Chapter 2 – International Review


I. Introduction

The disturbing truth is that wrongful convictions are an international phenomenon. The 2005 Report included a summary of a review of the international studies and inquiries on wrongful convictions by Bruce A. MacFarlane, Q.C., a former deputy Attorney General of Manitoba and currently a law professor at the University of Manitoba.Footnote 12 The Report noted that some problems, themes and mistakes arise repeatedly in these wrongful conviction cases, regardless of where the miscarriage of justice occurred. These errors relate to the conduct of police, Crowns, defence lawyers, judges and forensic scientists, and they are not confined to proceedings in the courtroom. Following his review of international studies in the United States, Britain, Australia and New Zealand during the past century, MacFarlane concluded that “chilling and disconcerting” patterns and trendsFootnote 13 as well as scientific developments, such as DNA, have forced Anglo-based criminal justice systems to “grapple with the stark reality… that wrongful convictions have occurred on a significant scale.”Footnote 14

II. International Developments Since 2005

Since the 2005 Report, there have been numerous initiatives, reports, inquiries and legislative reforms at the international level related to the prevention of wrongful convictions. The United States has emerged as the leader in this field, and has become the international centre of knowledge and expertise,Footnote 15 largely through its New York-based Innocence Project. The following discussion is not meant to be exhaustive but rather to provide a window into the array of international initiatives and cases related to wrongful convictions since the publication of the 2005 Report.

A. United States

The Innocence Project is a national litigation and public policy organization founded in 1992 and associated with the Benjamin N. Cardozo School of Law of Yeshiva University in New York City. It assists prisoners who can be proven innocent through DNA testing but also works to reform the criminal justice system to prevent wrongful convictions.Footnote 16 By May 2011, the Project was reporting 271 post-conviction DNA exonerations in the United States; about 70 per cent of those exonerated were people of color. The Project has identified eyewitness misidentification as the single greatest cause of wrongful convictions nationwide, indicating that it plays a role in more than 75 per cent of the convictions overturned through DNA testing. Unverified or improper forensic science contributed to the wrongful conviction in more than 50 per cent of DNA exonerations. In about 25 per cent of DNA exonerations, innocent defendants made incriminating statements, falsely confessed or pleaded guilty, and in more than 15 per cent of wrongful convictions that were overturned by DNA testing, an informant or jailhouse snitch testified against the defendant, the project reports.Footnote 17

The Innocence Project is a wealth of information, studies, researchFootnote 18 and statistics concerning the causes of wrongful convictions, ongoing cases and exonerations, as well as initiatives across the United States designed to reduce and overturn wrongful convictions. For example, its web site contains information concerning legislative initiatives both nationally and at the state level aimed at reducing wrongful convictions. The Project has developed model legislation in various areas that it makes available online for review by jurisdictions that are considering legislative reforms to help prevent wrongful convictions, such as changes aimed at preventing eyewitness misidentification and false confessions.

Different levels of government have introduced significant legislative reforms designed to reduce wrongful convictions since the publication of the 2005 Report. For example, in February 2011, Virginia Senator Jim Webb introduced the National Criminal Justice Commission Act of 2011. Among other things, it would create a national commission composed of experts from across the criminal justice system to examine all aspects of the criminal justice system in the United States.Footnote 19 Innocence Project representatives have expressed hope that the commission will examine the causes of wrongful convictions and recommend improvements to help prevent them.

A dozen states, including New York, Texas, Florida, California, and Virginia, have also created commissions, sometimes referred to as innocence commissions, to examine cases of wrongful convictions and to recommend reforms as a result of them. While the state commissions vary in structure and mandate, they all serve as vehicles to enable states to review cases of wrongful convictions, identify the causes and recommend reforms to prevent future cases.Footnote 20

The Innocence Commission for Virginia, for example, has done a comprehensive study aimed at reducing the risk of wrongful convictions in that state. In March 2005, it released a major study entitled “A Vision for Justice: Report and Recommendations Regarding Wrongful Convictions in the Commonwealth of Virginia.”Footnote 21 More recently, in 2008, the New York State Bar Association established a Task Force on Wrongful Convictions, bringing together jurists, prosecutors, defence lawyers, members of law enforcement, government groups, other criminal justice practitioners and academics, to examine wrongful conviction cases from across the state and to make recommendations. The Bar Association’s Final Report was issued in April 2009, outlining a course of action for the State of New York to prevent future wrongful convictions.Footnote 22 In June 2010, the Louisiana Legislature directed its State Law Institute to study and make recommendations regarding changes to the law and to explore other issues relating to the finality and accuracy of criminal convictions. The Institute is to report its findings and recommendations to the legislature by January 2013.

