Wrongful Convictions in Australia - Criminal Defence Lawyers Australia

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The following outlines what we know about wrongful convictions in Australia including some of the most prominent cases and notes the options available to innocent people who have been let down by the justice system in Australia.

For more on wrongful convictions, get in touch with our Criminal lawyers Sydney office for a confidential consultation.

Table Of Contents

What is a Wrongful Conviction?
Wrongful Conviction Compensation
Other Schemes of Compensation
Do You Get Anything for Being Wrongfully Convicted?
How Common Are Wrongful Convictions?
Wrongful Conviction Examples In Australia
Wrongful Conviction Statistics
How Do You Overturn a Conviction in Australia?
Limitations of Appeals

What is a Wrongful Conviction?

A ‘wrongful conviction’ occurs when a person is convicted of crime they did not commit. Being convicted of a crime you didn’t commit is one of the gravest injustices that could ever occur in Australia. Unfortunately, wrongful convictions do occur, in some cases resulting in an innocent person serving years in prison.

Wrongful Conviction Compensation

A wrongful conviction will not always result in compensation in Australia except for the ACT. States and Territories of Australia have the discretion to hand out ‘ex-gratia’ compensation payouts to people affected by a wrongful conviction. An ex-gratia payment is a one-off payment. Compensation can range from little to millions depending on the particulars of each case.

What is an ‘ex-gratia’ Payment?

An ex-gratia payment is a one-off payment which a state or territory government may choose to provide to someone affected by a wrongful conviction, on its own accord or due to a request by a party.

States and territories are able to make these discretionary payments, with their authority flowing from the ‘Executive Power’ provided to the government under the Constitution.

Payments are made at the discretion of the territory or state Attorney General, and a decision to refuse to make a payment is not reviewable in any way, with no guidelines imposed.

Other Schemes of Compensation

In New Zealand, a formal scale has been developed for ex gratia payments, including $NZ150,000 for each year in custody, in addition to up to $NZ100,000 for loss of livelihood during that period, and up to $NZ50,000 to help re-adjust to living in the community.

In the Australian Capital Territory (ACT), there is a mechanism under human rights legislation which enables individuals to seek compensation where they have been wrongfully convicted of a criminal offence.

Section 23 of the Human Rights Act 2004 (ACT) gives a person the right to be compensated according to law if:

they have been convicted by a final decision of a criminal offence and suffer punishment as a result of the conviction, and
the conviction is reversed, or they are pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice.

In 1995, David Eastman was wrongfully convicted of the murder of assistant federal police commissioner Colin Winchester and spent 19 years in gaol for the offence.

He was offered an ex-gratia payment of $3 million by the ACT Government, on the condition that he did not sue. He instead made a claim under the ACT’s human rights legislation and was subsequently awarded $7.02 million, over twice the original amount offered.

Do You Get Anything for Being Wrongfully Convicted?

A wrongful conviction does not automatically result in a legal entitlement to compensation in Australia. Wrongful conviction can entitle you to a compensation payout from the thousands to the millions.

Lindy and Michael Chamberlain were wrongfully convicted for the tragic death of their 9-week baby. As a consequence, they were sentences to imprisonment. Lindy had served about 4 years imprisonment but subsequently received a $1.3 million compensation payout by the Northern Territory Government in 1992.

In South Australia, Henry Keogh received a mere $2.5 million from the South Australian government in 2018. He served over 19 years in gaol, after being wrongfully convicted of his fiancée’s murder.

Terry Irving, an Aboriginal man from north Queensland, spent four-and-a-half years in gaol for a bank robbery he did not commit, however, 25-years later he is still waiting on compensation.

There are numerous further cases in which an ex-gratia payment is not provided, with no explanation – largely due to there being no requirement to do so.

How Common Are Wrongful Convictions?

A wrongful conviction occurs when an individual is convicted of a crime they did not commit. Although there are no good estimates of the true number of wrongfully convicted Australians, there have been at least 70 high profile cases of a person convicted of a crime they didn’t commit.

Data overseas indicates that there are likely a substantial number of wrongfully convicted people in Australia. The US Innocence Project, an organisation which investigates claims of wrongful conviction, has exonerated over 300 people in the thirty years since it began, many of whom served lengthy sentences of imprisonment.

Wrongful convictions can occur because of a variety of factors during both investigation and trial of a criminal case, including:

Overzealous and unprofessional police investigations;
Reliance on weak circumstantial evidence;
Corruption and misconduct by police;
Use of unreliable or discredited forensic evidence;
Racial profiling and bias policing; and
Witness misidentification.

