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LYNNE WEATHERED[*]
Increasing numbers of DNA exonerations have highlighted the problem of wrongful conviction in the United States. This paper considers how effectively DNA testing is utilised for the purpose of exonerating wrongly convicted people in Australia, in light of the current measures and mechanisms relating to its use in this country.
This article commences with a consideration of the problem of wrongful conviction in Australia. It then reviews the current institutions for investigating claims of wrongful conviction, after the traditional appeal period. Part three analyses some of the major issues which impact on the effective investigation of DNA-based claims of wrongful conviction, such as preservation of, and access to, biological evidence, as well as the ability to undertake DNA innocence testing. Following from this analysis, the article recommends measures that should be incorporated into any future reforms that are implemented for the purpose of better enabling the investigation and correction of DNA-based cases of wrongful conviction.
The problem of wrongful conviction goes beyond DNA issues. Rather than attempting to canvass other issues such as the ability of our current criminal justice appellate system to correct cases of wrongful conviction, both in DNA and non-DNA situations, this article focuses on the factors that particularly impede the effective investigation of DNA based claims of wrongful conviction. Further, while this article notes that the systemic causal factors contributing to wrongful conviction must be addressed to try to minimise the incidence of wrongful conviction, consideration of causal factors and remedies requires a separate analysis regarding the broader problem of wrongful conviction and dealing with these issues in any depth is beyond the scope of this paper.
In this article ‘wrongful conviction’ is generally and essentially defined in lay, not legal terms. That is, cases in which a person was convicted of a crime which they did not commit. Such cases are sometimes classified and referred to as ‘actual innocence’ cases.[1] Clearly this simplifies what is a most difficult concept in itself – the identification and classification of ‘actual innocence’ cases. This simplification is not intended to dismiss the importance and complexity of such a distinction, but rather to recognise it and provide a working definition for the purposes of exploring the issues addressed within this article. At the same time as being cognisant of this definitional constraint, it is evident that DNA based cases have provided clear and compelling examples of wrongful conviction.
‘Wrongful conviction’ for the purposes of this article, also describes those cases in which an innocent person remains incarcerated or convicted, after both the trial and appeal (as opposed to the conviction being corrected at appeal). The analysis therefore is directed at people who still claim to be innocent after having exhausted the traditional limits of the criminal justice system.
In recent years, there have been phenomenal advances in the realm of forensic science, and in particular, DNA identification. Along with such advances has come the revelation that criminal justice systems are fallible beyond the traditional conviction and appeal avenues. This fallibility is exemplified in the United States where, at the time of writing, 148 people have been exonerated post-conviction through DNA evidence.[2] These people have between them spent approximately 2 400 years in prison.[3] This volume of DNA exonerations does not represent a true reflection of the potential number of wrongful convictions. In the United States it has been estimated that DNA evidence will only be available in 20% of serious cases.[4] The current indication in Australia is that approximately 20%-30% of people claiming wrongful conviction will have DNA evidence as part of their case.
Despite the growing understanding that miscarriages of justice are more frequent than first thought in the United States, there is still some reluctance within Australia to acknowledge that our criminal justice system may have similar flaws. For instance, 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:
...other things in the Justice system are not equal, eg:
| (a) | Unlike in NSW, most American trial Judges and all prosecutors are elected. |
| (b) | Most of the United States do not require the videotaping of alleged confessions... |
| (c) | There is generally a higher level of legal aid available to persons accused of crimes in NSW than in the States of America. |
These factors may, at least, halve the expected number of exonerations in NSW to say, one or two.[5]
Whilst these factors are likely to comparatively reduce the incidence of wrongful conviction, it should also be noted that in other common law jurisdictions such as Canada and the United Kingdom, there are several documented cases of wrongful conviction.[6] England has had over one hundred post-appeal exonerations, since the creation of the Criminal Cases Review Commission (CCRC) in 1997.[7]
Estimates on the magnitude of the problem of wrongful conviction vary between jurisdictions and statistics in this area are difficult and perhaps impossible to accurately determine. For Australia, it has been suggested that around 1% of people imprisoned may be wrongly convicted.[8] In the United States, Huff, Rattner & Sagarin estimate that between .5 – 5% of convictions are wrong.[9] Indications from the New York Innocence project suggest that approximately four out of ten applicants applying to the Project that have DNA available to them, will be exonerated. This Project has over 4,000 applicants.[10] Presently in England only a small percentage (approximately 4%) of applicants applying to the CCRC are then referred to the Court of Appeal.[11] As of June 2004, approximately 69% of the cases referred to the Court of Appeal by the CCRC on the basis of a broader conception of wrongful conviction have been successfully overturned.[12]
Australia has itself recorded a number of wrongful convictions. Mirrored within these cases are some of the causal factors identified in other jurisdictions: incorrect scientific evidence[13], false confessions,[14] informer evidence,[15] and ‘tunnel’ vision.[16] Clearly, the prevention of wrongful convictions is much better than a cure. The problem of eliminating wrongful convictions is better addressed by taking measures that attempt to reduce, if not eliminate, the causal factors contributing to wrongful convictions. In line with this, there are a number of Innocence Commissions now being established in the United States with their main purpose being to examine known cases of wrongful conviction, determining the causes of such convictions and the making of recommendations to prevent the same factors arising in the future.[17]
As noted by earlier,[18] Australia may already be dealing with some of the causal aspects better than the United States. For example, lengthy police interrogations of suspected, but innocent, persons resulting in false confessions, are much more likely in the United States, where unlike Australia, the majority of States in that country do not require video or audio taping of the police questioning.[19] However, in addition to the areas noted above, other known problematic causal factors which may apply in Australia include: faulty eyewitness identification, race, overzealous policing prosecutorial misconduct, and incompetent legal representation.