North Carolina was the first state to create a commission to investigate claims of actual innocence by convicted persons. The North Carolina Innocence Inquiry Commission investigates cases where new evidence of complete factual innocence has emerged since conviction. The eight-member commission was created in 2006 and began operating in 2007. It has reviewed hundreds of innocence claims and conducted multiple hearings. On February 17, 2010, Gregory Taylor was the first person to be exonerated by this unique process. Mr. Taylor was declared innocent by a panel of three judges after serving 17 years for a murder that he did not commit. The Commission is separate from the appeals process. A person exonerated by the Commission process is declared innocent and cannot be retried for the same crime. Most claims are initiated by the convicted person, but many come from a friend or a family member of the convicted person. Claims may be initiated by a witness, victim, law enforcement officer, defense attorney, or anyone that has new information about evidence of innocence.Footnote 23

Other major initiatives are under way in various states throughout the United States. For example, in June 2010, a special master appointed by New Jersey’s top court called for a major overhaul of the legal standards for the acceptance of eyewitness testimony in court. The opinion of retired judge Geoffrey Gaulkin was released publicly in a 64-page report on June 21, 2010, following an unusual hearing on eyewitness identification science and law. Among its findings, the report concluded that the test used by 48 states and the federal courts to determine the reliability of eyewitness testimony is flawed and inadequate, and should be replaced.Footnote 24 Barry Scheck, co-director of The Innocence Project, characterized the report as the “most extensive record to date on the scientific and legal standards that should be applied to eyewitness evidence.”Footnote 25 The report findings could serve as a blueprint for other states that wish to revamp witness identification protocols and the rules regarding the use of such evidence in court. The report was precipitated by the 2004 conviction of Larry Henderson, who was sentenced to 11 years in prison for reckless manslaughter and weapons possession relating to a fatal shooting in January 2003. Henderson challenged the photo line-up procedure used in his case because the police had failed to follow state guidelines for conducting such procedures. The appeal court agreed and ordered a new hearing based on the admissibility of the photographic identification of Henderson. Prior to that hearing, the state appealed and the New Jersey Supreme Court ordered a full-scale inquiry into witness identification procedures used by the police.Footnote 26

In the area of forensic science, the National Academy of Sciences released a comprehensive report in February 2009, called Strengthening Forensic Science in the United States: A Path Forward.Footnote 27 The report advocated significantly strengthened oversight, research and support so that forensic science can be more reliable in identifying perpetrators of crime, protecting the wrongly accused and ensuring public safety. The Academy also recommended the creation of an independent, science-based federal entity that would direct comprehensive research and evaluation in the forensic sciences, establish scientifically validated standards and oversee their national application. The report was released by a group of scientific and legal experts after two years of study and public hearings.

Finally, in September 2010, the U.S. Department of Justice’s National Institute of Justice conducted a two-day workshop to examine alternative international practices to prevent and correct wrongful convictions. The purpose of the workshop was to hear how other countries, as well as states and counties in the U.S., are handling wrongful convictions and to determine possible best practices that could be adapted for the U.S. system to prevent and correct wrongful convictions. The multidisciplinary expert working group brought together U.S. and international researchers, academics, advocates, law enforcement and legal practitioners. The workshop addressed the needs for research, research gaps and new potential research areas in the field of wrongful convictions in light of international best practices.Footnote 28

