSSTATS/abs@.nsf/mf/4714.0/
(follow “Population Context”).
 8. AUSTL. BUREAU OF STATISTICS, PRISONERS IN AUSTRALIA 4517.0 (2009), available at
http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/A570D4363D75FE30CA257687001D5128/$F
ile/45170_2009.pdf.
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population is indigenous, with indigenous juveniles being “28 times
more likely than non-indigenous juveniles to be detained in a juvenile
justice centre.”9

While the reasons for the over-representation of Aboriginal and
Torres Strait Islanders are wide-ranging and complex, one contributing
factor has been their incarceration for minor crimes, commonly known
as the “trifecta”—offensive language, resisting arrest, and assaulting a
police officer.10 The outcome of imprisonment can be devastating.
Deaths in custody have been a disturbing feature of the criminal justice
system.11 Australia no longer has the death penalty,12 but death has
nevertheless too often resulted following incarceration. In 1987, a major
inquiry into the deaths of ninety-six Aboriginal and Torres Strait
Islander people who died while in police custody, resulted in the
Indigenous Deaths in Custody 1989–1996 Report, which many hoped
would herald a much greater understanding of this problem and instigate
reforms aimed at reducing it.13 More recent statistics demonstrate that
the problem persists.14
B. Investigative Practices
Earlier official inquiries into police practices in Australia uncovered
systemic and deep-rooted corruption within some of its police forces.15
In Queensland, the Fitzgerald Inquiry had far reaching implications for
the police force and criminal justice system. The inquiry ultimately
resulted in the then police commissioner, Sir Terrence Lewis, being
convicted and jailed on corruption charges, and the former Premier of
Queensland, Sir Joh Bjelke-Petersen, being charged, though not
 9. NATALIE TAYLOR, AUST. INST. OF CRIMINOLOGY, JUVENILES IN DETENTION IN AUSTRALIA,
1981–2007, 05 AIC MONITORING REPORT 6 (2009).
 10. OFFICE OF THE ABORIGINAL & TORRES STRAIT ISLANDER SOC. JUSTICE COMM’R
INDIGENOUS DEATHS IN CUSTODY 1989–1996, (1996).
 11. Id.; see also QC ELLIOTT JOHNSTON, ROYAL COMM’N INTO ABORIGINAL DEATHS IN
CUSTODY (1991), available at http://www.austlii.edu.au/au/other/IndigLRes/rciadic/.
 12. Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) 2010
(Cth) (Austl.).
 13. See Jens-Uwe Korff, Royal Commission into Aboriginal Deaths in Custody, CREATIVE
SPIRITS, http://www.creativespirits.info/aboriginalculture/law/royal-commission-aboriginal-deaths-incustody.html (last visited Aug. 6, 2011).
 14. See AUSTL. INST. OF CRIMINOLOGY, PRISON CUSTODY DEATHS 1982–2003 (2005), available
at http://www.aic.gov.au/publications/current%20series/cfi/81-100/cfi088.aspx.
 15. See, e.g., JRT WOOD, ROYAL COMM’N INTO THE N.S.W. POLICE SERVICE, FINAL REPORT,
(1997); G. A. KENNEDY, ROYAL COMM’N INTO WHETHER THERE HAS BEEN ANY CORRUPT OR
CRIMINAL CONDUCT BY W. AUSTL. POLICE OFFICERS, INTERIM REPORT, (2002); G. E. FITZGERALD,
COMMISS’N OF INQUIRY INTO POSSIBLE ILLEGAL ACTIVITIES AND ASSOCIATED POLICE MISCONDUCT,
REPORT (1989) [hereinafter FITZGERALD INQUIRY].
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convicted, of giving perjured evidence to the inquiry.16 Importantly, the
inquiry resulted in significant legislative reform, implemented into the
state, in respect to policing practises, namely the Police Powers and
Responsibilities Act. This act outlines and consolidates both police
powers and the limitations or safeguards that accompany those powers.
The act aims to find an appropriate balance between providing sufficient
powers to allow police to fully investigate crime in modern society,
while ensuring fairness and protecting fundamental rights of individuals
exposed to those policing powers.
The Fitzgerald Inquiry exposed one former police practice that would
have contributed to wrongful convictions in this country: that of
“verballing”—the fabrication of confessions supposedly made by the
defendant, either verbally or in writing. Presented against the defendant
in court, the jury was then faced with believing the police officer or the
defendant before them. Among the reform measures recommended and
implemented following the Fitzgerald Inquiry was the requirement to
audiotape or videotape police interviews with suspects—a measure the
Innocence Network calls for to help prevent false confessions.
Queensland legislation in this area generally demands that, where
practicable, the whole of the interrogation, including the warnings given
to suspects, be recorded and not just the confession. For example,
section 436 of the Police Powers and Responsibilities Act (Qld) 2000,
states:
Recording of questioning etc.
This section applies to the questioning of a relevant person.
The questioning must, if practicable, be electronically recorded.
If the person makes a confession or admission to a police officer during
the questioning, the confession or admission is admissible in evidence
against the person in a proceeding only if it is recorded as required by
subsection (4) or section 437.
If the confession or admission is electronically recorded, the confession
or admission must be part of a recording of the questioning of the person
and anything said by the person during questioning of the person.17
This requirement now typically applies throughout Australia and was
often welcomed by police, who were then able to utilize the video
recordings in court to support the accusations against the defendant, to
 16. The Crime and Misconduct Commission provides a concise summary of events surrounding
the Fitzgerald Report. See CRIME & MISCONDUCT COMM’N QUEENSLAND, THE FITZGERALD INQUIRY
(1987–89) (2011), available at http://www.cmc.qld.gov.au/asp/index.asp?pgid=10877; FITZGERALD
INQUIRY, supra note 15.