Poor and inadequate legal representation may also mean a person is unable to have a fair trial, this is particularly the case if potentially exculpatory evidence was never presented to a jury.

Finally, once a person is convicted, their options to have their case reviewed become more and more limited – this can perpetuate miscarriages of justice and make it difficult for a wrongful conviction to get overturned.

Wrongful Conviction Examples In Australia

There have been a number of high-profile famous wrongfully convictions cases in Australia, the details of which can assist us in preventing further miscarriages of justice.

In 1980, Lindy Chamberlain was wrongfully convicted of murdering her infant daughter Azaria, despite Chamberlain’s claims that she had been taken by a dingo during a family trip to Uluru. A combination of flawed forensic evidence led at trial and sensationalist media reporting likely led to Chamberlain’s wrongful conviction. In 1988, Azaria’s matinee jacket was discovered which fit with the dingo story, resulting in Chamberlain’s acquittal.

In 1995, Western Australian man Andrew Mallard was wrongfully convicted of the murder of a Perth jeweller by the name of Pamela Lawrence. Mallard’s prosecution was largely based on an alleged confession he made to police, which was later found to be coerced. Investigators ignored clear exculpatory evidence showing Mallard could not have committed the murder, pursuing a charge despite all evidence to the contrary. After spending nearly 12 years in prison, Mallard’s conviction was quashed by the High Court of Australia in 2005.

The most recent wrongfully convicted person to be freed from prison is Kathleen Folbigg, who was convicted in 2003 over the deaths of her four infant children. Folbigg was convicted on the basis of diary entries which were said to have indicated her culpability as well as the apparent unlikeliness of having four children die in similar circumstances. However, it was later found that there was clear medical evidence the children had died of natural causes. Following two separate judicial inquiries, Folbigg was eventually given a pardon under the royal prerogative of mercy in 2023.

Her pardon followed summary findings prepared by former NSW chief justice Thomas Bathurst who led a recent inquiry into the convictions. Bathurst arrived at the view that there was reasonable doubt as to Folbigg’s guilt of each of the offences, with this largely based on new medical evidence.

This led to Attorney-General Michael Daley recommending that she should be unconditionally pardoned and released immediately.

Whilst this is a remarkable development, the question remains as to what will occur next.

Notably, the unconditional pardon does not take away her convictions and essentially means that she is not required to serve the remainder of a sentence.

In order for the convictions to be formally quashed, the matter will need to be referred to the Court of Criminal Appeal. If this is done, the matter will become subject to the appeal proceedings.

Once the conviction is removed, Folbigg may be able to launch civil action or other remedies.

In Australia, a person who is wrongfully convicted of a crime is not automatically legally entitled to compensation, except for in the Australian Capital Territory, unlike in many jurisdictions overseas.

Wrongful Conviction Statistics

There are no good estimates on the percentage of defendants who have been wrongfully convicted in Australia. However, there have been nearly 100 documented cases of wrongful conviction since 1922.

Common causes of wrongful convictions both in Australia and abroad include:

Overzealous and unprofessional police investigations.
Weak circumstantial evidence.
Corruption and misconduct by police.
The use of unreliable and discredited expert evidence.

A lack of quality legal representation is also a key factor in wrongful convictions in Australia, particularly during the process of appeals.

How Do You Overturn a Conviction in Australia?

If a person has been wrongfully convicted of a crime, they have the following options to have their case reviewed:

Appealing against their conviction to a higher court ‘as of right’ as part of a first right of appeal if appealing to the District Court as a consequence of a Local Court’s decision in NSW. The Supreme Court or High Court’s leave is required if you are appealing a decision of the Local or District Court.
Appealing against their conviction to a higher court a second or subsequent time on the basis of fresh and/or compelling evidence (only in South Australia, Tasmania, Victoria and Western Australia).
Seeking a judicial inquiry into the conviction (NSW only).
Appealing a Court of Appeal decision to the High Court of Australia.
Petitioning the Governor in the relevant State or Territory for the exercise of the Royal Prerogative of Mercy.

All jurisdictions in Australia allow a person to appeal their conviction or seek leave to appeal a conviction in a higher court if found guilty at trial. Whilst each State and Territory’s appellate criteria differs somewhat, an appeal will generally be heard if:

There is a claimed error on the application of law in the original trial, this could include the judge’s instructions to a jury, the admissibility or exclusion of pieces of evidence and any other question of law; or
There is a clear flaw in the jury’s verdict, including inconsistencies in the verdict or where the verdict could not be supported by the evidence put to them at trial.

