Miscarriages Of Justice

Background information
There is currently no regulated way by which persons in NSW - wrongly convicted but then exonerated - can obtain compensation. Where compensation has been paid it has been by way of ex gratia payment from the government, with very uneven results. The difficult alternative is to pursue a common law claim, and prove a case against the state. This is even rarer than ex gratia payments. Access by victims of miscarriages of justice to the Victims Compensation Tribunal appears to have not yet been tested.

There is currently no regulated way by which persons in NSW - wrongly convicted but then exonerated - can obtain compensation. Where compensation has been paid it has been by way of ex gratia payment from the government, with very uneven results. The difficult alternative is to pursue a common law claim, and prove a case against the state. This is even rarer than ex gratia payments. Access by victims of miscarriages of justice to the Victims Compensation Tribunal appears to have not yet been tested.

This matter is addressed by international human rights law. The most powerful human rights instrument, the International Covenant on Civil and Political Rights (to which Australia is a signatory) requires that states compensate the victims of wrongful convictions. On compensation for the victims of miscarriages of justice the ICCPR says:

Article 9 (5) Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation ... & Article 14 (6) When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

It could be argued that Article 9(5) of the ICCPR is met by the existing common law, in that pursuit of a civil wrong by the state is at least possible. Some of the sense of Article 14(6) is incorporated into considerations of ex gratia payments, that is, payment is often made when a person is exonerated after all the normal processes (usually including a High Court appeal) have failed. Such exoneration usually happens by way of a Royal Commission or, in the peculiar case of NSW, an inquiry under s.474 (previously s.475) of the Crimes Act.

Attorney General Jeff Shaw recently said that ex gratia considerations would include findings of wrong doings against the state or its witnesses, such as would be relevant to any common law action.

If it is found the evidence is fabricated or if the prosecution misconducts itself, then compensation would be paid. (Interview with Andrew Olle, Radio 2BL, 17 November 1995) The Attorney General said this when rejecting a compensation claim by Jonathan Manley, who was acquitted of murder by the Court of Criminal Appeal, on the grounds that the verdict was unsafe and unsatisfactory. Manley had spent 12 months in prison and was acquitted because the case against him was hopelessly weak. Had there been a finding of fabricated evidence, then, according to Shaw, Manley may have been compensated. However this distinction has no real relevance to the actual wrong suffered by Manley.

In practice, the ex gratia system is extremely uneven. Large payouts have been made where a special inquiry has been instituted after the person has been exonerated. Thus Arthur Allan Thomas in New Zealand (who served 10 years for murder before being pardoned) was awarded $1.1 million and Harry Blackburn (who was not convicted and served no time in prison) received almost $1 million. Both had Royal Commissions into their cases after they had been exonerated. The Blackburn case was an unusual example where compensation was paid despite the fact that no conviction occurred. Lindy & Michael Chamberlain received a total of $1.3 million for their wrongful convictions (Lindy had served 3.5 years), but others have received much less:

• Edward Splatt in South Australia received $270,000 for 6 years jail
• Ziggy Pohl in NSW received $200,000 for 10 years jail
• Douglas Rendell in NSW received $100,000 for 8 years jail, and
• Paul Alister, Ross Dunn and Tim Anderson in NSW received $100,000 each for 7 years jail.

In the last case, Chester Porter recommended this payment as "rehabilitation compensation". All ex-gratia payments have been made with no fault admitted by the state. Most of these claims took several years to resolve, on top of the many years which the victims had already spent seeking vindication.

In June 1994 it was reported that the then Attorney General John Hannaford was preparing a system of independent assessment of compensation for people who have suffered miscarriages of justice. This was to replace the ex gratia system, as Malcolm Brown wrote in the Sydney Morning Herald (22 June 1994): Mr Hannaford told the Herald yesterday that a system introduced in Britain in 1988, which replaced an ex gratia scheme, was being examined.

"We are looking at the most effective and efficient way of dealing with these to minimise court cases with regards to disputes over compensation," he said.
"We have never anywhere in Australia had a statutory scheme for assessment of compensation. Here in NSW the ex gratia payments have not been compensation, but some payment to help a person get re-established in life."

He agreed that the proposed change was a radical shift in policy. One factor he had taken into account was the number of applications in the system for quashing of verdicts.

At this time two private members bills on compensation were before the parliament, one from George Thompson (ALP) and a second from John Mills (ALP), seeking independent assessment of compensation. A third was being contemplated by Peter Anderson (ALP), on behalf of Alexander McLeod-Lindsay, who was pardoned after having served nine years for attempted murder. However the Liberal government subsequently made no such changes, and the current Labor government has not announced any such plans.