 17. Police Powers and Responsibilities Act 2000 (Qld) section 436.
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dispute claims of police malpractice made against them, or both. While
this reform is likely to have significantly reduced the problem of
verballing and the related issue of false confessions, this reform does not
eliminate either possibility. Research has uncovered many reasons why
people may falsely confess, reasons that may have nothing to do with
whether or not the interrogation is being recorded. Moreover, there are
always times prior to the police interview, or breaks in the police
interview, that remain susceptible to threats, to inducements, or even to
verballing itself. For example, in Coates v. The Queen, unrecorded
confessions were allegedly made to police officers while the suspect was
on a “toilet break.”18 There was no reference to the alleged confession in
any of the tape-recorded interviews that followed the break. By a four–
three majority, the confession was excluded by the Australian High
Court.19
Disturbingly, undercover “Mr. Big” operations—whereby police
create situations or stage criminal activity to obtain or induce
confessions from suspects—have recently crept into Australian
investigative practices.20 This is concerning, as Canadian experience of
this activity has highlighted the potential unreliability of evidence
gained in this manner.21
A 2009 Queensland Crime and Misconduct Commission report,
Dangerous Liaisons: A report arising from a CMC investigation into
allegations of police misconduct (Operation Capri), noted concern over
another recent technique used for confession extraction, consisting of
prisoners being given leave from prison for “private time” with their
wives or partners, in exchange for admitting to unsolved crimes.22
III. CASES AND CAUSES OF WRONGFUL CONVICTION
In August 1980, a baby girl disappeared from a family campsite in
outback Australia. Her torn and bloodied jumpsuit was later found. Her
frantic parents told of how a dingo took their baby girl from their
campsite tent; however, suspicion immediately fell upon the parents, in
particular the baby’s mother, Lindy Chamberlain who was charged with
her baby’s murder. Dinner table conversations around Australia
 18. Nicholls v. The Queen, Coates v. The Queen, [2005] HCA 1, 7 (Austl.).
 19. Coates, [2005] HCA 1 (Austl.).
 20. See, e.g., Tofilau v. The Queen, [2007] HCA 39 (Austl.).
 21. For more information on Mr. Big operations in Canada, see Kyle Unger: Five Year Wait
Over, Another Wait Begins, 10 ASS’N DEFENCE WRONGLY CONVICTED 14 (2009); MR. BIG (Eagle
Harbour Entertainment 2009).
 22. CRIME & MISCONDUCT COMM’N QUEENSLAND, DANGEROUS LIAISONS: A REPORT ARISING
FROM A CMC INVESTIGATION INTO ALLEGATIONS OF POLICE MISCONDUCT (OPERATION CAPRI) 22–26
(2009).
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revolved around whether or not Lindy Chamberlain had killed her child.
The nation was divided as to the parents’ guilt or innocence. No doubt
the extensive media coverage at the time, conveying Lindy Chamberlain
as acting other than as a grieving mother should, played a role in her
conviction. More damning at trial, though, was the scientific evidence
presented against Ms. Chamberlain.23 A forensic biologist testified at the
Chamberlain trial that a significant amount of fetal blood was present in
the Chamberlain’s car. This blood—a central feature of the prosecution
theory of how and where Lindy Chamberlain killed Azaria—was later
found to be a “sound deadening compound,” which is a fluid used in car
batteries.24 The inquiry also found significant support for the proposition
that a dingo had taken the baby.25 Lindy Chamberlain and her husband,
Michael, who was also convicted as an accessory after the fact,
ultimately had their convictions quashed six years later, following a
Royal Commission inquiry and recommendation.26 However it was not
until June 2012, almost thirty-two years after the incident, that a fourth
inquest finally resolved the matter with an official finding from the
Coroner that a dingo was responsible for the baby’s death.27
To date, the vast majority of wrongful conviction research into
causative factors contributing to the conviction of the innocent has
stemmed from the United States, in particular because of the
comparatively large number of DNA exonerations there. These
exonerations have enabled an insight into just how innocent people can
be convicted of a crime of which they had no part. Caution needs to be
applied before automatically attributing these same causative factors to
Australia. While both criminal justice systems operate on common law
adversarial foundations, some marked differences, such as cultural,
procedural, trial, evidential difference, and appeal aspects of each
criminal justice system, are likely to impact the causation factors at play.
For example, the honourable Mervyn Finlay QC, while noting that any
number of miscarriages of justice is too many, suggested that Australia
could expect remarkably fewer wrongful convictions than in the United
States. Some of the reasons cited were that:
[O]ther things in the Justice system are not equal, eg:
Unlike in NSW, most American trial Judges and all prosecutors are
 23. R v. Chamberlain, Transcript of proceedings, (1982) 69 FLR 445 (NT) (Austl.).
 24. T.R. MORLING, ROYAL COMM’N OF INQUIRY INTO CHAMBERLAIN CONVICTIONS, REPORT
(1987).
 25. Id.
 26. Re Conviction of Chamberlain (1988) 93 FLR 239 (Austl.).
 27. See As it happened: Azaria Chamberlain inquest, ABC NEWS (last updated June 14, 2012,
10:17AM), http://www.abc.net.au/news/2012-06-12/azaria-chamberlain-inquest-findings/4065466.
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elected.
Most of the United States do not require the videotaping of alleged
confessions . . . .
There is generally a higher level of legal aid available to persons accused
of crimes in NSW than in the States of America.28
Clearer similarities within criminal justice systems, including
conviction rates, procedural protections, evidential, trial, and appeal
provisions exist between the criminal justice systems in Australia,
England, and Canada. Interestingly, at this early stage of causal
comparative analysis, several of the systemic causes of wrongful
conviction coming out of the United States appear to be reflected in the
exonerations in England, Canada, and Australia. In Australia, for
example, withholding of exculpatory evidence,29 faulty scientific
evidence,30 and false confessions31 have all contributed to the known
cases of wrongful convictions. No doubt the differences in the manner
of investigation and prosecution, among other things, in the various
international jurisdictions will have a major impact on the likely causes
of wrongful conviction in each country. However, at this stage one must
at least entertain the possibility that many of the same causes are
applicable at an international level, albeit to differing statistical degrees.
While these causes may occur less often in Australia as compared to the
United States, there is also the potential that some factors might be
equally or more problematic in Australia.
For example, false confessions and false admissions are known to be
a major contributor to wrongful convictions in the United States, found
in approximately 25% of the DNA exonerations to date. Despite the
procedural safeguards in Australia—for example, those found in the
Police Powers and Responsibilities Act, which determine how long a
suspect can be questioned and require that the questioning be recorded
in some fashion (audio or video)—the Australian criminal justice system
also has another factor integrated into the false confession and
admission dynamic that may make it more problematic when it comes to
some members of our Indigenous population. “Aboriginal English,”
being a language variant on Standard English, and a cultural
 28. MERVYN FINLAY QC, REVIEW OF THE NSW INNOCENCE PANEL 14 (2003).
 29. See Mallard v. The Queen, [2005] HCA 68 (Austl.); Button v. The Queen, [2002] WASCA
35 (Austl.).
 30. See Re Conviction of Chamberlain, (1988) 93 FLR 239 (Austl.); MORLING, supra note 24.
 31. See generally JOHN BUTTON, WHY ME LORD! (1998); Murder He Wrote Part 1 (Austl.
Broad. Corp. television broadcast July 29, 2002); Murder He Wrote Part 2 (Austl. Broad. Corp.
television broadcast Aug. 5, 2002); ESTELLE BLACKBURN, BROKEN LIVES (2002); Button v. The Queen,
[2002] WASCA 35 (Austl.); Condren v. R, (1991) 49 A Crim R 79; Mallard v. The Queen, [2005] HCA
68 (Austl.).
