Absence of systematic compensation for wrongful convictions compounds the injustice
Sep 28, 2023
Commentators have sought to predict what level of compensation Kathleen Folbigg will receive for her twenty years of wrongful imprisonment. None have asked a more important question: is it possible to adequately compensate a wrongfully convicted person for all the harms that are now known to ensue from prolonged incarceration?
Neither has there been community discussion about the absence in all Australian jurisdictions (except the ACT) of a legal right to compensation. This absence is yet another aspect of Australia’s criminal justice system that is badly out of step with most other common law countries. In this matter, Australia is also out of step with its obligations as a signatory to the International Covenant on Civil and Political Rights.
The harms caused by prolonged unjust imprisonment are well-documented via research. Most of this research relates to male prisoners. This is important as there is evidence that the experiences of women prisoners are different, with additional factors contributing to the harm that they suffer. This is especially the case where a woman not only has to cope with wrongful conviction for the murder of a child or children but at the same time has to cope with the grief of losing that child or those children.
The two most obvious harms are readily identified and can be assigned a monetary value. These are the years of lost capacity to earn a living and the legal expenses associated with overturning a conviction. All the other harms are existential. They include the long period of incarceration and a range of serious mental health issues including PTSD, depression, anxiety, panic attacks, enduring change in personality and destruction of family relationships. To protect themselves from harm while in prison, some learn to adopt an aggressive and intimidating persona which may be difficult to abandon. Exonerees also carry the stigma of having been convicted; this can prevent their finding work and re-entering society. They frequently encounter disbelief that they are innocent. There is also harm done to the families that they seek to re-join. Even where families have intensely supported the incarcerated individual, complete breakdown of previous relationships is common, as is a life of social isolation.
In contradistinction to the support offered to prisoners when released on parole, wrongfully convicted persons are usually released with little warning and are not provided with any initial or ongoing support. After long periods of incarceration, they can find changes in the outside world that are bewildering. They must be given or at least offered more support.
With regard to Australia’s obligations, Article 14(6) of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory, provides that:
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
Australia (the ACT excepted) is included in a very short list of nations that have declined to pass laws consistent with the Covenant. Instead our government has claimed that ‘the provision of compensation for miscarriage of justice in the circumstances contemplated in paragraph 6 of article 14 may be by administrative procedures rather than pursuant to specific legal provisions’.
By ‘administrative procedures’ our governments are referring to the present system of ex-gratia (act of grace) payments, described by one commentator as lacking in transparency and being somewhat arbitrary. Such payments are under the control of the government of the day and dealt with usually by the attorney-general of each jurisdiction. There are no published guidelines for such decisions and there is no process of review if compensation is denied. This approach, which has been repeatedly criticised by the United Nations Human Rights Council, is basically saying leave Australia alone, ex-gratia payments decided upon by the considerations of elected politicians are just fine. In our resistance to adequately addressing human rights issues, perhaps Australia’s ‘tyranny of distance’ has become a shield, allowing us to imagine that we are safe from international scrutiny and criticism.
While some high profile examples of wrongful convictions have been financially compensated in this way, these instances are very much the minority. It is open to those denied ex-gratia payments to seek compensation through the civil courts on grounds such as false imprisonment, or negligence, or malicious prosecution. However such civil suits have been declared to be ‘notoriously difficult’. In addition few exonerees have the resources to fund such legal actions which have unpredictable outcomes.
As in other documented aspects, Australia’s criminal justice system is out of step with our common law cousins. The United Kingdom directly incorporated article 14(6) of ICCPR into its legislative scheme under the Criminal Justice Act 1988 (UK). This provides for a right of compensation to a wrongfully convicted person, the amount of compensation being determined by an independent assessor. Payments follow the principles used in assessing other damages in the civil courts.
New Zealand has taken a somewhat different approach. While there is no legal right to compensation and payments remain ex-gratia, there exists a formal scale of $NZ 150,000 for each year in custody as well as compensation for loss of livelihood and up to $NZ 250,000 to assist in re-entering society. In addition decisions are taken out of the hands of the Minister of Justice and are based on advice from an independent senior counsel.
So what should be done in Australia? It is surely proper that all jurisdictions should follow the ACT which under Section 23 of its Human Rights Act 2004 provides an enforceable right to be compensated if:
(a) anyone is convicted by a final decision of a criminal offence; and
(b) the person suffers punishment because of the conviction; and
(c) the conviction is reversed, or he or she is pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice.
This legislation was relied upon by David Eastman. In 1995, he was wrongfully convicted of the murder of an assistant police commissioner Colin Winchester and spent 19 years in prison. When his conviction was overturned in 2018, the ACT Government initially offered him an ex-gratia payment of $3 million. He rejected this and took action under the Human Rights Act resulting in compensation of $7.02 million.
For several years legal commentators have been urging reform to bring certainty and transparency to our arbitrary and opaque system of compensation. Perhaps in addition to the creation of a criminal cases review commission, the legacy of Kathleen Folbigg’s unacceptable experience will also be a legislated system for properly compensating those innocent people who have been unjustly incarcerated. With these two steps, Australia may be a little closer to a world class criminal justice system.
Kerry Breen AO is a retired physician and past President of the Medical Practitioners Board of Victoria and of the Australian Medical Council. He has had a long-term interest in the health and well-being of doctors as reflected in his recent book A Perilous Profession: The Dangerous Lives of Doctors, Australian Scholarly Publishing, 2023.
Stephen Cordner AM is emeritus professor of forensic medicine at Monash University and was the founding director of the Victorian Institute of Forensic Medicine. He is co-author with Kerry Breen of Good Medical Practice: Professionalism, Ethics and Law (4th ed., 2016), and Wrongful Convictions in Australia: Addressing issues in the criminal justice system (Australian Scholarly Publishing, 2023).
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