While these cases highlight the potential for error in investigations, they also demonstrate how key decisions made by key actors in the criminal justice system can either deliberately or unintentionally establish race as a defining element of criminality see also Taslitz More broadly, the overrepresentation of minority groups in the justice system has the potential to create and perpetuate perceptions of criminality or risk Fitzgibbon ; Hazlehurst and Dunn These perceptions allow authorities to claim that discriminatory practices are not the result of overt or subconscious bias, but rather of disproportionate criminality among certain groups Fitzgibbon ; Ruparelia This extends to the broader community, where overrepresentation has led to a tendency for the public to overestimate the number crimes committed by racial minorities Ghandnoosh Moreover, those who more readily link criminality with minority status are more likely to support punitive policies to control the risk of offending among that group Ghandnoosh Such tendencies are problematic to criminal justice systems focusing on managerialist approaches that attempt to make policing a more efficient process through the actuarial prediction of crime and the management of risk Fitzgibbon The danger is that enveloping a perception of risk within criminal justice policy potentially entrenches and formally systematises the belief that certain groups represent a disproportionate threat to public safety.
A legitimate concern that people come to be labelled as naturally predisposed to crime, inherently worthy of suspicion and, therefore, the focus of excessive and unwarranted targeting by the criminal justice system. They argue that, in the US, the combination of public opinion and state power have reflected a power imbalance along racial lines that has led to the disproportionate number of wrongful convictions among racial minorities Parker It follows that, in this regard, when working in tandem with perceptions of risk, managerialist criminal justice systems reflect and contribute to marginalisation.
This policy was largely based on stereotypes and myths about Indigenous offending, particularly the sexual abuse of children Tedmanson and Wadiwel Mal Brough, then Minister for Indigenous Affairs, made a now recanted claim that paedophile rings were operating in remote Aboriginal communities in the NT Anthony and Blagg The ensuing policy changes were explicitly aimed at Indigenous communities and led to substantially increased law enforcement targeted at not just alleged sexual abuse and domestic violence, but also alcohol consumption and pornography.
The intervention has also relied upon the Australian Crime Commission as a support mechanism for local law enforcement. The Commission possesses coercive powers that effectively remove the right to silence, compelling suspects to respond to questions posed by Commission officers Australian Crime Commission While there are human rights issues in the implementation of such mechanisms, their use and targeting of a specific population also creates a fertile ground for wrongful conviction.
Greer suggests diminishing or removing the right to silence threatens due process and heightens the risk of false confessions. Given a context where members of the Indigenous population are already vulnerable in their interactions with the criminal justice system Eades , it is hazardous to add to the systemic environment where this protection is removed. Accompanying the perception of criminality and racialised responses of the criminal justice system, cross-cultural communication difficulties when interacting with the system present further risk to Indigenous Australians and the potential for error Weathered A common example rests in the communication difficulties that arise in the complexities of legal language, which creates a barrier between the legal profession and its ability to effectively communicate legal issues with the general public Gibbons The inaccessibility of legal language has drawn criticism because of its tendency to avoid plain English, which can often make elements of the criminal justice process simply inaccessible for lay people.
Such language differences epitomise an inherent power imbalance between those unfamiliar with the process and language of the law and practitioners embedded within it Gibbons The issue is exacerbated for some Indigenous Australians for whom English is not their first language, and who are already disadvantaged by inequality regarding access to education Schwartz and Cunneen Importantly, awareness of these matters and efforts to improve cross-cultural training have increased significantly and continue to be implemented and revised throughout the justice sector Farrelly and Carlson ; Grossman et al ; NSW Police Despite the efforts being made to improve cross-cultural training, it remains important to recognise how essential language is, given the potentially severe consequences of poorly trained legal counsel representing Indigenous clients.
The case of R v Kina illustrates how a lack of commitment and insufficient ability to understand Indigenous clients can lead to a miscarriage of justice. Kina was convicted of murdering her husband despite physical and psychological abuse that she had suffered for many years during their relationship.
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In most circumstances, being a victim of long-term domestic violence would have been raised at trial as an adequate defence of provocation and self-defence. These deficiencies meant that, rather than eliciting crucial evidence that would have considered her past, cross-cultural language barriers led the lawyers to deem Kina unwilling to give evidence before a jury MacKinlay, Thatcher and Seldon When presented with direct questions of this types, Indigenous people often respond with periods of silence that represent a range of language and cultural differences including English proficiency and respect for elders and authority Eades , , The resultant short trial lasted less than half a day due to an inadequate defence that did not raise the arguments of provocation or self-defence.
It was not until five years into her life sentence that an appeal heard evidence of the abuse Kina had suffered at the hands of her husband, and her conviction was quashed by the Supreme Court.
Innocence and Wrongful Convictions
Gratuitous concurrence represents a situational strategy whereby Indigenous Australians tend to agree with questions by default when confronted by White Australians in power in an attempt to placate the questioner Eades ; Lauch The concerning aspect of this strategy involves Indigenous people agreeing to questions by default.
Gratuitous concurrence was a factor in the conviction of Basil Dumoo, who in was convicted of possession and consumption of alcohol in a restricted area Dumoo v Donald Anthony Garner. The only evidence supporting the charge was incriminating admissions made during a police interview. One was that his admissions had not been made voluntarily due to the interviewing officer not establishing or properly informing Dumoo of his right to silence, highlighting the susceptibility of Indigenous defendants to misunderstandings of the justice system.