B. Britain

While Britain has several Innocence Projects, these organizations are less established than the Innocence Project in the United States. Thus, the Criminal Cases Review Commission remains the focal point in Britain for cases involving potential miscarriages of justice. It is the independent public body established in 1997 to investigate possible miscarriages of justice in England, Wales and Northern Ireland. In fact, the CCRC was the first statutory body in the world created to examine possible wrongful convictions and to refer cases to the appeal court where necessary.Footnote 29 The Commission determines whether convictions or sentences should be referred to a court of appeal. The Commission referred 31 cases to various courts, but most to the Court of Appeal for England and Wales, during 2009/2010, received 932 applications, and had 406 cases under review at the close of the year. Of the 30 cases heard by the appeal courts involving 29 individuals, 17 resulted in quashed convictions and six others in sentence variance.Footnote 30 In total, including the 31 referrals in 2009/2010, the Commission has referred 454 cases out of the 11, 871 cases closed between 1997 and March 31, 2010. That is an overall referral rate of 3.8 per cent.Footnote 31

One of the most recently publicized cases of wrongful conviction in Britain is that of Warren Blackwell. Mr. Blackwell spent more than three years in prison for a sexual assault he did not commit before the Commission’s investigation and referral led to the quashing of his conviction by the Court of Appeal in 2006.Footnote 32 New evidence regarding the reliability of the complainant, her propensity to make false allegations, and whether in fact she was assaulted at all, were issues on appeal.Footnote 33 As the CCRC notes in its 2009/2010 annual report, the Independent Police Complaints Commission subsequently conducted an inquiry into the matter and was critical of the original police investigation and the handling of the prosecution.Footnote 34 The report cites, among other shortcomings of the police, its failure to disclose information of subsequent false allegations by the complainant.Footnote 35 Mr. Blackwell consistently denied his guilt; he twice sought leave to appeal his conviction and sentence but was refused.Footnote 36

The case of Sean Hodgson is another British case that has been the subject of attention in recent years. The CCRC referred his case to the Court of Appeal in March 2009. As the CCRC reported in its 2008/2009 annual report, he was freed from prison after serving 27 years for the 1981 murder of Teresa De Simone after DNA tests exonerated him. In another recent case, Barry George spent seven years in prison before being acquitted in July 2008 following his re-trial for the murder of prominent broadcaster Jill Dando. The Court of Appeal had quashed the original conviction following a referral by the Commission.Footnote 37 The Commission had referred the case to the Court of Appeal on the grounds that new evidence called into question the firearms discharge evidence at trial and the significance of that evidence.

Despite these referrals, there has been a growing chorus of criticism of the Commission. For example, Michael Naughton, director of the Innocence Network UK and a senior law lecturer at Bristol University, has published a collection of essays on the Commission, in which he concludes that the CCRC “is not the solution to the wrongful conviction of the innocent.”Footnote 38 The Commission, which has about 100 employees, has also seen its budget cut in recent years.

Among other significant developments, Britain has taken steps to strengthen the quality of its forensic science services to the criminal justice system through the establishment in 2007 of a Forensic Science Regulator within the Home Office. The goal of this body is to establish and enforce quality standards for forensic science used in the investigation and prosecution of crime. The Regulator is advised and supported by the Forensic Science Advisory Council, which is a multi-disciplinary group including professionals within the forensic science community and other criminal justice professionals, such as judges, prosecutors, defence counsel and the police.Footnote 39

However, in December 2010, the Home Office announced that it would shut by March 2012 the Forensic Science Service (FSS), which provides forensic science services to the police forces and government agencies of England and Wales but which it said had been losing 2 million pounds a month. Ministers said they hoped that large parts of the operation could be sold off to the private sector before the government-owned company is wound up. Thirty-three leading forensic scientists, including Professor Sir Alec Jeffreys, who pioneered DNA fingerprinting, signed a public letter condemning the move.Footnote 40

C. Australia

In Australia, a number of significant public inquiries have been released since 2005 concerning wrongful conviction cases, and another review is under way.

