Current Issues in Criminal Justice
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Marginalisation, Managerialism and Wrongful Conviction in Australia
Joseph MacFarlane[*] and Greg Stratton[†]
Abstract
Wrongful convictions have become a growing area of concern among legal scholars, reflecting the success of the global innocence movement that aims to exonerate factually innocent people convicted of crimes they did not commit. While research into wrongful conviction has focused on specific errors such as investigator misconduct, witness misidentification or false confessions, less attention has been given to the role of race and class in leading to these errors. This article raises these issues and the concern as to how Indigenous Australians may be particularly vulnerable to wrongful conviction as a function of a managerialist approach to criminal justice prioritising efficiency, expediency and risk management over due process. The adoption of such an approach has not only exacerbated Indigenous persons’ overrepresentation, but has also heightened their vulnerability to miscarriages of justice. The vulnerability is largely due to issues of cross-cultural communication, often negative interactions with police, and increasing difficulty in accessing adequate legal representation. This article argues that wrongful convictions, much like other features of the criminal justice system, are likely to disproportionately affect people belonging to typically marginalised social groups.
Keywords: wrongful conviction – managerialism – overrepresentation – miscarriages of justice – Indigenous Australians
Wrongful convictions have become an increasing focus of legal scholars in recent years (Garrett 2011; Garrett 2008; Risinger 2007; Roach 2009). To date, much of the research and advocacy surrounding the issue has emerged from the United States (‘US’), where the death penalty and high incarceration rates intensify the need for accuracy when determining guilt (Walmsley 2013). Comparatively, substantive inquiry into wrongful conviction in Australia is in its infancy (Dioso-Villa 2012; Langdon and Wilson 2005; Stratton 2015; Weathered 2013; Wilson 1989). Importantly, there is little known about causal factors or underlying circumstances that lead to wrongful conviction outside of the American experience (Leo 2005). While our justice systems differ significantly, Australian wrongful convictions are the result of the same failures of their international counterparts (Langdon and Wilson 2005). Central to this knowledge is the work of Langdon and Wilson (2005), who identified that Australia suffers from errors that are the result of systemic and causal factors, including eyewitness misidentification, flawed forensic procedures, false confessions and police or prosecutorial misconduct. Each of the factors identified in the study complimented multidisciplinary research investigating the causal factors contributing to wrongful conviction (for a summary see Garrett 2011). Beyond the knowledge of causal links, the absence of crucial evidence surround wrongful conviction in Australia means there are limits to the identification of those who are most likely to be victims of wrongful conviction.
Since 1989, there have been 1684 exonerations of wrongfully convicted individuals in the US, with 125 of these in 2014 alone (National Registry of Exonerations 2015). Many of the successful exonerations have been the result of the work of innocent projects that work on behalf of those who have been wrongfully convicted, attempting to prove their innocence. It is from these successes that a link between race and overrepresentation in the criminal justice system and cases of wrongful conviction has emerged (Innocence Project 2015; United States Census Bureau 2013). In the US, 70 per cent of wrongful convictions involve the exoneration of an individual from a racial minority (Innocence Project 2015). The success of these exonerations highlights concerns of earlier research that identified a disproportionate link between race or ethnicity with wrongful conviction (Holmes 2001; Huff et al 1996; Radelet et al 1992; Scheck et al 2000). This article proposes that there is a similar, but often unrecognised, propensity for miscarriages of justice disproportionately suffered by Indigenous Australians.
This claim is not unjustified as Australia’s history of wrongful conviction contains striking examples where Indigenous people, including Max Stuart, Frank Button and Kelvin Condren, have suffered from common accepted causal factors that result in justice errors. Beyond these acknowledged cases, the potential for greater recognition of Indigenous wrongful convictions can be built upon the core issues faced by marginalised populations in the criminal justice system, rather than the causal factors that lead to error. This recognition may allow for wrongful conviction to be acknowledged beyond the usual high-profile and more serious crimes to encompass all errors in the administration of criminal justice. Key to this is understanding how Indigenous overrepresentation in the criminal justice system indicates that unrecognised miscarriages of justice are occurring. Responding to new right to appeal provisions in South Australia, Michael Kirby argued that overrepresentation of Indigenous people in the prison population meant the provisions would be applied and sought in a ‘large numbers of cases involving Indigenous Australians’ (Ashford 2013).