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phenomenon known as “gratuitous concurrence,” (defined as an
indigenous cultural reaction to agree with white people, particularly to
agree to statements made and questions posed by white authorities, such
as police) may increase the risk of false confessions. Eades, who has
undertaken extensive research in this regard, describes gratuitous
agreement in part as an Aboriginal person’s way of being socially
obliging and amenable, believing this will result in a better relationship
between the parties.32
Aboriginal English may result in a misunderstanding between parties,
particularly in a police interview. A misunderstanding is even more
likely if combined with gratuitous concurrence.33 Other cultural specific,
non-verbal communication differences can also be interpreted as guilt,
such as silence or the avoidance of eye contact.34 These issues are not
limited to interaction with police but extend into the courtroom.35 The
criminal justice system has acknowledged the potential for miscarriages
of justice to occur due to these differences and has implemented
measures to address them to some extent. Procedurally, police are
required to ensure a support person or legal aid officer be contacted
before any questioning of Aboriginal Australian persons.36 Other
courtroom measures include those outlined in the Equal Treatment
Benchbook, Supreme Court of Queensland.
37 However, considering that
false confessions are, generally speaking, a significant causal factor in
the United States, and recognizing these additional cultural and
linguistic pitfalls for some members of the Aboriginal community in the
context of the criminal justice system, false confessions should remain
an area of particular concern within the context of wrongful conviction
in Australia.
Conversely, other known causes of wrongful conviction frequently
occurring in the United States may be less prevalent in Australia. In the
United States, eyewitness identification is the leading contributor to
wrongful convictions, being involved in up to 75% of DNA
 32. See DIANA EADES, ABORIGINAL ENGLISH AND THE LAW, COMMUNICATING WITH
ABORIGINAL ENGLISH SPEAKING CLIENTS: A HANDBOOK FOR LEGAL PRACTITIONERS (1992);
ABORIGINAL & TORRES STRAIT ISLAND SOCIAL JUSTICE COMM’R, AUSTL. HUMAN RIGHTS COMM’N,
SUBMISSIONS OF THE ABORIGINAL AND TORRES STRAIT ISLANDER SOCIAL JUSTICE COMMISSIONER ON
COMMON DIFFICULTIES FACING ABORIGINAL WITNESSES (2005), available at
http://www.humanrights.gov.au/legal/submissions_court/amicus/giblet_aboriginalwitnesses20mar07.html.
 33. Id.
 34. Id.
35. Id.; see also, CRIMINAL JUSTICE COMM’N, ABORIGINAL WITNESSES IN QUEENSLAND’S
CRIMINAL COURTS (1996).
 36. See Police Powers and Responsibilities Act 2000 (Qld) section 420.
 37. SUPREME COURT OF QUEENSL. EQUAL TREATMENT BENCHBOOK (2005).
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exonerations.38 Research is required, however, before assuming the
same is true for Australia.39 Social science research in the United States
and elsewhere has suggested that new procedures for collecting
eyewitness identification, such as incorporating double-blind sequential
showing of photographs, will significantly reduce the possibility of
incorrect identifications while maintaining a similar degree of correct
identifications. Such measures should be incorporated into Australian
police practices.
The problem of verballing, as discussed earlier, was involved in the
convictions of three brothers in Western Australia, Ray, Peter, and Brian
Mickelberg, who were convicted of stealing over half a million dollars
worth of gold bullion from the Perth mint in Western Australia in
1982.40 In 2002, a former police officer admitted to fabricating the
evidence used to convict them.41
The following three cases: Easterday, Button, and Mallard, further
highlight causes of wrongful conviction in Australia. This Essay more
fully explores the Mallard case, being the most recent of these three.
A. The Easterday Case
In 1993, three amateur gold prospectors were convicted of defrauding
a gold mining company out of six million dollars. It was alleged that
Clark Easterday, Len Ireland, and Dean Ireland had “salted,” or
tampered with, their soil tests. Specifically, the prosecution alleged that
the defendants placed gold dust in their soil sample, resulting in a false
reading of the proportion of gold contained within the soil.42 Always
protesting their innocence, each of the men served thirteen months of
three and one-half year terms in prison before having their convictions
 38. Understand the Causes—Eyewitness Misidentification, INNOCENCE PROJECT,
http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php (last visited Aug. 10,
2011).
 39. Some research in this area is being undertaken. For example, see Ms Serena Nicholls,
GRIFFITH UNIV., http://www.griffith.edu.au/criminology-law/griffith-law-school/research/researchhigher-degrees/events/colloquia/colloquium-1-2011/colloquium-1-2011-schedule/serena-nicholls (last
visited May 25, 2013).
 40. See Andrew Rule, How the West Was a State Where Police Ran Wild, AGE (June 15, 2002),
http://www.theage.com.au/articles/2002/06/14/1023864347078.html; Charlie Brady, Mickelberg hopes
to untie the stitch, GREEN LEFT WEEKLY (Feb. 12, 1992), http://www.greenleft.org.au/node/2222; Selina
Day & Liza Kappelle, Brothers Plan Appeal No. 8 after Police Confession, AGE (June 12, 2002),
http://www.theage.com.au/articles/2002/06/11/1022982845280.html; Mark Russell, Conscience Come
Clean, COURIER MAIL, June 13, 2002; Mickelberg v. The Queen, [2004] WASCA 145 (Austl.); JayneMaree Sedgman, Mickelberg Brothers Speak Out, AUSTL. BROADCASTING CORP. ONLINE (July 6,
2004), http://www.abc.net.au/pm/content/2004/s1148083.htm.
 41. Id.
 42. Ross Coulthart, Karpa Gold Fall Guys, SUNDAY (May 18, 2003),
http://sgp1.paddington.ninemsn.com.au/sunday/cover_stories/article_1276.asp?s=1.
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quashed in March of 2003.43 This followed, among other things, the
discovery that the Crown had withheld important stock exchange
documents from the defence and the court at trial.44 These stock
exchange documents indicated that other people, not exclusively the
defendants, may have financially benefited from the salting and insider
trading.45
B. The John Button Case
Approximately forty-six years ago, John Button was celebrating his
nineteenth birthday with his girlfriend, Rosemary Anderson, before
things took a tragic turn. Following an insignificant quarrel, Anderson
left the house to walk home. Button went looking for her and discovered
her wounded by the side of the road, having been hit by a car. Anderson
later died in hospital.46
Button was tried for murder and convicted of manslaughter. Although
his prison term lasted just less than five years, the consequences of that
conviction—including an inability to travel overseas to see his mother or
attend her funeral after she died, remained for almost four decades.47
Button took almost forty years prove his innocence, despite a known and
convicted serial killer, Eric Edgar Cooke, providing a detailed
confession to police not long after Anderson’s death and Cooke
subsequently repeating his confession moments before he was hanged
for the other murders he committed.48 A false confession contributed to
Button’s wrongful conviction, and Button has spoken about the
traumatic police interrogation that led to his signing of the confession.
