Wrongful convictions focus of address

The pitch for a Criminal Cases Review Commission (CCRC) in Australia to prevent wrongful convictions was explained by an expert in Brisbane last week.

Professor David Hamer, from the University of Sydney Law School, gave a free address, Wrongful convictions – kinds, causes and solutions at the Banco Court on Thursday.

Professor Hamer provided an overview of wrongful convictions in Australia, how they were treated by current law, and the prospects for reform, arguing that Australia should follow England (1997), Scotland (1999), New Zealand (2020), and Canada (date to be announced) in establishing such a commission.

Professor David Hamer

He said wrongful convictions were an inherent risk of the criminal justice system, and that risk increased with any dysfunctionality, such as biased forensic evidence or prosecution non-disclosure.

He pointed to recent high-profile cases, including Eastman (2018), Pell (2020), Neill-Fraser (2021) and Folbigg (2022-23), arguing that post-appeal mechanisms were an inadequate response to wrongful convictions.


“Through their design and their implementation, they set a very high bar for the defendant to even be granted leave for a further appeal,” he said.

“And while the bar for the defendant has been raised, post-appeal, the defendant’s capacities, by this time, will have declined.

“Many defendants – in prison, lacking resources and skills – are ill-placed to meet these demands, and often struggle to gain access to legal aid.

“Reversed wrongful convictions are exceptional.

“Very often defendants have to have the good fortune to have champions on the outside – friends, journalists, or pro bono lawyers – who are prepared to do a great deal of unpaid work in support of their cause.

“The degree to which finality is valued over justice gives the impression that the legal establishment is motivated by more than legitimate concerns about efficiency and closure, and is acting out of complacency, or a desire to prevent errors from coming to light.”


Professor Hamer said, in these respects, a CCRC was a far better solution, especially when compared to recent commissions of inquiry.

”An Australian CCRC can effectively improve criminal justice, increasing the rate of identification and correction of wrongful convictions, with a relatively slight investment of resources, and with minimal disruption to systemic finality,”  he said.

“Part of the reason for the CCRC’s efficiency is that it operates inquisitorially.

“The Australian inquiries, which are generally overseen by judges, tend to operate on highly adversarial lines, with expensive counsel assiduously defending their contrasting positions.

“Where wrongful convictions are concerned, involving potential system failures, it appears appropriate for a properly funded CCRC to approach the case from a different perspective rather than the system continuing along in the same deep-worn track.”

Professor Hamer was hosted by the Bar Association of Queensland, University of Queensland and Supreme Court Library Queensland. His presentation was chaired by Supreme Court Justice Ryan, with Higgins Chamber barrister Ruth O’Gorman KC as commentator.

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