Section 5 of the Criminal Appeal Act 1912 (NSW) outlines the appellate criteria for a person convicted on indictment in NSW. The section states that a person can appeal to the NSW Court of Appeal on the basis of a question of law alone, but may also seek leave to appeal on the basis of a question of fact or a mixture of law and fact. To ‘seek leave’ to appeal, means that the Court of Appeal must first be satisfied the case is of a kind that should be heard by the court first, before allowing an appeal hearing.

If convicted of an indictable (serious) offence in the District Court or Supreme Court, a wrongfully conviction person will need to seek leave to appeal to the Court of Criminal Appeal. Common grounds for appeal include:

A miscarriage of justice occurred, such as on the basis of incompetent or careless legal representation or other significant error at trial.
An error of law occurred at the original trial including the incorrect inclusion or exclusion of evidence, misuse of judicial discretion or a misdirection to the jury.
The conviction was unreasonable or cannot be supported by the evidence.

Generally, a person can only appeal against a guilty verdict once. However, a second or subsequent right of appeal applies if a person has “fresh” and “compelling” evidence that should, in the interests of justice, be considered on an appeal.

In rare cases, a wrongfully convicted person may be able to seek leave to appeal to the High Court – however special reasons for an appeal need to exist.

If an appeal is successful, appellate courts in all jurisdictions have a number of options in order to resolve the matter. These include acquitting the person, meaning the finding of guilt is overturned, or quashing the conviction and ordering a retrial so that the matter can be heard again.

Generally, a convicted person only has one appeal ‘as of right’ and the avenues for appeal / review of a conviction become more limited following this first appeal.

If a first appeal is unsuccessful, an appellate may seek special leave to appeal to the High Court of Australia. Generally, the High Court will only grant leave to hear an appeal if:

The matter involves a question or law that is of public importance;
A decision is required to resolve differences of opinion about the application of law; or
The interests of the administration of justice require the matter to be considered.

Leave to appeal to the High Court is rarely granted, and is reserved for exceptional cases involving important questions of law.

In South Australia, Tasmania, Victoria and Western Australia, legislation has been enacted which allows a person to make a second or subsequent appeal on the basis of ‘fresh and compelling’ (SA, Vic and WA) or ‘fresh or compelling’ (Tas) evidence. Fresh evidence is evidence that is new, meaning it was not presented during the original trial or first appeal, and it must not have been reasonably discoverable at that time. Compelling evidence is evidence that is credible, reliable, and significant enough that it could likely lead to a different verdict if considered in a new trial. A second or subsequent appeal will generally be successful if fresh and/or compelling evidence indicates that a miscarriage of justice has occurred.

In NSW, a judicial inquiry can be initiated under the Crimes (Appeal and Review) Act 2001 (NSW) allowing for the review of a conviction via either a petition to the Govenor, petition to the Attorney General or a direct application to the Supreme Court. This judicial inquiry can involve an open-ended assessment of the evidence which resulted in a conviction. Following an inquiry the matter may be sent to the Court of Appeal to be considered resulting in the conviction being overturned.

The final avenue available to a person wrongfully convicted in Australia is to petition the Govenor in a relevant State or Territory to exercise their Royal prerogative of mercy and grant a pardon. A ‘petition for mercy’ is submitted to the Governor for their consideration, with a pardon being evaluated on a case-by-case basis on its individual merits. A pardon effectively removes the consequences of a conviction but does not overturn the conviction itself. Pardons are rarely granted in Australia and are reserved for the most exceptional cases (such as in the recent case of Katheleen Folbigg).

Limitations of Appeals

Although the appellate process is the primary means for wrongfully conviction persons to clear their name, there are many limitations to current processes.

As the grounds of appeal are limited to discrete errors at trial, a person whose wrongful conviction is based on mistakes or misconduct during police investigations is often limited on appeal.

Further, other than in circumstances of fresh or compelling evidence, a person wrongfully conviction is limited to one appeal which can be quickly exhausted.

If all appeal avenues are exhausted, the only final option available for the wrongfully convicted is to petition for a pardon by the NSW Governor acting on the advice of the Executive Council and the Attorney General.

The power to pardon comes from the Royal prerogative of mercy entrusted in the King’s representative in NSW. A ‘petition’ or application is made directly to the Governor who will consider each application on its individual merits.

The effect of a pardon is to remove a person from the consequences of a conviction, but without displacing the conviction itself. Successful petitions for pardons are rare, and pardons are only granted in the most extraordinary of circumstances.

Click here for section 10 non convictions on appeals.

By Jarryd Bartle and Jimmy Singh.

Published on 03/01/2025