1. Farah Abdulkadir Jama

Farah Abdulkadir Jama received more than $500,000 (Australian dollars) in compensation from the Victorian state government in 2010 for his wrongful rape conviction and incarceration based on contaminated DNA evidence. In May 2010, Victoria released the report of former Justice F.H.R. (Frank) Vincent into Mr. Jama’s 2008 wrongful conviction and imprisonment. A young Somali man, he spent 15 months in prison before his conviction was set aside and an acquittal entered by the Court of Appeal.Footnote 41 Mr. Jama had been convicted on the basis of a single piece of DNA evidence, which scientists attributed to him, based on an exceptionally high level of mathematical probability.Footnote 42 The verdict against Mr. Jama was set aside after it came to light that the swab and slide were collected in the same unit and by the same doctor as forensic samples taken from another woman, who had had sexual contact with Mr. Jama. Vincent concluded that the sample taken from the alleged rape victim may have been contaminated.Footnote 43 “ I have concluded that the possibility that there was a transference of a microscopic amount of material containing the DNA of Mr. Jama from B. (the first woman) to a swab and slide obtained in the examination of M. (the second woman) as a consequence of the presence and examination of the two women in an environment where that might easily have occurred is quite high.”Footnote 44

2. Mallard Inquiry

Andrew Mallard received $3.25 million (Australian dollars) from the West Australian government in 2009 in compensation for his 1995 wrongful conviction for the murder of Pamela Lawrence, who died of extensive head wounds after being bludgeoned to death in her jewelry shop. Mr. Mallard, who was homeless at the time of the murder and a petty thief, was in the area at the time, and had no alibi. No forensic link was ever established between him and the crime scene but Mr. Mallard, who suffered from mental illness, made various inculpatory statements to police and eventually admitted to police that he had hit Mrs. Lawrence with a wrench. He later said he had not murdered Mrs. Lawrence. He was charged with her murder following a two-month police investigation, convicted after a jury trial and sentenced to life in prison. Mr. Mallard unsuccessfully appealed to the Court of Criminal Appeal of Western Australia. He petitioned for clemency after serving eight years but the Court of Criminal Appeal dismissed the appeal.

Mr. Mallard had served 12 years of his life sentence before the Australian High Court quashed his conviction in 2005 and ordered a new trial.Footnote 45 There were various issues in the appeal, including the unreliability of his admissions during three police interviews, only one of which was recorded. The lack of disclosure of relevant information was also a significant issue.Footnote 46 Following the court ruling, the Crown did not proceed with a new trial due to changes to the law regarding the admissibility of interviews that had not been video-recorded.Footnote 47 Mr. Mallard was released from prison in 2006.

A subsequent review by the police exonerated him and pointed to another killer, Simon Rochford. Mr. Rochford was serving a sentence for the murder of his girlfriend at the time. He was found dead in his cell the morning after he was named in the media as a new suspect in the Lawrence case. A coroner’s inquest later determined he had committed suicide.

The West Australian Corruption and Crime Commission subsequently launched an inquiry into the investigation and prosecution of Mr. Mallard and released its report in 2008.Footnote 48 The inquiry made findings of misconduct against two police officers involved with the murder investigation, as well as findings of misconduct against the Deputy Director of Public Prosecutions who had prosecuted Mr. Mallard at his 1995 trial. The findings against the Ibid. police officers included causing witnesses to alter their statements and reports, and failing to disclose prior statements and the results of forensic tests to the Crown. The Commission also found that the Crown had engaged in misconduct by failing to disclose to the defence the results of forensic tests related to the possible murder weapon and by also conducting the trial on the basis that the murder weapon was a wrench as drawn by the accused, when in fact the Crown knew that the pattern of some of the injuries was not consistent with the murder weapon being a wrench.Footnote 49

3. Leanne Holland

In May 2010, the Queensland Police launched an inquiry into the September 1991 murder of 12-year-old schoolgirl Leanne Holland. It is described as a comprehensive review of the case, involving four senior police officers.Footnote 50 Graham Stafford, who was the boyfriend of Holland’s older sister at the time, was convicted of the murder by a jury in 1992, on the basis of circumstantial evidence, and sentenced to life. He maintained his innocence. Mr. Stafford twice appealed to the Queensland Court of Appeal but both appeals were dismissed.

Two applications for special leave to the High Court of Australia also failed. Mr. Stafford was released on parole in 2006.