The Court of Appeal of Western Australia finally overturned John
Button’s conviction in early 2002, and in 2003, John Button eventually
received some financial compensation.49
 43. Selina Day, WA—Trio’s Gold Fraud Conviction Quashed, AAP GEN. NEWS (Mar. 28. 2003);
see also Easterday v. The Queen, [2003], WASCA 69.
 44. Easterday v. The Queen, [2003] WASCA 69.
 45. Coulthart, supra note 40.
 46. BLACKBURN, supra note 31.
 47. See BUTTON, supra note 31; Murder He Wrote Part 2, supra note 31.
 48. BLACKBURN, supra note 31. This was at a time when Australia still incorporated the death
penalty. As noted in Broken Lives, John Button was in the prison yard, when Eric Cooke was hanged
and the prisoners knew the time of the execution, as the sound made all the rooftop pigeons take flight.
 49. Button v. The Queen, 35 [2002] WASCA 35 (Austl.). The wrongful conviction of John
Button was explored in Murder He Wrote Part 2, supra note 31; see also BUTTON, supra note 31.
Further, compensation was awarded to another exoneree in June 2011, Darryl Beamish, a deaf-mute
who was also wrongly convicted for a murder for which Eric Edgar Cooke was responsible. See
Beamish v. The Queen, [2005] WASCA 62; Amanda O’Brien, $425k Payout ‘Miserly’ for Deaf-Mute’s
Jail Hell, AUSTRALIAN (June 3, 2011), http://www.theaustralian.com.au/national-affairs/k-payoutmiserly-for-deaf-mutes-jail-hell/story-fn59niix-1226068250577; Kathryn Shine, Cleared at Last After
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C. The Andrew Mallard Case
Pamela Lawrence was murdered in her Perth jewellery shop, having
been beaten on the head with a blunt object. Andrew Mallard, already
known to police for petty crime, became a prime suspect early in the
investigation, despite the little, if any, evidence to arouse such targeted
suspicion. As part of the on-going investigation, the police established
an undercover operation. Mallard was befriended by an undercover
officer, “Gary,” who secretly recorded their conversations but these
conversations in no way implicated Mallard as being involved in the
murder. However, during an official police interview undertaken at a
time in which it appears Mallard’s mental health was impaired, Mallard
hypothesized about how the victim was killed and “confessed” at times
to the murder. This, among other evidence presented by the police and
prosecution, including Mallard’s drawing of the murder weapon (the
wrench), resulted in his conviction for murder. Mallard spent twelve
years in prison before being exonerated when he successfully appealed
to the High Court.50
Mallard’s fight to prove his innocence was a long battle. Mallard’s
initial appeal was rejected. He was later able to return to the Western
Australia Court of Appeal via a reference of the attorney general,
however, he was again unsuccessful at this appeal. Mallard was
fortunate however, to then be one of a relatively small number of
criminal matters to be heard by the High Court of Australia.51 There, his
conviction was finally overturned. Despite the corrected conviction, the
prosecution still initially considered Mallard the prime suspect. The
prosecution decided, however, not to retry the case when subsequent
investigations discovered evidence implicating another man who was
already in prison, and who committed suicide shortly after receiving this
news.52 Following this series of events, the Corruption and Crime
Commission of Western Australia (CCC) officially investigated the
matter.
While the CCC investigation focused, as their ambit required, on
44 years, AUSTRALIAN, Apr. 2, 2005.
 50. Mallard v. The Queen, [2005] HCA 68 (Austl.).
 51. For example, figures available from the High Court of Australia library show that in the
2009/2010 financial year, there were 57 criminal law applications for a hearing in the High Court and of
those, 9 were successful (16%).
 52. CORRUPTION & CRIME COMM’N, REPORT ON THE INQUIRY INTO ALLEGED MISCONDUCT BY
PUBLIC OFFICERS IN CONNECTION WITH THE INVESTIGATION OF THE MURDER OF MRS PAMELA
LAWRENCE, THE PROSECUTION AND APPEALS OF MR ANDREW MARK MALLARD, AND OTHER RELATED
MATTERS 133-136 (2008); see also Amanda Banks, Suicide Note Left by Convicted Murderer,
AUSTRALIAN, May 23, 2006; Amanda Banks, Jailed Murder Suspect Dead, AUSTRALIAN, May 20,
2006.
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whether there had been misconduct by the public officials in the case,
the CCC identified key aspects as to why this wrongful conviction
occurred. For example, the CCC report found that the police had
requested an expert report be amended so that the portion of the report
relating to saltwater testing of Mallard’s clothes (which determined that
Mallard had not rinsed his clothes in the river as Mallard claimed the
murderer would have done in order to remove any traces of blood), be
excised. Further, the CCC found that the prosecution proceeded with the
case based on Mallard’s drawing of a wrench as the murder weapon,
despite evidence showing that the injuries to Lawrence could not have
been inflicted by such a wrench.53
The CCC noted aspects of the police investigation that were improper
and amounted to “misconduct.” For example, the CCC discovered that
some witnesses the police interviewed on a number of occasions
changed their statements during the course of the investigation. The later
statements strengthened the case against Mallard, but the police included
only the final statements in the brief of evidence. Further, the police did
not supply the earlier statements to the defense.54 The CCC commented
in their executive summary:
[43] The Commission is satisfied that the changes were brought about
either by persistent and repeated questioning and/or by deliberately
raising doubts in the witnesses’ minds until they became confused,
uncertain or possibly open to suggestion, and demonstrates a pattern
which cannot have been an accident or coincidence.55
The CCC’s comments in this case suggest that the problems regarding
the eyewitness identification were more attributable to the police
interplay with the witnesses and their evidence, rather than with the
original eyewitness identification.56 The wrongful conviction also
involved tunnel vision, as can be noted through various points of the
CCC report:
6.7 Andrew Mallard as a Suspect
[178] By the beginning of June 1994, Andrew Mallard was under active
investigation. All the available material points to him being, at that time,
the only person actively being considered responsible for the homicide.
The investigation files do not reveal any other person who had been
interviewed in a formal manner and under criminal caution. The various
detectives in their evidence before the Commission, said that there were
other “persons of interest,” but they appear to have all been written off or
 53. REPORT ON THE INQUIRY INTO ALLEGED MISCONDUCT, supra note 52, at 83–84.
 54. Id. at xxii–xxiv and at 85–100.
 55. Id at xxii.
 56. Id. at 98–100.
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discounted by about 1 or 2 June.
