What Can You Do If You’ve Been Wrongfully Convicted in Western Australia?

pair of hands from behind jail cell

Being convicted of a crime you didn’t commit is a devastating experience, particularly when a term of imprisonment is imposed.

Luckily, there are options available in Western Australia for those who have been wrongfully convicted to clear their name.

Here’s what you need to know.

How Common Are Wrongful Convictions?

It can be difficult to determine how prevalent wrongful convictions are in Australia. Using statistics from the United States, it’s estimated that about 1% of people imprisoned are innocent of the crime they have been convicted of.

There have been nearly 100 documented cases of wrongful convictions in Australia since 1922. Some of these cases, including the convictions of Lindy Chamberlain and Andrew Mallard, are well known, others, however, have received little media attention.

In 2020, Western Australian man Scott Austic was finally released from prison after spending 12 years incarcerated for murder, a crime he didn’t commit. After his initial appeal against conviction was dismissed in 2010, Austic was finally vindicated when a 2018 judgement ordered a fresh trial and a jury found him not guilty. Throughout the trial, there were several revelations about the flawed initial investigation, as well as insinuations of police misconduct in relation to evidence. Earlier this year, Austic was awarded a $1.3 million ex-gratia payment over his wrongful incarceration.

Common causes of wrongful convictions in Australia include:

  • Flawed and unprofessional police investigations;
  • A weak circumstantial cases;
  • Corrupt police officers;
  • Junk forensic science; and
  • Incompetent or poorly resourced legal representation.

Whilst limited, there are options available for a person wrongfully convicted to clear their name including various avenues for appeals and the Royal Prerogative of Mercy.


Appeals Against Conviction in the Magistrates Court

If a person has been wrongfully convicted of a crime in the Magistrates Court, they are entitled to seek to leave to appeal this conviction to the Supreme Court of Western Australia.

Section 8 of the Criminal Appeals Act 2004 (WA) outlines the grounds upon which a person can appeal a conviction to the Supreme Court including where the court:

  • made an error of law or fact, or of both law and fact;
  • acted without or in excess of jurisdiction; or
  • there has been a miscarriage of justice.

In order to have an appeal heard in the Supreme Court, the applicant must first seek leave to appeal their conviction. Leave can only be granted where the ground of appeal has a reasonable prospect of success.

Upon hearing the matter, the Supreme Court can do one or more of the following (under section 14 of the Act):

  • dismiss the appeal; 
  • allow the appeal; 
  • set aside or vary the decision of the Magistrates Court and sentence imposed, order made or thing done as a result of the decision; 
  • substitute a decision that should have been made by the Magistrates Court;
  • order a re-hearing in the Magistrates Court;
  • make an order that a person is not guilty on the basis of unsoundness of mind;
  • make an order as to costs of the appeal and any related proceed; and
  • make any other order it thinks fit.

A decision made by the Supreme Court can be further appealed to the Court of Appeal. 


Appeals Against Conviction in the District Court or Supreme Court

If a person has been wrongfully convicted of a crime in the District Court or Supreme Court, they are entitled to seek to leave to appeal this conviction to the Court of Appeal, which sits within the Supreme Court of Western Australia.

As with appeals from the Magistrates Court, leave must be first sought and granted before an appeal is heard in the Court of Appeal.  Leave may only be granted where there is a reasonable prospect of success.

Upon hearing submissions from both parties, section 30 of the Criminal Appeals Act 2004 (WA) states that the Court of Appeal must allow the appeal if in its opinion:

  • the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or 
  • the conviction should be set aside because of a wrong decision on a question of law by the judge; or 
  • there was a miscarriage of justice. 

If an appeal is granted, the Court of Appeal must set aside the conviction of the offence, and may either:

  • order a trial or a new trial; or 
  • enter a judgment of acquittal for the offence; or 
  • enter a judgement of acquittal for one offence but find the appellant guilty of another offence; or
  • make an order that a person is not guilty on the basis of unsoundness of mind; or

Depending on the outcome, the Court of Appeal may re-sentence the appellant taking into account the result of the appeal.


Appeals Against Decisions of the Court of Appeal

In very rare circumstances, a person may seek to appeal a decision made by the Western Australian Court of Appeal to the High Court of Australia.

Special leave to appeal must be sought but is rarely granted. Section 35A of the Judiciary Act 1903 (Cth) outlines that the High Court will have regard to the following considerations in determining whether to grant leave to appeal:

  • whether the proceedings in which the application relates involve a question of law that is either of public importance or a decision is required to resolve differences of opinion between different courts, or within one court, as to the state of the law; and
  • whether the interests of the administration of justice require the matter to be considered by the High Court.

Appeals to the High Court are seldom successful. Less than 2% of applications for special leave to appeal to the High Court are granted.


Second Right of Appeal in Cases of Fresh, New and Compelling Evidence

A second right to appeal a wrongful conviction to the Court of Appeal exists in Western Australia for applicants who can satisfy the court that fresh, new and compelling evidence exists.

Under section 35E of the Criminal Appeals Act 2004 (WA) an offender convicted of an offence may bring a second and subsequent appeal against conviction to the Court of Appeal if:

  • there is fresh and compelling evidence relating to the offence; or 
  • there is new and compelling evidence relating to the offence. 

Section 35D of the Act notes that evidence is ‘fresh’ if:

  • despite the exercise of reasonable diligence, the evidence was not and could not have been tendered at the trial of the offence or any previous appeal; or 
  • the evidence was not tendered at the trial of the offence or any previous appeal but, with the exercise of reasonable diligence, could have been tendered at the trial of the offence or any previous appeal; and the failure to tender the evidence was due to the incompetence or negligence of a lawyer representing the offender. 

It further notes that evidence will be ‘new’ if the evidence was not tendered at the trial of the offence or any previous appeal but, with the exercise of reasonable diligence, could have been tendered at the trial of the offence or any previous appeal. 

Finally, evidence is ‘compelling’ if it is highly probative (‘relevant’) in the context of the issues in dispute at the trial of the offence.


Petition for Mercy

A final option available to a person wrongly convicted of a crime who has exhausted all avenues of appeal is to petition for the exercise of the Royal Prerogative of Mercy.

The Royal prerogative of mercy is a broad discretionary power exercisable by the Governor of Western Australia acting on the advice of the Attorney General. The purpose of the power is to temper the rigidity of the law by dispensing clemency in appropriate circumstances.

An application (or ‘petition’) is made to the Attorney-General to either refer a matter to the Court of Appeal to be re-heard (this is done under section 140 of the Sentencing Act 1995) or to seek a full pardon from the Governor of Western Australia.

The Royal Prerogative of Mercy is exercised only in rare and exceptional circumstances. However, it may be the only option left for a wrongfully convicted person who has exhausted all other avenues for appeal. 


Need Legal Advice?

Andrew Williams is an experienced Criminal Lawyer and Barrister in WA  who can provide you with expert legal advice in the event of a wrongful conviction.

Andrew offers a range of criminal law and traffic law services in PerthFremantle and all across Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.

Call Now: (08) 9278 2575

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.

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