The other argued that the evidence should be deemed inadmissible due to the circumstances in which the admission was elicited. The Anunga guidelines were designed to lessen the disadvantage that many Aboriginal people face when dealing with the police R v Anunga. Despite this requirement, a transcript of the interview indicated Dumoo had been asked whether he understood that he was not legally required to answer the questions being asked of him.
Eades suggests such willingness to agree represents a strategy to appear socially amenable and to win the favour of the questioner and hasten the interaction. This strategy, in combination with the lack of appropriate representation during the interview, led to the recognition of an error. The miscarriage of justice suffered by Dumoo may be indicative of a trend when the demand for criminal justice efficiency interacts with mechanisms aimed at protecting due process that create investigative delays. While many safeguards to ensure cross-cultural understanding have been developed in Australia for example, the Anunga guidelines or Law Enforcement Powers and Responsibilities Regulations NSW , their development does not protect against a perception of inefficiency or ignorance by key justice system actors.
These perceptions may even be encouraged when managerialist shifts in policy begin to emerge, or when departmental cost-cutting and efficiencies become priorities. One example of the prioritization of efficiency over the cultural appropriateness of the law rests in the conviction of five Indigenous youths in NSW. Ian, Garry and Vivian Campbell and Brett and Steven Rotumah were convicted of affray after a violent incident where they had confronted two men responsible for racist graffiti.
Central to their convictions were the admissions the youths made to the police during the investigation. An appeal to the conviction was heard on the grounds that police had failed to inform the NSW Aboriginal Legal Service and failed to provide the defendants with adequate, culturally appropriate representation prior to conducting the interviews Campbell v Director of Public Prosecutions.
Specifically, reg 33 1 states that:. If a person detained is an Aboriginal person or a Torres Strait Islander The Court found that a miscarriage of justice had occurred because the police had failed to notify the Aboriginal Legal Service of the detention of the defendants, yet proceeded with their interviews. In quashing the conviction on appeal, Hidden J found that if the admissions had not been made to police, the defendants would not have been convicted. In the cases of Basil Dumoo and the Rotumahs and Campbells, the police did not act with any deliberate malice in failing to provide the suspects with the necessary representation and support.
Similarly, the system had itself attempted to limit cross-cultural and language issues by implementing guidelines, policies and laws. However, both cases suggest that oversight can occur when officers hasten the investigative process and aim for efficient outcomes.
In this sense, the inability of the system to ensure a suspect is suitably represented occurs due to the pressures of efficiency and expediency being prioritised over oversight, regulation and direction in upholding due process. Accordingly, minor offending, such as that by the Rotumahs and Campbell or Basil Dumoo, may have a greater potential for a miscarriage of justice, as police and prosecutors might place less emphasis on rigorous investigation and potentially be encumbered by time and resource constraints.
Exacerbating this is the fact that less serious cases will likely not command as much, if any, attention from advocates willing to investigate post-conviction Gould and Leo The case of Campbell v Director of Public Prosecutions emphasises the importance of adequate legal representation when working on the behalf of Indigenous Australians.
It is important here to remember that even though this case may have not involved an Aboriginal legal service, the defence counsel remains entrusted with the responsibility to both properly inform suspects and defendants of their basic rights and protect the accused from the errors of the system. These errors may include the recognition of witness misidentification, police rushing to judgment, or the non-disclosure of potentially exculpatory evidence Bernhard If the defendant is significantly disadvantaged by the oversight of his or her representative in this role, a just outcome becomes less likely Bernhard Furthermore, it more broadly allows a jury to consider an alternative narrative to that being presented by the state in a criminal matter.
Publications by year
Imperfections in the criminal justice system have long intrigued the general public and worried scholars and legal practitioners, in Wrongful Conviction, criminologists C. Ronald Huff and Martin Killias present an important collection of essays that analyzes cases of injustice across an array of legal systems, with contributors from North America, Europe, and Israel. Lofquist Talia R. See All Customer Reviews. See, e. A, , Feb. Several international instruments provide for the right to compensation in the case of wrongful convictions.
The International Covenant on Civil and Political Rights, for example, requires that states compensate wrongfully convicted individuals under article 14 6. African Comm.
Generally, the right to compensation requires that there be a reversal or pardon of a final conviction, based on new, or newly discovered, facts that demonstrate that the conviction was unjust. The duty to compensate may not arise if the person somehow contributed to the wrongful decision. The terms and procedures of the compensation are to be established by national laws. Under the ICCPR, States Parties meet their obligations under article 14 6 in one or more of the following ways: incorporating the article directly into domestic legislation to create a statutory right to compensation; conferring discretion to an administrative or judicial body to determine whether awards of compensation should be paid; and utilizing the general power of domestic governments to make ex gratia payments.
Many national laws provide citizens with the right to seek review of unjust convictions and compensation for the damages they suffered—although most of the countries that have passed such legislation no longer apply the death penalty. In some countries, these rights are expressly enshrined in the Constitution. The Constitution of Spain, for example, guarantees compensation if damages arise from judicial errors. In others, like the United Kingdom, the rights are enshrined in specific acts. The terms and conditions of the revision and the compensation are often outlined in the Codes of Criminal Procedure or in specific statutes.
A few countries have instituted specific commissions that have the power to investigate and refer claims of wrongful convictions to a court. The Scottish Criminal Cases Review Commission has referred cases from its inception in . The United States has failed to adopt federal legislation to provide compensation to the wrongfully convicted.
Still, some states have adopted compensation laws, and exonerated people are sometimes able to receive compensation through state laws or civil lawsuits. The Court stated that compensation is due even where the domestic law or practice does not provide for such compensation; and that the purpose of Article 3 of Protocol No.
Related Wrongful Conviction: International Perspectives on Miscarriages of Justice
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