While the implementation of system changes may increase the recognition of error, other policies have a potential impact on certain sections of the Australian population. Problematic in this discussion is a range of increasingly managerialist policies that prioritise efficiency and cost-effectiveness over justice. The introduction of paperless warrants under the Northern Territory’s (‘NT’s’) Police Administration Act and curtailing the right to silence in New South Wales (‘NSW’) (Hamer and Edmond 2014) suggest efficiency-led shifts in justice policy that do not cater for the unique cultural, linguistic and economic challenges faced by Australia’s Indigenous population. Our resultant argument is that managerialist systems increase the risk of Indigenous Australians becoming victims of miscarriages of justice.
Leo (2005) argues that recognition of the root causes of miscarriages of justice requires a contextual understanding of how the criminal justice system interacts with individuals based on social characteristics, such as race, ethnicity, class, gender or age. Thus, any understanding of the increased potential for Indigenous miscarriages of justice requires recognition of the issues faced by Australia’s Indigenous population when interacting with key criminal justice institutions, which include a perception of threat, cross-cultural communication and inadequate legal representation. While each may seem to raise familiar discussions of injustice for Indigenous people, they conflate many of the commonly accepted causal factors leading to wrongful conviction. In our view, each represents additional ‘root’ causes of wrongful conviction in the Australian context that disproportionately affects the Indigenous population. In addition to identifying ‘root’ causes, we argue that these errors stand as a consequence of the managerialist practice that informs the manner in which key justice systems actors engage with Aboriginal and Torres Strait Islander people (Blagg 2008; Cunneen 2001; Eades 2013).
Although first-hand accounts and recent case studies would provide strong support of the ‘root’ causes proposed, for many reasons it is difficult to identify and construct a data-driven account of wrongful convictions in Australia. This means that there is a high likelihood of a disparity between the number of identified cases of wrongful conviction and how many have actually occurred in Australia. Acknowledging this, Sangha and Moles (2014) recently provided a conservative estimation that somewhere near 300 wrongfully convicted persons may be in an Australian prison, not discounting those who have served their sentences and been released. It is for the reason of the unknown that the cases discussed here, as well as in other Australian research, only represent the ‘tip of the iceberg’ with regard to Australian wrongful convictions (Dioso-Villa 2012). Accordingly, we are limited in our assessment of Indigenous wrongful conviction to the methods that were also employed by Wilson (1989), Langdon and Wilson (2005) and Dioso-Villa (2012), who obtained data through secondary sources such as academic articles, newspaper reports and case judgments. Despite the limitations, the method allows for an instructive understanding of the unique issues faced by members of a marginalised population and the nature of wrongful conviction faced by their community.
A number of recent shifts in justice policy around Australia have evoked concerns of a new wave of managerialism in criminal justice. It is a concern voiced by Victoria’s Chief Justice of the Supreme Court Marilyn Warren (2012:22), who noted an increasing emphasis on ‘performance measures’ and ‘deliverables’, suggesting the administration of justice had become akin to a ‘car factory’ seeking to meet predetermined departmental outputs. To an extent, this process is reflected in the Northern Territory’s Police Administration Act (NT) which allow for ‘paperless arrests’ to ensure faster processing times and more efficient use of police resources (Giles and Elferink 2014). According to Chief Minister Adam Giles, the changes were justified because they allow the police to be ‘out on the beat, protecting the community, not stuck in the station filling out paperwork’ (Giles and Elferink 2014). The laws had been overtly proposed as a measure of improving effectiveness, and s 133AB contains provisions granting police the power to detain a person suspected of committing an ‘infringement offence’ for up to four hours instead of delivering an infringement notice.
The efficiency that is promoted by the changes under the paperless arrest scheme may have contributed to the death of Aboriginal man Kumanjayi, who died in 2015 while in police custody. Kumanjayi was alleged to have been drinking in a designated dry area, where, according to Coroner Greg Cavanagh, he had not been causing disruption before or during his arrest (Inquest into the Death of Perry Jabanangka Langdon (‘Inquest’) 2015). Despite the offence carrying no chance of imprisonment and a maximum A$74 fine, Kumanjayi was handcuffed, placed in the back of a police van, transported away from family, and detained in a cell where he would later die (Inquest 2015). The Inquest found that there were clear and enormous pressures on police as ‘a result of the paperless arrest scheme and the police initiative known as Operation Ascari II, which encourages the arrest of public drinkers, almost all of whom are indigenous’ (Inquest 2015:5). In his report, Coroner Cavanagh criticised the policy reporting a link between the introduction of the law and a potential increase in the incarceration of Aboriginal people that would perpetuate and entrench Aboriginal disadvantage and create further deaths in custody (Inquest 2015:32). While a sense of justice may have been upheld in the arrest of Kumanjayi, his detention and death demonstrate the consequences of a narrow and inflexible sense of justice.