Additionally, the criminal justice system will never be perfect if for no other reason than the innate fallibility inherent within any body that relies on human beings for its functioning. Despite Australia’s high-quality criminal justice system, there will always be some small but indeterminate number of innocent, yet convicted, persons notwithstanding the protections offered by the legal system. As such, to more comprehensively address the problem of wrongful convictions in Australia, preventative and corrective measures need to be mutually adopted. Due to word limitations, this article concentrates only on issues relating to the need for DNA innocence testing.[20] This is one of the areas within the broader category of correction of wrongful convictions that requires urgent attention in Australia.
Recognition that Australia’s criminal justice system is fallible beyond the point of the traditional conviction and appeal mechanisms leads to the conclusion that there have been, are, or may be, innocent people within Australian prisons. Once convicted, and after having exhausted all avenues of appeal against their conviction, such people have few options. The following section considers what avenues or institutions are presently available for people who are trying to prove their innocence.
Innocence Projects take a number of potential forms. In essence they are generally university-based, student-resourced, academically-supervised, and lawyer-instructed pro-bono investigations into claims of wrongful conviction. The ultimate aim of innocence projects is securing the release of innocent people from prison.[21]
Innocence Projects commenced operation in Australia in mid 2001, over a decade after the Innocence Project in New York was created by Barry Scheck and Peter Neufeld. The first and currently the only Innocence Projects fully operational in Australia are established at Griffith University Law School in Queensland and at the University of Technology, Sydney (UTS) in New South Wales. The Victorian Innocence Project is expected to be operational in the second half of 2005 and a Project for Western Australia is anticipated within the next two years. Investigation of claims of wrongful conviction is the predominant activity of the Australian Projects.
The ambit and activities of the Griffith University Innocence Project are outlined for the purpose of demonstrating Innocence Project style work. It should be noted that as each Innocence Project is responsible for its own ambit and procedures, the following description of the Griffith University Innocence Project is not indicative of other innocence projects.
The Griffith University Innocence Project operates as a post-appeal body created to assist the wrongly convicted in Queensland and other parts of Australia where an Innocence Project is not currently established. At the time of writing it has received over 300 requests for assistance.
The strict criteria and ambit established at the Griffith Project (outlined below), reflects its role as a last resort for applicants claiming wrongful conviction beyond the traditional criminal justice system avenues. Applicants are required to exhaust their typical appeal time period prior to making an application to the Innocence Project. Further, the Project does not act in a solicitor/client relationship. In line with its role to undertake investigations for applicants claiming actual innocence, it is concerned with the discovery of new evidence of innocence, as opposed to reviewing or considering legal arguments. In sexual offence cases where is the issue is consent, DNA will not be probative of guilt or innocence and as such, these cases are generally removed from the ambit of the Project. Some Innocence Projects will take on cases that involve defences however, the Griffith Project’s strict ambit is designed to allow the Project to focus on cases where the applicant was essentially not involved in the offence.