[179] On the other hand:
• there was no forensic evidence linking Andrew Mallard to the crime;
• he had denied committing the offence, and had said nothing by way
of admission;
• he had given a variety of different accounts for his movements upon
the assumption that he had to account for a period of 90 minutes, in
circumstances where he was being interviewed in a psychiatric
hospital and was demonstrating quite fanciful behaviour; and
• the murder weapon had not been identified. Not only had no weapon
been found, but some of the injuries to the deceased’s skull had a
distinctive shape and contained traces of something blue.
[180] The various police witnesses denied Mr Mallard was already a
suspect at that stage and sought to draw a distinction between the use by
them of the terms “suspect” and “person of interest,” maintaining that in
police jargon a “suspect” meant a person in respect of whom there was
sufficient evidence to charge, and that other persons being investigated
were merely “persons of interest[.]” The Commission rejects this
supposed distinction…
[324] If, as they now claim, the police officers had doubts, the
appropriate course was to review all the material and all the witness’
statements to see if there could be anyone else who might be a possible
suspect, and to re-examine the evidence they had to see if any possible
leads had been overlooked. This is the very thing they did not do, but
rather they focused their efforts on seeking to build a case against
Andrew Mallard, and the manner in which they did it reflects no credit on
the police involved.
[351] The only weapon specified by Mr Mallard in his alleged confession
was shown to have been incapable of inflicting the injuries to Mrs
Lawrence. This alone therefore cast grave doubts on the reliability of his
confession, yet its significance was either overlooked or ignored. This
was not the only test where results which did not advance the case against
Mr Mallard, or which tended to exonerate him, were cast aside.57
Full disclosure of evidence is vital for a fair trial, as the wrongful
convictions discussed in this Essay demonstrate. The CCC inquiry also
noted that despite statutory requirements demanding full disclosure,
there appears to be a continuing problem in this regard.58 The Mallard
 57. Id. at 38, 77, 83.
 58. Id. at 108–09. The CCC also reported the following:
8.4 A Continuing Problem
[476] Disclosure has continued to be a problem notwithstanding the 1993 Guidelines. Section 42
(1) of the Criminal Procedure Act 2004 which commenced on 2 May 2005, set out in statutory
form, those items which the Prosecution must disclose to the defence prior to the trial. It
includes:
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case alone involves a myriad of relevant contributing causal factors to
wrongful convictions, including many known to occur elsewhere: a false
confession, withholding of exculpatory evidence, official misconduct,
tunnel vision, and eyewitness identification.59
While the number of exonerations that have occurred in Australia are
greater than those discussed in this Essay, this number does not justify
robust claims regarding systemic causes. The cases do, however, enable
insight into the problem and allow initial consideration as to what
similarities or differences appear to be operational. Australian cases to
date reflect, at least to some degree, those systemic causes known to
cause wrongful convictions in other countries, such as the United States,
Canada, and England. If and when more exonerations occur, Australia
will have the opportunity to explore more fully the causal factors
contributing to wrongful convictions. For further exonerations to occur,
however, expanding the current corrective mechanisms is required. In a
catch-22 situation, one reason for the comparatively small number of
exonerations to date is likely, at least in part, due to the lack of
investigative and corrective mechanisms for wrongly convicted people.
a) a copy of every statement . . . by any person who may be able to give evidence that its
relevant to the charge, irrespective of whether or not it assists the prosecutor’s case or the
accused’s defence . . . .
e) a copy of every other document or exhibit which may assist the accused’s defence.
[477] The same year the DPP issued a fresh Statement of Prosecution Policy and Guidelines
2005, to give effect to the statutory requirements, Paragraphs 111 and 112 expressly required the
police to furnish to the Office of the DPP . . . .
[A]ll other documentation, material and other information held by any police officer concerning
any proposed prosecution witness which might be of assistance or interest to either the
prosecution or the defence, and to certify that such had been done.
[478] Notwithstanding this, problems continued, and by letter dated 7 December 2006, the
current DPP, Robert Cock QC, wrote to the Commissioner of Police advising that in a number of
recent prosecutions relevant material had not been disclosed to the defence, let alone to the
prosecutor, prior to trial. He went on to explain in some detail the nature and extent of the
obligations of the Police in respect of disclosure. He also attached a list of “Items not Commonly
Disclosed” which included, “all typed or handwritten statements of witnesses both signed and
unsigned, including draft statements and statements of witnesses not included in the brief, any
and all negative enquiries from potential witnesses, any and all negative results of any forensic
testing, running sheets (including those of surveillance and undercover operations) and any
photo boards shown to witnesses including negative and incorrect identifications[.]”
[479] By a General Broadcast to all police on 17 January 2007, authorised by the Deputy
Commissioner Specialist Services, police were reminded of their obligations in this regard and
the DPP’s list of “Items not Commonly Disclosed” was set out in full.
[480] There can no longer be any excuse for police to claim they are unaware of their obligations
relating to disclosure. Whether police are currently fulfilling their obligations in this regard, the
Commission is unable to say; but if they understand and comply with their obligations as
described, there should be no further problems in this regard.” Id.
 59. See generally REPORT ON THE INQUIRY INTO ALLEGED MISCONDUCT, supra note 52.
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IV. CORRECTION OF WRONGFUL CONVICTION
Australia’s trial and appeal provisions were adopted from England in
the early 20th century. Australia’s criminal procedure processes have
naturally evolved; however, England’s originating influence remains
particularly evident in the appeal and pardon provisions still operative in
Australia. Wrongful conviction applicants in Australia remain heavily
reliant on the traditional pardon provisions for access back into the
courts of appeal. England moved away from this over a decade ago, with
the creation of the Criminal Cases Review Commission. As such,
modern Australia is more reliant on now usurped English provisions to
correct wrongful conviction than England itself. This old framework is
not conducive to identifying and correcting wrongful convictions.
Innocence projects have operated in Australia for over ten years now.
With a prison population of approximately 30,000, it is not expected that
Australia will see the volume of exonerations as have occurred in the
United States. Other differences, such as the comparatively shorter
sentencing periods in Australia, will also impact innocence project
activity and the likelihood of exonerations occurring, particularly
exonerations occurring prior to release. Statistics from the Innocence
Project in the United States show the average time spent in prison before
exoneration is thirteen years.60
One of the major hurdles for innocence project work in Australia,
however, is the legal framework within which projects operate. When
the Griffith University Innocence Project commenced operation in 2001,
the rights, or lack thereof, regarding prisoner access to information,
biological material, and DNA testing were ambiguous at best. This led
to a long and exhaustive process of requests, meetings, and submissions,
from which it became clear that numerous obstacles prevented effective
investigation of wrongful conviction claims. Access to basic
information—as simple and seemingly uncontroversial as whether
biological evidence existed in an applicant’s case for potential DNA
testing—was not forthcoming. The experience ultimately confirmed an
essential need for reform.
