Abstract
In their article, ‘The problem of post-conviction review in Australia’, Michele Ruyters and Jarryd Bartle consider the debate over the adequacy of Australia’s post-conviction review systems in the wake of Kathleen Folbigg’s homicide acquittals. They discuss the problems with appeal and review systems, consider examples from other jurisdictions, and propose reforms.
Part One
Purpose: To consider the problem of wrongful convictions despite rigorous criminal trial processes.
Instructions:
1. Divide into groups of three or four and assign one of the following Australian or international case studies to each group: Kathleen Folbigg; Lindy Chamberlain; the Mickelberg Brothers; John Button; Darryl Beamish; Rubin Carter; the Birmingham Six; Andrew Mallard; Kelvin Condren. 2. Conduct some research about each of these cases and write a brief summary, focussing on the crime, the time between conviction and exoneration, and the reasons for the eventual exoneration. Share your findings with the class. 3. Refer to the websites https://innocenceproject.org/the-issues/ or https://classic.austlii.edu.au/au/journals/FlinLawJl/2015/6.pdf (pp 181–94) and explore the common issues that contribute to wrongful convictions. To what extent are these found in the case studies you have researched? Discuss with the class.
Part Two
Purpose: To understand how aspects of the appeal/review process make it difficult to overturn convictions in Australia.
Instructions: Referring to the article, define the following terms and explain how they limit criminal appeals in Australia: • the proviso; • new evidence; • fresh evidence; • compelling evidence; • forensic decision-making; • inadequate legal aid; • retention of evidence; and • desk assessments.
Part Three
Purpose: To consider proposed reforms to improve the redress of wrongful convictions.
Instructions: Read the conclusion of the article and then, referring to your research in Parts One and Two above, consider the following proposals: • increasing legal aid funding • expanding the definition of fresh evidence • removing the requirement for fresh evidence • allowing more appeals based on new evidence • random, independent audits of disclosure of evidence.
As a class, discuss whether each of these reforms should be adopted and, if so, in what order of priority.