The Griffith University Innocence Project aims to investigate cases where:
| • | a person has been convicted of an offence and the initial appeal period to the respective jurisdiction has expired; and |
| • | the person claims to be innocent of the crime of which they were convicted; and |
| • | DNA testing may provide new evidence of innocence; and/or |
| • | no DNA evidence is available but there is a real possibility that other new evidence may prove innocence. |
The Project does not accept cases where:
| • | a conviction would be overturned through a technicality rather than innocence; |
| • | the applicant’s claim to innocence is based on the establishment of any type of defence (such as self defence or provocation); |
| • | there is an admission of sexual contact in sexual offence cases; |
| • | the applicant is currently on or awaiting trial, or where appeal time limitations have not yet expired. |
Procedures
Cases are subject to a four-stage screening and investigative process. These are:
| (1) | Initial screening: determining whether the case generally falls within the ambit of the Project; |
| (2) | Initial Investigation: A further review of the case based on documentary evidence; |
| (3) | Full Investigation: To seek out possible new evidence of innocence; |
| (4) | Referral to a pro-bono lawyer to act as the solicitor for the applicant where the case is to be considered for an appeal or pardon petition. |
The stages above vary in length, some initial investigations taking months and full investigation often taking years. Even in DNA-based cases of wrongful conviction, the majority will be supported with other evidence of innocence and all require a full examination to determine how probative the DNA evidence will be. Years of investigation prior to exoneration, is typical of innocence work around the world. The procedures undertaken by the Innocence Project result in the vetting or rejection of many claims.
While Innocence Projects offer a unique and valuable resource through their student-centred investigative activities, they are also typically under-resourced and under-funded. In addition, being relatively new additions to the criminal justice system, they are faced with unique issues regarding access to evidence and information. This aspect is further discussed in this article when examining some of the current issues for the investigation of DNA-based wrongful conviction claims.
The New South Wales Innocence Panel, undertook work related to Innocence Projects, but was not affiliated with them. The Panel was established in October 2001, in recognition of the need to allow access to DNA technologies for convicted but potentially innocent people, in relation to forensic evidence collected at the scene of the crime.[22] The Panel consisted of a selection of members from within the criminal justice profession, including a judge, members of the NSW Police Service, the Director of Public Prosecutions, the NSW Privacy Commissioner and representatives of victims of crime.[23] Prior to its operation being suspended in August 2003, this Panel would request the police and health authorities to undertake searches for the specified items.
The Panel’s primary role was to facilitate DNA testing for applicants claiming innocence who had been convicted of serious crimes (such as murder, manslaughter and serious sexual assault).[24] The DNA sample taken from the applicant could then, for example, be compared with DNA found at the crime scene. As such the Innocence Panel did not investigate claims of wrongful conviction but facilitated tests that would be important to any investigation, and could have supplemented investigations by either Innocence Projects or other lawyers.
It appears that an application by convict Steven Jamieson led to the suspension of the Panel. Protesting his innocence from the beginning, Jamieson was convicted in 1988 of the rape and murder of Janine Balding, a particularly brutal crime that shocked and horrified Australia.[25] The New South Wales Innocence Panel undertook DNA testing and amidst concerns about the impact of such reinvestigation on the victim’s family, the case attracted considerable media attention. The New South Wales Innocence Panel was then suspended prior to the findings of these tests becoming available. Moreover, the full results of the testing which identified two DNA profiles but continued to exclude Jamieson, were withheld from the lawyer: ‘The (DNA) results are very interesting because they continue to exclude Jamieson as a suspect. They have identified two people but they will not tell me who they are.’[26]
The reason cited by the New South Wales Police Minister John Watkins for the suspension of the Innocence Panel was insufficient ‘checks and balances to protect anyone other than the applicant.’[27] A review of the Innocence Panel was recently conducted, but it is unknown at this stage if it will reopen, and if so, in what form.[28]
Occasionally cases, particularly highly publicised cases, are fortunate enough to attract a Royal Commission inquiry into their conviction, such as occurred with the Chamberlain convictions.[29] The Executive has the power to order a Royal Commission or other similar inquiry into a claim of wrongful conviction. Royal Commissions when they do occur are invaluable in the investigation they undertake. However, they are extremely rare and accordingly inadequate as a potential mechanism to investigate claims of wrongful conviction, including any DNA based claims of wrongful conviction.