Discovery of information vital to uncovering a wrongful conviction is
difficult, as there are no powers available to projects to access such
information. The system tends to shut down following the exhaustion of
a defendant’s appeal. Further, the absence of a framework for the wider
discovery of documents and the limited availability of mechanisms for
DNA innocence testing will no doubt result in the inability for some
ever to prove their innocence.
 60. Facts on Post-Conviction DNA Exonerations, INNOCENCE PROJECT,
http://www.innocenceproject.org/Content/351.php (last visited Aug 10, 2011).
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Some advances have been made. Queensland introduced DNA
innocence testing guidelines into its criminal justice system in August
2010, following years of lobbying by the Griffith University Innocence
Project.61 These guidelines for the first time in Queensland, enable an
outlined procedure and process for DNA based wrongful conviction
claims. However, the limited measures specified within the guidelines
fail to provide the opportunity for a full range of potential DNA
innocence cases to be properly investigated and resolved.
New South Wales is the only Australian state with DNA innocence
testing legislation. The state’s initial foray into this area was the creation
of an Innocence Panel, which was short-lived when it was shut down not
long after its commencement following DNA testing in a high profile
case which excluded the applicant.62 Under the ambit of the police
department, the then-New South Wales police minister John Watkins,
stated the Panel’s suspension was required due to insufficient “checks
and balances to protect anyone other than the applicant.”63
Subsequently, in 2006 legislation was adopted by New South Wales
to facilitate DNA innocence testing to applicants.64 In essence, this
legislation gives convicted people the opportunity to make an
application to the Panel if “the person’s claim of innocence may be
affected by DNA information obtained from biological material
specified in the application.”65 The Panel has referral powers to the court
of appeal if the Panel considers that there is “reasonable doubt as to the
guilt of the convicted person.”66 It is a positive reform, in that it
introduced into Australia the first DNA innocence testing legislation, but
concerns about its effectiveness have also been expressed. These
concerns include the restrictions and limitations contained within the
Act, which make it available to only a small number of convicted
persons who have been convicted of the most serious offences.67
 61. QUEENSLAND DEPT. OF JUSTICE & ATTORNEY-GEN., GUIDELINES FOR APPLICATIONS TO THE
ATTORNEY-GENERAL TO REQUEST POST-CONVICTION DNA TESTING (2010), available at
http://www.justice.qld.gov.au/__data/assets/pdf_file/0008/58283/dna-guidelines-august2010.pdf.
 62. Stateline NSW: Innocence Panel Lost (Austl. Broad. Corp. television broadcast Aug. 15,
2003), available at http://www.abc.net.au/stateline/nsw/content/2003/s926344.htm.
 63. NSW Innocence Panel, Which Reviews Criminal Cases Using DNA Evidence, Suspended,
PM (Austl. Broad. Corp. television broadcast Aug. 11, 2003), available at
http://www.abc.net.au/pm/content/2003/s922027.htm.
 64. In October 2006, the New South Wales Parliament passed the Crimes (Appeal and Review)
Amendment (DNA Review Panel) Act 2006 (NSW) [hereinafter the DNA Act] and the Crimes (Appeal
and Review) Amendment (Double Jeopardy) Act 2006 69 (NSW).
 65. Crimes (Appeal and Review) Act 2001 120, § 89 (2).
 66. Id. § 94 (1).
 67. See, e.g., DNA Review Panel a ‘Toothless Tiger,’ ABC NEWS ONLINE (Oct. 19, 2006),
http://www.abc.net.au/news/newsitems/200610/s1768341.htm. For a fuller discussion regarding the
restrictive nature of the NSW DNA Innocence Testing provisions, see Lynne Weathered & Robyn
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The potential for incorrect interpretation, cross-contamination, and
laboratory errors, among other things, seems ignored in both the New
South Wales and Queensland DNA testing provisions. Queensland
allows testing only where Profiler Plus was not already used (which has
been used for many years in this state). The NSW legislation applies
only to convictions prior to 2006. The situation in Victoria in December
2009 highlighted the need for DNA innocence testing, despite
investigative DNA testing having already been utilized. The conviction
of a schoolboy for rape was corrected when it was discovered the DNA
evidence against him, being the only condemning evidence in that case,
had likely been contaminated.68 For months following that revelation, no
DNA results were allowed in court with a temporary moratorium placed
on the results’ use.69
Most recently, South Australia debated whether to create a CCRC
style body. While that Bill was turned down following its second
reading in June 2011,70 the issue was then referred to the South
Australian Legislative Review Committee (LRC). While the LRC
concluded against the establishment of a CCRC at this time, it
nevertheless determined that better post-conviction review processes
were required.71 To this end, the LRC proposed the establishment of a
Forensic Review Panel to “enable the testing or re-testing of forensic
evidence which may cast reasonable doubt on the guilt of a convicted
person, and for these results to be referred to the Court of Criminal
Appeal.”72 The proposed Panel was not taken up in South Australia, but
would have been a significant step in the right direction, though fall
short of a CCRC in that it is restricted to forensic issues.
 South Australia has however adopted another of the LRC’s
recommendations, establishing a second or subsequent statutory right of
appeal if the court is satisfied that it is in the interests of justice to
consider fresh and compelling evidence.73 This is an important
Blewer, RIGHTING WRONGFUL CONVICTIONS WITH DNA INNOCENCE TESTING: PROPOSALS FOR
LEGISLATIVE REFORM IN AUSTRALIA IN AUSTRALIA, 11 FLINDERS J. L. REFORM 1 (2009).
 68. FRANK H.R. VINCENT, VICTORIAN DEPARTMENT OF JUSTICE, REPORT: INQUIRY INTO THE
CIRCUMSTANCE THAT LED TO THE CONVICTION OF MR FARAH ABDULKADIR JAMA § 2006-10 (2010).
 69. Milanda Rout & Rick Wallace, Police Put Ban on DNA Evidence, AUSTRALIAN (Dec. 10,
2009), http://www.theaustralian.com.au/news/nation/police-put-ban-on-dna-evidence/story-e6frg6nf1225808820951; Steve Butcher, DNA Doubts Force Review of Cases, AGE (Nov. 26, 2009),
http://m.theage.com.au/national/dna-doubts-force-review-of-cases-20091125-jrtf.html; Milanda Rout,
DNA in the Dock, AUSTRALIAN (Dec. 11, 2009), http://www.theaustralian.com.au/news/features/dna-inthe-dock/story-e6frg6z6-1225809214024.
