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MISCARRIAGES OF JUSTICE

"a failure of a court or judicial system to attain the ends of justice, especially one which results in the conviction of an innocent person".

Miscarriages of justice occur all throughout Australia.  They just aren't publicized.  When a person is locked up, society simply goes on about their day forgetting about these people. 

What if some of these people aren't supposed to be in jail?

In Australia our judicial system operates 'adversarial' in comparison to America which operates 'inquisitorial'.

An adversarial system is that where the court act as a referee between the prosecution and the defense. The whole process is a contest between two parties. ... An inquisitorial system is a legal system where the court is actively involved in proof of facts by taking investigating of the case.

As an adversarial system it is therefore up-to the two parties to ensure that they undertake due diligence of the case and the facts before reaching the trial.  However herein lies the issue.  The Australian system relies on the Police to investigate the crime and compile the hand up brief to deliver to the prosecutor in readiness to prosecute for a conviction.  

The defence team receives a copy of this brief and can upon asking the court permission invite independent expert witnesses to independently review the police evidence.  This whole process is governed by policy rules and procedures such as practice notes, police policy rules and law. 

Yet whilst this seems simple enough to follow there are some very large 'loop holes' being exploited in this process and others that when occur together ultimately result in always in a conviction and hence a miscarriage of justice.

THE ELEMENTS OF MISCARRIAGE

The 3 elements that contribute to a miscarriage of justice are;

  • Negligent and biased investigation

  • Incompetence of counsel

  • No checking system in place for experts

If you have all three elements in play it is a guaranteed conviction and a miscarriage of justice.  There is a fourth element also which underlies all three and that is a'defendants lack of knowledge'.  The 3 elements only occur as the accused or defendant has little or no knowledge of the adversarial system and how it works.  

Most criminal justice systems have some means to overturn or quash a wrongful conviction, but this is often difficult to achieve. In some instances a wrongful conviction is not overturned for several decades, or until after the innocent person has been released from custody, or has died.

In determining whether there is a substantial miscarriage of justice, the question is not whether the error may have had an effect on the jury. Instead, the court must consider the situation in the trial which would have existed if the error had not occurred.

Click on any of the below links to view current Miscarriage of Justice Cases occurring.

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