A variety of organisations deal with complaints against police or official or prosecution misconduct. These have the potential to relate to aspects of wrongful conviction. For example, the Crime and Misconduct Commission (CMC) in Queensland, following Frank Button’s successful appeal (discussed later), undertook an investigation into aspects of his wrongful conviction, with a particular focus on forensic testing and procedures.[30] Such investigations into claims of police misconduct have the potential to incidentally uncover evidence of innocence. While the CMC’s misconduct jurisdiction covers official misconduct in the Queensland public sector, including the police service, statutory authorities, universities, local authorities, courts, prisons and by elected officials, it does not extend to any investigation of claims of innocence. [31]
Other Australian States have organisations similarly created to investigate complaints of official corruption, not claims of wrongful conviction. For example, some such organisations are the Anti-Corruption Commission (Western Australia); the Independent Commission Against Corruption (New South Wales); the Police Integrity Commission (New South Wales); the Police Complaints Authority (South Australia); and also the various State Ombudsman. These organisations may at times deal with issues related to wrongful conviction, but they do not investigate claims of wrongful conviction.
The current situation for innocence applicants in Australia is bleak. There are several urgent issues relating to investigation of DNA-based claims of innocence. Wrongful conviction claimants typically have:
| (1) | no right to have biological evidence or crime scene samples preserved; |
| (2) | no right to information regarding biological evidence for innocence purposes; |
| (3) | no right to access the biological evidence; and |
| (4) | no right to have DNA innocence testing performed, either at the respective state forensic testing centre or at an alternative independent centre. |
These issues for innocence investigation and exoneration are perhaps best exemplified through the case of Frank Button. Button was convicted of rape and spent almost a year in prison before additional DNA testing was undertaken prior to his appeal. This later testing included a bed sheet that had not originally been tested, and excluded Button as a contributor to the seminal stains on it. In addition, further testing of the complainant’s swabs resulted in the conclusion that the same male was the donor of the sperm on the bed sheet and the swab, effectively exonerating Button.[32]
If Button’s conviction had not been corrected at appeal, he would probably have remained wrongly convicted and imprisoned for the length of the sentence imposed. Under the current Queensland policy on preservation of evidence, the biological evidence relating to his trial and appeal would most likely have been destroyed or the bed sheet returned to the family of the victim. If he was fortunate enough to have it, or samples from it, preserved, he would not have the right to know that such evidence was still available. Nor would he have the right to have a DNA test performed on the evidence. As such, it is likely that Button would have been left in prison, not only wrongly convicted but also prevented from establishing his innocence.
Such failures are not limited to Australia. In the United States, issues regarding the access to evidence, as well as preservation of evidence are exemplified by cases such as Larry Johnson. Johnson was convicted of rape and sodomy in 1984 and sentenced to life in prison, plus 15 years.[33] Johnson contacted the Innocence Project in New York in 1996 and all attempts to obtain the rape kit were thwarted until 2001 when the Supreme Court of Missouri adopted a rule allowing for the filing of motions seeking post-conviction testing. In March 2002, the Circuit Attorney’s office agreed to the testing and on 26 July 2002, Johnson was finally exonerated. He spent a total of 18 years in prison for a crime that he did not commit, nine of which were spent merely trying to gain access to evidence which was always readily available, but to which he was denied.[34]
Australia’s failure to provide appropriate avenues to potentially prove innocence through DNA evidence and testing, cannot equate to justice in a modern society that must at the very least recognise the possibility of wrongful conviction. This situation is more than unsatisfactory. It can in effect, remove the possibility for persons claiming to be innocent but convicted, to prove their innocence through DNA evidence, despite DNA often being the most probative evidence of guilt or innocence available. These issues are discussed below.
The general position in Australia is that the preservation of evidence post-appeal is not required. Outside of DNA samples, a policy of return or destruction of exhibits appears to exist.[35] This ultimately impacts on how effective Innocence Projects or other organisations can be, in uncovering evidence of innocence for wrongly convicted people.
As such, Innocence Projects in Australia are experiencing similar frustration to that experienced in the United States. Innocent but incarcerated people, whose futures rest on whether the forensic evidence is still available for DNA testing, are likely to be left without redress because the evidence that could potentially prove innocence is simply not available. Neufeld & Scheck[36] suggest that in approximately 75% of old cases in the United States, evidence has been either lost or destroyed. This ultimately leaves innocent but convicted people, and victim’s families, without any avenues for exposing the truth.[37]
The experience of the New South Wales Innocence Panel highlights this point for Australia. On 11 January 2002, the Deputy Commissioner for Police in New South Wales, issued a moratorium against the destruction of crime scene exhibits. As at July 2003, the NSW Innocence Panel had received 13 applications, only two of which had crime scene evidence still in existence. Of these two, only one contained a DNA profile.[38]
In Queensland, there is no legislation requiring the preservation of evidence in regard to police and other law enforcement agencies. The Australian Law Reform Commission (ALRC) has noted the absence of rules regarding the preservation evidence: ‘The Crimes Act does not prescribe a minimum period for retaining crime scene samples. In some cases, a person might seek access to a crime scene sample many years, or decades, after the offence occurred.’[39]
Without such preservation of evidence, any current or future institutions created to investigate claims of wrongful conviction cannot efficiently undertake their work and, as a result, applicants will remain wrongly convicted.