In April 2008, in an unusual second request for a pardon, the Queensland Attorney General referred the case to the Court of Appeal. The Court of Appeal quashed Mr. Stafford’s conviction in December 2009, ordering a new trial. The concerns of the Court focused on a finding that Mr. Stafford had not received a fair trial because the jury was misled in a material way regarding the case that could fairly be made out by the Crown.Footnote 51 In March 2010, the Crown decided not to re-try Mr. Stafford, who had served his sentence in any event. Key circumstantial evidence had been called into question over the years, largely through the work of a criminologist and a former police officer and private investigator, who wrote a book about the case.Footnote 52 The defence team also challenged the reliability of forensic evidence used to estimate the time of death. The case generated a lot of media interest over the years.Footnote 53

4. Roseanne Catt

Roseanne Catt is seeking compensation from the New South Wales Government for her 1991 Conviction. She served 10 years in prison after being convicted of malicious wounding, administering poison to endanger life and conspiracy to commit the murder of her ex-husband. The case was re-opened at the request of the Attorney General after fresh evidence came to light. An investigation revealed that Ms. Catt’s ex-husband and the police officer in charge of the case were close friends. There was evidence to suggest she had been framed. A witness came forward and confessed to giving false evidence against Ms. Catt because of threats from the investigating police. In 2005, the New South Wales Court of Criminal Appeal quashed six of the convictions against her, including the convictions for soliciting the murder of her ex-husband and endangering his life by attempting to administer a noxious substance. The Court ordered Ms. Catt to be re-tried on five of the convictions, including those of soliciting his murder, but acquitted her of the charge of possessing a pistol without a licence for which she had already served her sentence.Footnote 54 In the judgment, McClellan AJA considered fresh evidence and held that, inter alia, there was evidence regarding unreliable civilian witnesses. Justice McClellan also found that there was evidence regarding the propensity of an investigating police officer to secure the conviction of Ms. Catt by means that might include the manufacture or arranging for the giving of evidence known to be false, and fresh evidence implicating the police officer in the creation of evidence by planting a revolver.

Justice McClellan held that it was up to the DPP to decide if a new trial should take place. The Crown did not re-try Ms. Catt. Ms. Catt had almost fully served her prison sentence and was about four months away from her release on parole.Footnote 55 Ms. Catt has always maintained she was the victim of a conspiracy and has written a book entitled Ten Years, which documents her story.Footnote 56

D. New Zealand

New Zealand has also documented cases of wrongful convictions,Footnote 57 and has established an Innocence Project,Footnote 58 similar to those in other countries. The Project investigates possible cases of wrongful convictions in New Zealand and is also a member of the Innocence Network.Footnote 59

In addition, in 2006, Sir Thomas Thorp, a retired New Zealand High Court judge, completed a two-year-study called Miscarriages of Justice, concerning the nature and incidence of miscarriages of justice in that country.Footnote 60 His research included a review of 53 applications to the Justice Ministry claiming miscarriages of justice from 1995 to 2002. Sir Thorp concluded that 26 per cent of them raised issues that required investigation.Footnote 61

One of the most recently-publicized wrongful conviction cases in New Zealand was the 2005 rape conviction of 33-year-old Aaron Farmer, who was awarded $351,575 (New Zealand dollars) in compensation in 2011.Footnote 62 Mr. Farmer spent more than two years in prison before the Court of Appeal quashed his conviction in 2007 and ordered a new trial. The Court found that the Crown’s case rested almost entirely on the accuracy of the complainant’s identification of her attacker, and that Mr. Farmer’s trial lawyer had failed to contact and call a potential alibi witness.Footnote 63 During the trial, the complainant, who had picked Mr. Farmer as the assailant after being shown a photo montage of eight photographs, testified during her evidence-in-chief that she was 90 per cent sure he was the assailant.Footnote 64 Mr. Farmer was discharged in April 2008 before the second trial after DNA testing, which was not available at the time of the original trial, confirmed that he was not the perpetrator. The complainant was also unwilling to give evidence at a re-trial. The Crown chose not to proceed with a new trial.Footnote 65

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