 70. See Criminal Cases Review Commission Bill 2010 (SA) (Austl.).
 71. LEGISLATIVE REVIEW COMMITTEE, REPORT OF THE LEGISLATIVE REVIEW COMMITTEE ON
ITS INQUIRY INTO THE CRIMINAL CASES REVIEW COMMISSION BILL 2010 81 (2012).
 72. Id. at 84.
 73. See Statutes Amendment (Appeals) Act 2013 (SA) (Austl.).
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additional avenue as new evidence of innocence will almost always
come to light following (and often many years after) the applicant’s
appeal right has been exhausted and an appellant generally has only one
opportunity to appeal at the state level and no right for fresh evidence to
be heard in the High Court, regardless of the strength of the fresh
evidence.74 Wider reform is necessary, as the effective investigation and
correction of wrongful conviction cases in Australia has been generally
fraught with difficulties and obstacles, and while these continue to exist,
the chance for many convicted but innocent people to prove their
innocence is limited, as further explained below.
A. Preservation of Evidence
Preservation of evidence is generally a cornerstone of recommended
DNA innocence testing legislation.75 Yet, for the most part in Australia,
the destruction of evidence is often required once the appeal has been
heard. Preservation of evidence is not mentioned within the Queensland
post-conviction DNA testing guidelines. As already demonstrated in the
United States, many wrongful conviction applicants will be unable to
prove their innocence because the evidence upon which DNA testing
could take place no longer exists. Reform is required to ensure DNA
samples and crime scene evidence that contain biological material are
retained and properly stored. Also, reform is necessary to enable future
DNA testing and the subsequent use of this evidence in court
proceedings. If the United States can manage the preservation of
evidence with a prison population of over two million, surely Australia,
with a tiny percentage of that number in prison, can adopt measures to
preserve appropriate evidence.
B. Discovery Powers
Access to information is the essential starting point for the proper
investigation of wrongful conviction claims. In Australia, a significant
amount of information is likely to be available from the applicants
themselves, including the trial transcript, committal transcript, and brief
of evidence, among other things. However, accessing additional
 74. Lynne Weathered, Pardon Me: Current Avenues for the Correction of Wrongful Conviction
in Australia, Current Issues in Criminal Justice, 17 (2) J. OF THE INST. OF CRIMINOLOGY 203 (2005);
Lynne Weathered, Does Australia Need a Specific Institution to Correct Wrongful Convictions?, 40 (2)
AUSTRL. AND N. Z. J. OF CRIMINOLOGY 179 (2007).
 75. Fix the System: Model Legislation—Model Statute for Obtaining Postconviction DNA
Testing, INNOCENCE PROJECT, http://www.innocenceproject.org/fix/Model-Legislation.php (last visited
Aug. 10, 2011).
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documents relevant to the initial case investigation, or potentially
undisclosed exculpatory material, is difficult to uncover, as no real
discovery rights exist beyond the traditional legal avenues.
Discovery powers, such as those given to the CCRC in the United
Kingdom, would significantly increase the opportunity for proper
investigation of cases. One of the key beneficial aspects of having a
CCRC style body introduced would be the associated investigatory
powers that enable the discovery of relevant material and documents,
thereby allowing for a significantly more comprehensive investigation
of claims of wrongful conviction.
Sadly, this is lacking in the post-appeal Australian criminal justice
system. Currently, innocence projects or others can work for many years
on wrongful conviction applications, where ultimately there may be no
evidence available for DNA testing. Prior to the introduction of the
DNA innocence testing guidelines in Queensland in August 2010, it
took almost seven years for the Griffith University Innocence Project to
be told if evidence existed in two matters they were investigating.76
Unfortunately, the Queensland DNA Guidelines have not fully rectified
this situation, as applications need to be sent to the attorney general
showing how DNA innocence testing can provide evidence of innocence
prior to the government deciding whether to undertake a search for
evidence that may still exist. If such evidence is available, no Australian
state offers rights to ensure that testing will take place.
C. DNA Innocence Testing
The Queensland DNA guidelines and the NSW legislation offer
criteria under which a decision will be made as to whether DNA testing
will occur. This significantly improves the situation compared to other
states, where the process remains undefined and ambiguous. If the LRC
recommendations for a Forensic Review Panel had been enacted in
South Australia, it would have allowed for DNA and other scientific
testing. At the date of writing, there have been no post-appeal DNA
exonerations in Australia. The former absence, in any state, of any real
framework for DNA innocence testing as outlined above and the
continued difficulties in accessing relevant information are significant
reasons as to why no DNA exonerations have occurred in Australia to
date.
The case of Frank Button,77 convicted of the rape of a teenage girl,
 76. Lynne Weathered, Invisible Innocence: It Happens Here Too, 32 GRIFFITH REV. 189, at 195
(2011).
 77. The Queen v. Button, [2001] QCA 133.
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perhaps best illustrates the difficulties of obtaining an exoneration.
Sometimes referred to as Australia’s only DNA exoneration, Frank
Button’s conviction was overturned in his first appeal, bringing him
within the traditional appeal avenues and, therefore, outside the
definition of wrongful conviction as used in this Essay. Despite the
potential of highly probative DNA evidence being available before trial,
that testing was inconclusive; the spermatozoa tested from the
complainant’s swabs failed to reveal a DNA profile of the donor.78
Through the insistence of Button’s appellate counsel, additional DNA
testing was undertaken prior to appeal.79 This additional testing included
a bed sheet, not originally tested, which did not contain Button’s DNA.80
Further testing of the complainant’s swabs proved that donor of the
sperm was not Button, but the same person as the donor of the sperm on
the bed sheet. Button’s conviction was quashed.81
The court of appeal described this case as a “black day in the history
of the administration of criminal justice in Queensland.”82 Importantly—
for the purpose of understanding the position of wrongful conviction
applicants in Australia—Frank Button’s situation would have been
daunting if the DNA retesting had not taken place prior to his appeal.
That is, Button would have exhausted his one appeal right to the court of
appeal. Additionally, he would not be entitled to a further appeal beyond
the limited prospect of presenting a significant legal argument to be
heard in the High Court or through being referred back to the court of
appeal via a pardon application. Unfortunately for Button, he would
have no new evidence to support a pardon application. Button would
have difficulty satisfying the terms of the Queensland DNA guidelines,
as DNA testing using Profiler Plus had already been undertaken, even
though it did not initially provide a profile. If this occurred in another
Australian state (outside of New South Wales), Button would have had
no procedural framework or rights to access DNA innocence testing.