In addition to the preservation of evidence, formal mechanisms and standards to gain access to evidence is required. There are few rules governing access to evidence. Convicted persons have no automatic right to that evidence, and no criteria have been established that will specify when a convicted person may have access to biological evidence for the purpose of trying to prove their innocence.[40] Whatever processes are implemented in this regard, it is essential that they be independent, as demonstrated by the experience of the New South Wales Innocence Panel.
As stated earlier, the Panel was suspended after DNA evidence relating to an applicant appeared to reveal probative evidence of innocence in a high profile case. As such, the Panel was suspended when it finally came to the point of providing the very information for which it was created. Such an occurrence highlights the absolute need for any such innocence investigation and DNA testing to be completely independent from the police and prosecution authorities, as well as free from public and political pressure. The Queensland Law Society in their submission during the CMC inquiry into specific issues of the Frank Button case,[41] noted that all expert evidence ‘should be at arms length from the Prosecution’[42] and that this same principle should apply post-conviction/appeal.
Finally, Australia needs to consider better means of providing DNA innocence testing. No legislation has been enacted to facilitate DNA innocence testing, yet every State allows for additional DNA testing for the purposes of a ‘cold hit’, that is, the opportunity to match crime scene evidence with that of DNA on file for prisoners or others currently suspected of crimes.[43] In addition, Crim Trac was created for the sharing of such DNA information between States.[44]
Applicants, their lawyers and organisations such as Innocence Projects must have appropriate information and access to evidence for innocence testing. To deny such access is, to quote The Honourable Mervyn Finlay QC in his Review of the Innocence Panel, ‘unconscionable’:
It is unconscionable and offends social standards of fairness to deny persons in custody a right of access to evidence for tests that could produce persuasive evidence of innocence by arbitrary time barriers within which application must be made.[45]
Without formal guidelines in place, the process of obtaining evidence is likely to remain a long and arduous task, and one lacking in sufficient clarity to overcome further obstacles relating to information, access and DNA testing for innocence purposes. As such, guidelines or legislation which establish the requirement to preserve evidence, and the criteria and eligibility to gain access to post-conviction/appeal innocence evidence and DNA testing are required. Law Reform bodies in Australia are considering the need for a better legislative framework for utilising DNA for innocence purposes.[46]
The Australian Law Reform Commission (ALRC) has recommended legislative reform to require the permanent retention of crime scene samples in order to facilitate DNA innocence testing and noted:
In the interests of justice, it is important to ensure that crime scene samples are retained for a sufficient period, and in appropriate conditions, to ensure they are available for persons seeking to rely on the samples to establish their innocence. [47]
In New South Wales, the Innocence Panel Review, in line with the ALRC’s recommendations, has suggested that legislation be enacted for the long-term preservation of and access to, crime scene evidence:
... the Government consider amending the Crimes Act 1900 (or by such legislation as Parliamentary Counsel may advise) to require long term retention of forensic material found at the scene of serious crimes to facilitate post-conviction analysis.[48]
The Victorian Parliament Law Reform Committee recently held an Inquiry into Forensic Sampling and DNA Databases to consider the preservation of and access to DNA samples for purposes of both criminal investigations and potential exoneration in that State.[49] The Committee expressed concern regarding the failure to preserve evidence within Australian jurisdictions and recognised the need for innocence testing. They also noted the establishment of an Innocence Project in Victoria and have recommended that the Attorney General establish a post-conviction review process for DNA evidence.[50] Further, they recommended that funds be made available for appropriate DNA innocence testing:
The inquiry concluded that financial assistance should be available, subject to clear eligibility criteria, to support the re-testing and review of potentially exculpatory DNA evidence in preparing for possible appeals against wrongful convictions...and funds be made available through a legal aid allocation for re-testing and analysis of relevant DNA evidence.[51]
As such, Victoria has recommended measures which could work in conjunction with the Innocence Project or other organisations there, just as measures implemented in Queensland and other States, should facilitate DNA access and testing for innocence purposes both for Innocence Projects or like-minded organisations and applicants generally.
