Does Australia have a problem with wrongful convictions? It’s time we got serious about finding out

When we talk about wrongful convictions in Australia – by which we mean convictions identified as wrong only after all appeal rights have been exhausted – the first question we are asked is: do we really have a problem? The second is, how would we know? Unfortunately, the answer to both is: we do not know because nobody counts.

So, actually getting to the answer requires a couple of stops along the way.

The United States Innocence Project claims there are “staggering” numbers of wrongly convicted prisoners in American jails.

Since the early 1990s, more than 600 people in the US have been exonerated on the basis of DNA testing of retained biological evidence – this means testing that should have revealed the DNA profile of the convicted person if they had committed the offence, but did not.

These people spent on average 13.5 years in jail.

Retrospective analyses of these exonerations revealed the various failures leading to the wrong convictions.

They include: false confessions inaccurate eyewitness evidence invalid or misleading forensic evidence inaccurate or deceptive informant evidence prosecutorial and/or police misconduct inadequate defence representation biases associated with the race or ethnicity of the accused.

There is no reason to suppose these failures are limited only to those cases where biological material is retained.

They pervade the system.

The claim of staggering numbers of wrongly convicted people in the American prison system is entirely plausible.

We draw no conclusion about the scale of the problem in Australia based on this – after all, there are major differences between our criminal justice systems and our cultures.

But we can no longer be complacent about the possible existence of a problem.

Unless we actively inquire, it will remain hidden.

The UK experience In the United Kingdom, the Criminal Cases Review Commission (CCRC) was established in 1997 to deal with this issue.