When a person is wrongfully convicted, the consequences can be profound and long-lasting. They often experience a range of negative emotions, including bitterness, loss, hopelessness, anger, and aggression. This article will discuss the concept and effect of wrongful conviction of persons in New South Wales, Australia.

What Is Wrongful Conviction?

Under the criminal justice system, this occurs when a person faces conviction for a crime they did not commit. Common causes of wrongful convictions in Australia include

  • overzealous and unprofessional police investigations,
  • weak circumstantial evidence,
  • corruption and misconduct by police, and
  • the use of unreliable and discredited expert evidence.

Wrongful conviction also covers the following situations where authorities:

  • arrest and detain, but release someone without charging them
  • detain and charge someone, but drop their charges prior to trial
  • try and acquit someone, but they remand them and deny bail

Other scenarios include where people are:

  • convicted but whose conviction has been quashed on appeal (this can also be divided into people who have, or have not, been granted bail prior to trial and/or after being convicted and the conviction being overturned)
  • convicted and have been sentenced to a non-custodial sanction that has been served/enforced prior to the appeal being heard (but whose conviction has been quashed on appeal)
  • tried and convicted, have exhausted all appeals but who later have their convictions quashed in an extraordinary appeal and no retrial ordered, or are found not guilty at such a retrial or have been pardoned.

Compensation for Wrongly Convicted Persons

Can wrongfully convicted individuals in Australia be given compensation in such situation?

The answer is generally no. Except for the Australian Capital Territory (ACT), people who have been wrongfully convicted and imprisoned may not be compensated because of the lack of a common law or legislative claim to compensation in any Australian jurisdiction.

However, a state or territory government has the option to make an ex gratia payment on its initiative or through a request by the affected party/parties. An ex gratia payment is a 'payment of money made or given as a concession.'

States and territories have the discretionary power to make these payments, which stems from the "Executive Power" that the Constitution grants the government. The Attorney General of the territory or the state decides whether to accept or reject a payment, and this decision is final and cannot be challenged in any manner.

The Wrongfully Convicted Kathleen Folbigg

Kathleen Folbigg, who was wrongfully convicted of killing her four children, is seeking compensation for her 20 years of wrongful imprisonment. After being pardoned and freed in June 2023, her legal team is pursuing a substantial compensation payout from the New South Wales government, with experts suggesting it could be the biggest in Australian history.

The process of seeking compensation involves legal proceedings and may result in an ex gratia payment. This is a payment that one makes out of moral obligation rather than a legal requirement.

The case has sparked discussions about the need for legal reform and the establishment of independent review bodies to prevent future miscarriages of justice. The compensation payout should reflect the significant harm caused by the wrongful conviction and the years of life lost due to the miscarriage of justice.

The Wrongfully Convicted David Eastman (ACT)

David Eastman, who spent nearly two decades in jail for a murder he was later found not to have committed, was awarded more than $7 million in compensation by the ACT Supreme Court. This decision came after he rejected a $3.8 million "act of grace" payment from the territory, which would have required him to waive his right to pursue any further compensation.

Despite the compensation figure falling well short of what he was seeking, Eastman's solicitor expressed that he was "pleased" with the result. The case is one of the nation's largest and most complex legal and political battles. It highlights the importance of seeking just compensation for wrongful imprisonment in Australia.

How Can We Determine the Amount of Compensation?

Levels of compensation for wrongfully convicted individuals both abroad and in Australia are typically less favourable than those for typical tort claims like carelessness or even claims like wrongful detention.

Moreover, cases of false imprisonment are highly unusual, making it challenging to determine a precise damage cap for the tort, but the following instances provide a sense of the amount awarded:

  • Coleman v Watson [2007] QSC 343, BC200709939. A protestor in Queensland who was refused entry into a sitting of Parliament and wrongfully removed and imprisoned by police officers for a matter of hours was awarded $20,000 plus interest. The judge found that the plaintiff had suffered little or no shame, indignity and mental suffering but nevertheless had had his rights violated.
  • Spautz v Butterworth (1996) 41 NSWLR 1. A NSW man who was faced wrongful arrest and imprisonment by police for 56 days pursuant to an ultra vires order of a magistrate (for failing to pay costs of an earlier unsuccessful prosecution) received $75,000 plus interest.
  • Zaravinos v NSW (2005) 214 ALR 234. A man received $25,000 plus interest as compensation for facing wrongful detention for three hours due to an arrest without reasonable grounds.
  • Re Conviction of Chamberlain (1988) 93 FLR 239. Lindy Chamberlain received an ex gratia payment of $1.3m, as well as $396,000 for legal costs and $19,000 for the family car which had been effectively destroyed as a result of forensic investigations. Authorities imprisoned her for approximately four years before they remitted her sentence and commenced an inquiry into the matter.

Is There Death Penalty in Australia?

While Australia officially abolished capital punishment in 1983, the specter of the death penalty still looms large in discussions of wrongful convictions. Its legacy casts a long shadow, serving as a stark reminder of the irreversible consequences of an error in the justice system.

Imagine a scenario where authorities wrongfully convict a person of a capital offence, and sentence them to death. They then spend years on death row before exoneration. The psychological toll is unimaginable, haunted by the near-brush with death and the years stolen by a miscarriage of justice. But beyond the personal tragedy, the death penalty in the context of wrongful convictions raises broader ethical and legal concerns:

  • Irreversible Error: Once executed, there's no turning back. An exoneration after the fact offers no solace for a life unjustly taken. The death penalty leaves no room for correction, making any error fatal.
  • Exacerbating Injustice: Wrongful convictions disproportionately impact marginalised communities, who are statistically more likely to face capital charges. The death penalty, in this context, becomes a potent symbol of inequality and systemic bias.
  • Undermining Public Confidence: Cases of wrongful convictions involving the death penalty can erode public trust in the justice system. The knowledge that judicial error has led to the loss of innocent lives shakes the very foundation of legal authority.

Australia's abolition of capital punishment has mitigated these risks. Yet, the legacy of the death penalty continues to inform discussions about legal reforms aimed at preventing wrongful convictions, such as:

  • Strengthening investigative procedures: Thorough investigations and robust evidence gathering are crucial to minimise the risk of errors.
  • Expanding access to legal counsel: Ensuring competent legal representation at all stages of the judicial process is vital for protecting the rights of the accused.
  • Scrutinizing eyewitness testimony: Eyewitness misidentification remains a leading cause of wrongful convictions. Implementing safeguards against such errors is essential.
  • Promoting DNA testing: Widespread access to DNA testing and its proper utilisation play a critical role in exonerating wrongfully convicted individuals.

Don't Let Injustice Win

If you believe you have faced wrongful conviction in Australia, get legal advice from an experienced criminal lawyer immediately. Your lawyer will help you explore your options for appeal and potential compensation. We can help with investigating matters that involve:

  • DNA evidence or DNA testing
  • Criminal appeal for a guilty verdict from an opposing party
  • False convictions that led an innocent person to stay for years in prison (or life imprisonment)

An experienced criminal lawyer from JB Solicitors can guide you through the process and work towards achieving the best possible outcome for your criminal law case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.