In the United States, over thirty states have now legislatively addressed the need for both preservation of and access to evidence for DNA innocence testing.[52] These issues are being further addressed at the federal level with the Innocence Protection Act. Currently undergoing congressional review, this Act is the latest of several bills which, if passed, would facilitate preservation of and access to forensic evidence for the purpose of DNA innocence testing.[53] This can be contrasted to the states of Australia, which currently offer no requirement to preserve evidence, no legislative or other apparent right to access any biological evidence and no right to undertake DNA innocence-testing.
In light of the issues raised and potential reform recommended by various bodies within Australia, any guidelines or legislation implemented should provide, amongst other things, for the following:
| (1) | the preservation of crime scene evidence; |
| (2) | the relevant scientific testing organisations with the authority and responsibility to respond to requests for information which are made directly to the centres from applicants, their legal representatives and/or Innocence Projects; |
| (3) | the applicants, legal representatives and/or Innocence Projects with the right to access any available evidence on behalf of the applicants from the appropriate scientific testing organisations, for the purposes of innocence investigative activities, including for the purpose of independent DNA testing; |
| (4) | authorisation for the appropriate scientific testing organisations to undertake DNA innocence tests upon receipt of a request from the applicants, their legal representatives and/or Innocence Projects; and |
| (5) | funding to meet the costs associated with: |
| • | gathering of any information to respond to inquiries relating to the above; |
| • | the provision of any DNA information, |
| • | access to evidence, and |
| • | DNA innocence testing. |
The reform measures detailed above have resource implications, particularly in light of recommendations for funding to cover costs associated with innocence testing. As such, appropriate criteria limiting the situation when DNA innocence testing is undertaken will need to be formulated. Expenditure of public money must be justified. The author does not suggest that an applicant’s belief alone in his or her innocence would justify such expenditure and resources involved in DNA innocence testing, as it is likely that requests for insufficiently probative DNA testing would then be made. If the resource implications involved with DNA innocence testing are to be justified, then criteria should be established so that DNA testing will take place in cases where it would offer probative value. Prior investigation of cases can lead to such a determination and should alleviate financial concerns that would otherwise arise with, for example an automatic right to DNA innocence testing.
Innocence Projects potentially operate as a cost-effective resource in this regard. The Griffith University Innocence Project for example, undertakes serious examination of claims of wrongful conviction and a substantial percentage of these cases are rejected, or vetted, through their processes so that fanciful requests for testing that would not be probative of guilt or innocence, are not put forward.
In addition, other methods to cover the costs involved with DNA innocence testing may be possible. For example, if the applicant desires to have the biological sample tested at an alternative independent laboratory from which originally performed the tests, it may be appropriate for the applicant to meet the costs. There are over 30 States in the United States which legislative allow for DNA innocence testing, with varying legislative provisions applying regarding who meets the expense of the DNA testing.[54]
While resources are a legitimate concern, at the same time the cost of a miscarriage of justice would outweigh that of a potentially exonerating test, as was noted in R v Button:
It may well be that laboratory testing is expensive ... but the cost to the community of that testing is far less than the cost to the community of having miscarriages of justice such as occurred here.[55]
Finally, it might be argued that with limited resources, the community must resign itself to a certain number of wrongful convictions being an inherently and acceptable part of the criminal justice system. A balance must always exist between available resources and the needs of a wide variety of unquestionably worthy causes. At the same time, if DNA testing is available to undo the horror of a wrongful conviction, will be probative of guilt or innocence and is subjected to appropriate criteria prior to testing being undertaken, the balance is arguably met. Ultimately, as eloquently stated by Woffinden,[56] ‘It is wrong to keep innocent people in prison. That is a truth so basic that no amount of politics, of bureaucratic expedience and judicial casuistry, can alter it’.
In a world of ever-increasing scientific technology, the capacity to review convictions utilising forensic evidence is inevitable. However, there is currently an urgent and pressing need for mechanisms to force the preservation of evidence, enable access to biological evidence and facilitate the DNA innocence testing of such evidence.
In the face of contemporary Australian discussion, and lessons learned both from Australia and overseas, it is imperative that applicants, lawyers and organisations such as Innocence Projects, be given access to information that may potentially aid in exonerating a convicted yet innocent person. In line with recommendations made by the ALRC and other organisations within the criminal justice system, preservation of evidence, access to forensic biological evidence, and the right to undertake DNA testing must be granted in some form.
