7 November 2014

Comparative Reflections on
Miscarriages of Justice in Australia
and Canada
Kent Roach
[email protected]
Why comparative law and politics of
• Potential next wave of wrongful convictions
• Criticisms of traditional focus on case studies
and broad causes (Leo and Gould, 2009)
• But not social sciences: more fine grained
examination of law and politics including the
debate over factual innocence (Naughton,
Comparative Approaches
Goudge Commission Research studies, 2008
Roberts and Weathered, 2009
Sangha, Roach and Moles, 2010
Special Issues CLQ and Cincinnati Law Review
from 2011 Innocence Project conference
• Roach, 2013 on Canada-US
• Other examples?
Approaches to Comparative Law and
• Tushnet, 2008
• Functional similarities such as causes
• Though Colvin, 2009 warnings of dangers of
universalizing the American experience and
applying it to Australia: see also Findlay, 2003
review of NSW DNA
• Expressive differences in legal systems
Why compare Australia and Canada?
Hirshl, 2014 most similar case principle
Two countries many similarities
Interesting constitutional differences
Australia and state jurisdiction over criminal
• Canada and its Charter or constitutional bill of
• Also different role of juries
Other Comparisons?
• Hirshl, 2014 warns against “World Series”
approach that only focuses on a few common
law jurisdictions
• France, Italy and approaches to finality and
trial de novo
• China’s recent recognition of wcs
• Countries where wcs not (yet) recognized such
as South Africa, Singapore, India….
Legal and Political Acceptance of
Reality of Wrongful Convictions
• Resistance to idea that there has been
wrongful convictions
• In Canada Marshall, 1983 blame Marshall and
Milgaard, 92 until 97 DNA also maintain
presumption of guilt after conviction quashed
• Similar to Mallard, 2003 WA and 2005 HC who
is even detained after conviction quashed
• Why has Australia apparently forgotten its
early experience with Splatt and Chamberlain?
Possible Explanations?
• In Canada, public inquiries such as Marshall,
Morin and Sophonow make it difficult to deny
• FPT, 2004 senior prosecutors prepare 155
page report based on these 3 inquiries
Possible Explanations?
• In Canada, some early cases including Morin,
Milgaard, Simon Marshall in Quebec, Driskell
and Unger in Manitoba, Parsons and Druken in
Nfld use DNA to exonerate
• Australia’s experience more limited- Frank
Button, Queensland
• NSW DNA experiences
• Jama and Fitzgerald
Different Approaches Causes
• Australia and role of legislative regulation of
police interviews with suspects
• In Canada judges try to encourage taping of
interviews but no federal legislation
• Instead case by case judicial regulation under
the Charter
False Confessions
• SCC recognizes as cause of wc in Oickle, 2000
• Advanced recognition of literature but
reluctance to exclude statement in that case
• Levinson, 2007 remedial deterrence thesis
• Singh, 2007 and Sinclair, 2010 allow prolonged
and potentially unrecorded interviews with
suspects over assertion of right to silence and
without a lawyer being present
Mr. Big
• Hart, 2014 recognize that Mr. Big stings can
cause wcs and new common law
presumptions that they are inadmissible
• Excludes statements from Hart and
prosecution dropped
• A few months later in Mack, 2014, the SCC
admits statements in large part because of
confirmatory evidence ignoring the lessons of
Garrett, 2009 cited in Hart, 2014
Jailhouse Informers
• Morin, Sophonow and Lamer inquiries issue
strong warnings against their unreliability and
last two recommend also complete ban
• SCC in Brooks, 2000 stress the need for
warnings and not exclusion
• Affirmed in Hurley, 2010
• Baltrusaitis v Ontario (Attorney General), 2011
ONSC 532 no Charter right against
Identification Procedures
• National standards and expert witnesses
proposed by Cory in Sophonow report
• Rejected and others including Colvin and
Stuesser stress warnings sufficient
• Hill, 2007 allows police to be sued for a
negligent line up where the Aboriginal suspect
is the only person
• But no liability because no national standards
What difference has the Canadian
Charter made?