The main problems of the existing ex gratia/common law system of compensation are then these:

• the ex gratia model limits itself to (a) those few who have exhausted all channels of appeal, have managed to secure a special inquiry and have then (by the longest route possible) been exonerated, or to (b) those acquittals where there has been a finding of wrong doing by the prosecution or its witnesses (and therefore the state faces the prospect of a common law suit).
• there are long delays in the consideration of ex gratia matters
• there are inexplicable inconsistencies in payments there is no open process of hearings, or avenue for appeal, in the ex gratia system
• the common law route involves placing an unfair and extremely difficult burden of proof on a person already found to have been wrongly convicted (and often jailed) by the state.

There can be little doubt that an independent tribunal or panel of assessors would act more rapidly, more favourably and with greater consistency than governments of any stripe, under the ex gratia system. A useful precedent is the Victims Compensation Tribunal. A statutory scheme similar to that proposed by John Hannaford in 1994 would be an important step forward. The recognised principles could be applied by this Tribunal, but one contentious issue remains: what about the people wrongly convicted and jailed, but with no proof as to specific wrong doing by the prosecution? The wrong experienced by them is no less than that of others. Should they be included in a miscarriage compensation scheme, just as other schemes have recognised 'no fault' compensation? The answer to this question must take note of a central principle of Australian and international law, that a person found by the courts to be 'not guilty' of a crime is to be presumed innocent, and cannot be called on to prove his or her innocence. This principle suggests that there is little basis to distinguish one miscarriage from another, and that they must therefore be treated equally.

Wood Royal Commission into NSW Police Corruption

Overview - April 1997
Since it's inception in 1987, the Independent Commission Against Corruption failed to uncover or disclose corruption in the NSW Police forces.

The Royal Commission into Corruption in the NSW Police Service was then empowered by NSW Consolidated Act in 1994 and began deliberations. The Act can be downloaded here:

Two and one half years later, Justice James Wood ended the investigations of the Commission in March of 1997, finding endemic and systematic corruption. Justice Wood is scheduled to issue his final report to Parliament in mid-1997.

The Police Integrity Commission was formed by NSW Consolidated Act in 1996 as a result of the Wood Commission's interim findings. The Act can be downloaded at:

In the later stages of the Wood Royal Commission (late '97), Peter Ryan was appointed as the new NSW Police Commissioner. Ryan has dismissed many of the previous deputy commissioners and upper management and has initiated a reorganisation of all police services

Whether Ryan can significantly change the police culture and the underlying attitudes that breed an environment of corruption remains to be seen.

Initial steps by Ryan & Minister of Police Whelan are cause for concern:

In March '97, Ryan disbands Special Branch of the NSW Police Service.
The 'elite' Special Branch institutionalised corruption. Supposedly formed to protect officials and diplomats, SB engaged in domestic surveillance of community and civil liberty groups and lawyers during the normal course of representation of clients and defendants.

At the start of the Wood Royal Commission, SB destroyed over 30,000 files and dossiers. The fate of the remaining 20,000 has yet to be determined. The NSW Council for Civil Liberties, Justice Action and numerous other community groups have demanded that the files be returned to their owners and all copies destroyed.

In April '97, Ryan announced the resurrection of a 'new' Special Branch, until forced to withdraw plans by Minister of Police Ryan.

In early '97, Ryan adopts New York-style Zero Tolerance crime policies for 'quality-of-life' crimes.
Zero Tolerance further increases the powers of a police service proven to be incapable of proper use of existing powers. It further criminalises the activities of the public, despite evidence that, generally, the crime rate has remained stable according to the NSW Crime and Statistics Research Unit, the Australian Institute of Criminology, the Public Prosecutor and numerous judges.

Evidence from NY indicates a dramatic rise in complaints by the public of police abuse, especially from those groups in the minority. Courts are buckling under the dramatic rise in caseload from petty offences, with defendants who are awaiting arraignment held in excess of 72 hours. Zero Tolerance in NY was quickly followed by a significant increase in the police budget and a matching decrease in budget allotments for education and social welfare programs.

Ryan and Whelan have introduced the Street Safety Bill, targeting youth.
The Street Safety Bill will further increase police powers. At the direction of local councils, police can identify any gathering of three or more youth as a gang and disperse or otherwise detain them.

• NSW Prisoner Survey of alleged police corruption
• Outline Submissions to Wood RC Interim Report
• Analysis of Interim Report of Commission - Tim Anderson
• Submission response to Interim Report inadequacies



  • get involved2
  • donate
  • breakout-logo2



Justice Action
Trades Hall, Level 2, Suite 204
4 Goulburn Street
Sydney NSW 2000, Australia

T 02 9283 0123
F 02 9283 0112
E ja@justiceaction.org.au
© 2017 Breakout Media Communications
breakout-logo  womens justice network icon logo-community