It is only when legislation is enacted that clarifies the processes, criteria and eligibility for applicants to gain access to evidence and the right to DNA testing, that proper investigation of DNA-based claims of wrongful conviction will occur. At the same time, any such DNA-based reforms must not be unduly promoted as being sufficient to address the broader problem of wrongful conviction.
While applicants claiming to be wrongly convicted are prevented from the opportunity to prove their innocence through DNA testing, Australia is demonstrating complacency towards all parties concerned. If an innocent person is convicted, then the guilty person remains at large with the potential to commit further crime. Until Australia legislates to facilitate DNA exonerations there will always remain, questions of innocence.
[*] Director of the Griffith University Innocence Project; Executive Director of the Australian Innocence Network; Lecturer, Griffith University Law School, Gold Coast Campus. Lynne’s doctoral thesis examines Institutions and Mechanisms for the Correction of Wrongful Conviction with Recommendations for Queensland and Australia. The author wishes to acknowledge the important research assistance provided by Kobie Mulligan in the production of this article. The author wishes to thank Professor Eric Colvin of Bond University for his input on an early draft of this paper. She also wishes to thank Professor Jan McDonald for her valuable feedback in the preparation of this article and for the helpful comments by the anonymous reviewer for the Deakin Law Review. The views expressed in this article are those of the author and not necessarily those of the Innocence Project and/or the Australian Innocence Network.
[1] This definition fits with the Innocence Project movement generally.
[2] Innocence Project, as of August 12 2004 <http://www.innocenceproject.org> .
[3] Innocence Project <http://www.innocenceproject.org> .
[4] Peter Neufeld and Barry Scheck, ‘Commentary’ in Taryn Simon, The Innocents (2003) 9.
[5] The Honourable Mervyn Finlay QC, Review of the NSW Innocence Panel, September, 2003, 14.
[6] For a Canadian example see: The Honourable Fred Kaufman, C.M., Q.C, The Commission on Pro-
ceedings Involving Guy Paul Morin (1998). For a United Kingdom example see: Royal Commission on
Criminal Justice Report, The Birmingham Six (1993)
[7] 121 convictions have been quashed as of 30 April 2004 by the Criminal Cases Review Commission.
See <http://www.ccrc.gov.uk> .
[8] Evan Whitton The Cartel: Lawyers and Their Nine Magic Tricks, (1998) 11.
[9] C Ronald Huff, Ayre Rattner, Edward Sagarin, Convicted But Innocent: Wrongful Conviction and
Public Policy (1996) 61.
[10] Barry Scheck and Peter Neufeld ‘Commentary’ in The Innocents (2003) 8.
[11] This percentage is based on the figures from the CCRC as of June 30 2004
<http://www.ccrc.gov.uk/latestnews/latestnews_case.html> : 6228 completed applications – 235 referrals
to the Court of Appeal = 235 x 100 = 3.77%.
6228
[12] This percentage is based on the figures from the CCRC as of June 30 2004. See
<http://www.ccrc.gov.uk/latestnews/latestnews_case.html>
Of the 235 referrals 184 have been heard, 128 convictions have been quashed. Therefore:
128 x 100 = 69.56%
184
[13] Re Conviction of Chamberlain [1988] NTCCA 3; (1988) 93 FLR 239. Alse see the Honourable Justice T.R. Morling, Royal Commission of Inquiry into the Chamberlain Convictions, Report of the Commissioner (1987)
[14] John Button, Why Me Lord? The John Button Story (1998) 29-31; Murder He Wrote (2002); Estelle Blackburn, Broken Lives (2001); Button v The Queen [2002] WASCA 35 (25 Feb 2002); see also the case of Kelvin Condren: R v Condren ex-parte Attorney General of Qld [1991] 1 Qd R 574.
[15] Anderson v R (1991) 53 A Crim R 421.
[16] R v Button [2001] QCA 133.
[17] Barry Scheck and Peter Neufeld, ‘Toward the Formation of Innocence Commissions in America’ (2002) 86 (2) Judicature 98. Also see North Carolina Actual Innocence Commission
<http://www.innocenceproject.org/docs/NC_Innocence_Commission_Mission.html> ‘Texas Senate Passes Bill to Create Innocence Commission’, Death Penalty Information Centre
<http://www.deathpenaltyinfo.org/article.php?did=613 & scid=64> .
[18] Finlay QC, above n 5.
[19] Eg Police Powers and Responsibilities Act 2002 (Qld) s 262.