• Stinchcombe, 1991 on disclosure and Burns
and Rafay, 2001 on extradition to death
• Major victories
• But many other cases demonstrate limits of
case-by-case regulation Bradley, 1993 and the
complex balance of due process and crime
What Difference does the Charter
• Reject Charter right to retain material for
testing in a Dr. Smith case in Chaudhary v.
Ontario (Attorney General), 2012 ONSC 5023
• Pan, 2003 and not inside jury box
• Mianzga, 2006, Kreiger, 2002 and Anderson,
2014 deference to prosecutorial decisionmaking
• GDB, 2000 adopted deferential US Strickland
standard on ineffective assistance of counsel
United States experience
• Illustrates how what is left of Warren Court
due process does not prevent the DNA and
other exonerations
• Findlay, 2009 call for a reliability model
• Uneasy relationship between some aspects of
innocence movement and due process
Naughton, 2010
• Fragile political alliances in innocence projects
What Difference will International law
make in Australia?
• Role in SA reforms, 2013 and intervention by
Australia HRC
• But also decline to examine the Moles and
Sangha complaint against appeal and petition
system and weight given to finality
• International standards important given no
constitutional bill of rights but perhaps greater
margin of appreciation than in domestic dp
Federal Difference in Australia
• Allows more room in Canada for experimentation
• s.79 of the Crimes (Appeal and Review) Act 2001
NSW allows for judicially initially inquiries
• Hamer, 2014 criticizes use only in police
corruption but potential in NSW and ACT
(Eastman) and sound constitutional principle of
making the judiciary responsible even if not
• Hamer, 2014 40 applications 2008-2012
Federal Difference in Australia
• SA debates and ultimately rejects CCRC but
adopts second appeals on “fresh and compelling
• Test of whether courts in SA and perhaps
eventually High Court will take restrictive and
formalistic or substantive approach to s.353A
and whether forensic science review comes back
on the table
• Sangha, Moles and Economides, 2014
• Tasmania next state to consider
Law and Politics of SA reforms
• Resistance of Victims Commissioner to CCRC and
Legislative Review Committee responds by
matching double jeopardy limits for second
prosecutions with similar “fresh and compelling”
hurdles for second appeals
• Innocence claims a form of victims’ rights
• But also as in NSW also conflict with rights of
crime victims
• Factor in US but not as strong in early recognition
of wcs in Canada
• Fed Parl rejects CCRC and SCC rejects lurking
• Canada 2002 reforms to petition to attempt to
regularize political process
• Some successful judicial review of refusal to grant
petition: Ross v. Canada (Justice), 2014 FC 338
• Martens v. Commonwealth (2009) 174 FCR 114
67 as alternative to Von Enimen “black hole” of
no judicial review
Avoidance of Petitions
• End runs in Canada around petition, Sherrat
Robinson, 2009 and White, 2010 with appeals
to SCC
• Irving v. The Queen [1997] HCA Trans 404 and
fudging of Mickelberg no fresh evidence as
outlined in Sangha and Moles, 2012
• bail pending petition cases such as Unger
2005 MBQB 238, Phillion, Driskell and why bail
pending appeals not used more in Australia
Indigenous People and other
Disadvantaged Groups
• In Canada only the Marshall commission
• But Neepose, Mullins-Johnson, Hill and Brant
• In Australia, Angel, Condren, Kina, Narkle
(Dioso-Villa, 2012 in Albany LR)
• Jama in Australia, Morin in Canada
• Relate wc to a broader justice agenda not
limited to those who can prove factual
• Paradox
• Greater acceptance of reality of wcs in Canada
perhaps because of commissions and dna
• Australia starting to engage in more legislative
reform of post conviction issues but continued
legal and political struggles

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