Without the infrastructure allowing him DNA innocence testing, there
would be no new evidence of innocence upon which to base a pardon
petition, and in all likelihood, Button would have languished in prison.
Continuing with such a system is not reflective of a society that
acknowledges and is committed to correcting, wrongful convictions.
 78. See CRIME & MISCONDUCT COMM’N, FORENSICS UNDER THE MICROSCOPE: CHALLENGES IN
PROVIDING FORENSIC SCIENCE SERVICES IN QUEENSLAND (2002).
 79. Id.
 80. Id.
 81. Id.; see also The Queen v. Button, [2001] QCA 133.
 82. The Queen v. Button, [2001] QCA 133.
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D. Limited Appeal Avenues
As alluded to earlier, there are limited appeal options for wrongful
conviction claimants.83 One appeal to a state appellate court is often all
that is available. Australia’s highest court, the High Court of Australia,
has determined it is unable to hear fresh evidence, even if that were
compelling evidence of innocence such as DNA. Recent research
highlights that Australia’s appeal system, through its lack of processes
and avenues for wrongful conviction claimants, may breach article 14 of
the International Covenant on Civil and Political Rights.
84 In order to
ensure compliance with international obligations and more adequately
provide fair processes for wrongful conviction applicants, the Australian
Human Rights Commission, in a submission to the LRC, stated:
The current system of criminal appeals in Australia for a person who
has been wrongfully convicted or who has been subject to a gross
miscarriage of justice to challenge their conviction may not be fully
compatible with the right to a fair trial as set out in ICCPR article 14(5).
In the absence of a national body, the establishment of a South
Australian Criminal Cases Review Commission is one mechanism by
which South Australia could ensure compliance with international human
rights standards.85
The new appeal avenue introduced in South Australia is therefore a
major step forward in better providing appellate access for wrongly
convicted people. Such a measure should be similarly adopted across the
country. More significant reforms in regard to our post-conviction
review processes and mechanisms would better still meet international
obligations. The creation of the CCRC in England and Wales has not
solved the problem of wrongful conviction, and indeed, there are a
number of criticisms regarding the organization.86 The CCRC has
 83. For a more comprehensive discussion surrounding appeal avenues for the wrongly convicted,
please see Lynne Weathered, Pardon Me: Current Avenues for the Correction of Wrongful Conviction
in Australia, Current Issues in Criminal Justice, 17 (2) J. OF THE INST. OF CRIMINOLOGY 203 (2005);
and Lynne Weathered, Does Australia Need a Specific Institution to Correct Wrongful Convictions?, 40
(2) AUSTRL. AND N. Z. J. OF CRIMINOLOGY 179 (2007).
 84. Bibi Sangha and Robert Moles, Mercy or Right? Post-Appeal Petitions in Australia, 14
FLINDERS L.J. 293 (2012); Bibi Sangha and Robert Moles, Post-Appeal Review Rights: Australia,
Britain and Canada, 36 (5) CRIM. L.J. 300.
 85. AUSTRALIAN HUMAN RIGHTS COMMISSION, INQUIRY INTO THE CRIMINAL CASES REVIEW
COMMISSION BILL 2010 7 (2011) available at https://www.humanrights.gov.au/sites/default/files/
content/legal/submissions/2011/20111125_criminal_case_review.pdf (last visited May 25, 2013).
 86. To review some of the considerations, concerns and criticisms of the CCRC, see, e.g., THE
CRIMINAL CASES REVIEW COMM’N, HOPE FOR THE INNOCENT? (Michael Naughton, ed., 2009); Robert
Schehr & Lynne Weathered, Should the United States Establish a Criminal Cases Review Commission?,
88 JUDICATURE 122 (2004); Lynne Weathered & Stephanie Roberts, Assisting the Factually Innocent:
The Contradictions and Compatibility of Innocence Projects and the Criminal Cases Review
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2012] WRONGFUL CONVICTION IN AUSTRALIA 1413
however, significantly impacted on the ability of wrongful conviction
applicants to have their cases more thoroughly investigated through the
CCRC’s wide investigative powers. A distinct increase in referrals to the
courts of appeal has occurred since the introduction of the CCRC. If
such a body is created in Australia, lessons could be learned from the
criticisms of the English model, and moreover, attention could be given
to specific Australian issues such as the over-representation of
Aboriginal and Torres Strait Islanders in our prisons. It should be
remembered however, that there is no one solution to the problem of
wrongful conviction and eternal vigilance by everyone involved in the
criminal justice system will always be required.
V. CONCLUSION
Acknowledging that wrongful convictions occur does not undermine
a criminal justice system. In contrast, acknowledging wrongful
convictions can demonstrate a real commitment to the ideals of justice if
active reform is undertaken to address the problem. All criminal justice
systems have flaws. Australia has its own examples of wrongful
conviction that demonstrate its vulnerability to many of the causative
factors known to occur in overseas nations. While the Australian system
does have many front-end measures that may reduce the likelihood of
wrongful convictions occurring, it has not sufficiently updated the postappeal investigative and corrective measures to allow for those wrongful
convictions that do occur, to be more easily identified and corrected.
Australia’s current legal environment creates real obstacles to the
investigation of wrongful conviction claims. In particular, Australia
generally creates unnecessary difficulties by failing to provide a
framework which would enable wider discovery of documents and
evidence, greater access to DNA innocence testing or other forensic
testing, and additional appeal avenues to correct potential miscarriages
of justice. Reform measures need to address these obstacles. The
creation of CCRC— empowered to fully investigate and to refer claims
to courts of appeal—is the most comprehensive way to do so. The
relatively few updated measures for the correction of wrongful
conviction is, perhaps, now a significant differentiating feature of
Australia’s criminal justice system compared to that of England.
In recent times, some welcome measures have been introduced in
Queensland, with the introduction of DNA innocence testing guidelines,
in New South Wales, through their DNA innocence testing legislation
Commission, 29 OXFORD J. LEGAL STUD. 43 (2008); Richard Nobles & David Schiff, The Criminal
Cases Review Commission: Establishing a Workable Relationship with the Court of Appeal, CRIM. L.
REV. 173 (2005).
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and through the South Australian legislation enabling a second appeal.
While these may be limited in scope, they all present a step forward and
better address the problem of wrongful conviction than other states in
Australia, where virtually no updating of mechanisms for the correction
of wrongful conviction has occurred. Resistance to implementing wider
more effective measures to identify and correct wrongful convictions is
not demonstrative of the modern, responsive criminal justice system
otherwise existing in Australia. Hopefully, the future will see increased
measures adopted throughout the country, aligning Australia more
closely to international developments designed to investigate, uncover,
and correct, wrongful convictions