[20] For more information relating to causal factors of wrongful convictions see Lynne Weathered, ‘Investigating Innocence: The Emerging Role of Innocence Projects in the Correction of Wrongful Conviction in Australia’ [2003] GriffLawRw 3; (2003) 12 Griffith Law Review 64.
[21] Ibid.
[22] Finlay, above n 5, 41.
[23] Finlay, above n 5; see also Gregor Urbas, ‘DNA Evidence in Criminal Appeals and Post-Conviction Inquiries: Are New Forms of Review Required?’ [2002] MqLawJl 6; (2002) 2 Macquarie Law Journal 141, 163.
[24] Finlay, above n 5, 9.
[25] Richard Ackland, 15 August 2003, ‘A Question Of Guilt That’s Too Hot To Handle’,
[26] Peter Breen MLC, 15 August 2003, on ‘Innocence Panel Lost’, Stateline NSW,
<http://www.abc.net.au/stateline> .
[27] Police Minister John Watkins on radio program PM, 11 August 2003, ‘NSW Innocence Panel, Which Reviews Criminal Cases Using DNA Evidence, Suspended’ <http://www.abc.net.au/pm> .
[28] Finlay, above n 5; see also New South Wales Legislative Council, Hansard Article no.61of 5 May
2004 <http://www.parliament.nsw.gov.au/prod/web/phweb.nsf/frames/hansard> .
[29] Lindy Chamberlain was convicted of the murder of her baby daughter, Azaria. Her husband, Michael was convicted of helping to dispose of the body. Chamberlain claimed that a dingo had stolen the baby from their tent at a camping ground near Ayers Rock. Azaria’s body has never been found. See the Honourable Justice T.R. Morling Royal Commission of Inquiry into the Chamberlain Convictions, Report of the Commissioner (1987). Also see Malcolm Brown and Paul Wilson, Justice and Nightmares: Successes and Failures of Forensic Science in Australia and New Zealand (1992).
[30] Crime and Misconduct Commission Forensics Under the Microscope: Challenges in providing Forensic Science Services in Australia (2002).
[31] Crime and Misconduct Commission:
<http://www.cmc.qld.gov.au/INVESTOVERVIEW.html> <http://www.cmc.qld.gov.au/RESPJURIS.html> See also the Crime and Misconduct Act 2001 (Qld).
[32] R v Button [2001] QCA 133 (paragraph number for judgment).
[33] Innocence Project: <http://www.innocenceproject.org> .
[34] Innocence Project:
<http://www.innocenceproject.org/case/display_profile.php?id=109> .
[35] New South Wales is currently the exception to this general policy. Preservation of evidence has been directed there since October 2001.
[36] Above n 4, 7. Also see Barry Scheck and Peter Neufeld, National Conference of State Legislatures (2000).
[37] Weathered, above n 20.
[38] Finlay, above n 5, 10.
[39] Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information, Report no 96, (2003) 1120.
[40] Previously in New South Wales under the Innocence Panel guidelines, searches and comparative testing of DNA samples were instigated for applicants convicted of serious offences such as murder, manslaughter and serious sexual assault (not including indecent assault). See The Innocence Panel: <http://www.nsw.gov.au/innocencepanel> .
[41] This is another Queensland case of wrongful conviction that was corrected at appeal. See: R v Button [2001] QCA 133.
[42] CMC Report, above n 30, 24.
[43] For example see: Police Powers and Responsibilities Act (Qld) s 314.
[44] Crim Trac: <http://www.crimtrac.gov.au/> .
[45] Finlay, above n 5, 47.
[46] ALRC above n 39 1117; Victorian Parliament Law Reform Committee, Forensic Sampling and DNA Databases in Criminal Investigations, Report no 58, 2004 3; see also Finlay, above n 5.
[47] ALRC above n 39, 1120. See also recommendation 45-1, 1124
[48] Finlay, above n 5, 51.
[49] VPLRC, above n 46.
[50] VPLRC, above n 46 Recommendation 13.1, 430.
[51] VPLRC, above n 46 ,431-434.
[52] Innocence Project: <http://www.innocenceproject.org>
[53] The Innocence Protection Act of 2003 is part of a larger bill entitled Advancing Justice Through DNA Technology Act 2003. This Bill was last read to the 107th congress on October 1 2003. See: <http://www.innocenceproject.org/legislation/index.php>
[54] Innocence Project Legislation <http://www.innocenceproject.org/legislation/index.php.>
[55] R v Button [2001] QCA 133.
[56] Bob Woffinden Miscarriages of Justice (1987) 245-246.
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