The response to Kumanjayi’s death highlight concerns that managerialist approaches promote concepts of productivity and cost-efficiency by accepting a consumerist logic toward justice problems (Freiberg 2005; Raine and Wilson 1997). Most importantly, managerialist reforms move criminal justice systems towards focused, efficient and cost-effective methods of processing criminal matters that often reflect a punitive approach to managing the crime risk and sense of justice (Anderson and Dossetor 2012; Bell 2011; McEwan 2011). A 2013 amendment to the Evidence Act 1995 (NSW) illustrated a contemporary shift towards managerialism in Australia. The change significantly altered a suspect’s right to silence by allowing for negative inferences to be drawn regarding a person’s unwillingness to speak to police in serious indictable matters (see s 89A). In advocating the change, Police Minister Mike Gallacher claimed ‘the right to silence can be exploited by criminals and failing to answer police can impede investigations’ (O’Farrell 2012:2). By removing the encumbrance of criminals hiding ‘behind their vow of silence’ the new law presented a managerialist-like solution that also, presumably, promotes efficient police investigations (O’Farrell 2012). These changes to law demonstrate an attempt to improve the efficiency of the investigative process while also including an explicitly punitive rhetoric within such policies. Rather than an important protection for vulnerable suspects, the right to silence is viewed as a hindrance or deficiency in the criminal justice process.
A potential complication of a managerialist approach towards criminal justice rests in the ability of the system to ensure fair and just outcomes. Allowing managerialist frameworks to define how mechanisms such as the right to silence or the presumption of innocence are interpreted can lead to their recognition as impediments to justice rather than protective measures ensuring fairness (Freiberg 2005; Raine and Wilson 1997; Raine and Wilson 1995). This may be particularly exacerbated for Aboriginal clients, who are not only disproportionately represented within arrest and incarceration data (Weatherburn 2014), but also place greater emphasis on silence within traditional patterns of conversation (Eades 2012). Here, managerialist reforms cater little for the requirements of already marginalised suspects, and increase the risk that miscarriages will affect such populations.
Furthermore, where the desire to prioritise efficiency and manage risk may heighten the prospect of wrongful convictions, a managerialist approach to criminal justice might also affect the extent to which the criminal justice system is open to acknowledging, investigating and remedying errors. That is, if wrongful conviction cases occur at a ‘manageable’ rate, they will remain unrecognised if there is the belief that most criminal cases end satisfactorily. While governments, courts or law enforcement agencies might acknowledge the undesirability of wrongful convictions, they may be willing to accept their occurrence rather than risk the potentially costly and resource-intensive task of identifying and remedying them. This may, at least in part, be exemplified by research that suggests that most victims of wrongful conviction do not receive financial compensation or a formal admission of error by criminal justice practitioners or the state (Dioso-Villa 2012).
While the concept of wrongful conviction remains contested, we adopt a broad definition that includes cases where the factual innocence of a person may not be established, but doubt or supposed error in the person’s conviction remains. By allowing for an encompassing definition, we can consider cases where incompetence, indifference or discriminatory attitudes within the justice system led to unacceptable levels of doubt or concern in particular cases. Adopting this definition, it is difficult to construct a data-driven account of such wrongful convictions in Australia. In the absence of such data, we draw upon known cases of wrongful conviction to illustrate the issues being discussed. These cases, while limited, remain instructive about the nature of wrongful conviction in Australia and the unique issues that face members of a marginalised population within the criminal justice system.
Despite a well-publicised history of wrongful conviction in Australia, there remains no reliable estimate regarding the rate of error in the country’s criminal justice system and the wealth of American research regarding error rates has strongly influenced Australian understandings of the fallibility inherent in our justice system (Colvin 2009; Gross et al 2014; Risinger 2007; Weathered 2003). Conservative estimates from the US have suggested between one to five per cent of those convicted of serious offences are innocent (Huff, Rattner and Sagarin 1996; Risinger 2007). Recent analysis from Gross et al (2014) suggests that approximately four per cent of all defendants currently on death row would eventually be found to have been falsely convicted. Importantly, the studies suggest that these figures may rise if less serious types of offences were included in approximations of wrongful conviction rates in the US.
While the estimates from overseas may guide some estimation of wrongful conviction in Australian, they do not offer any insight into the unique elements within the Australian system that may limit the propensity for error. For example, some mechanisms that limit errors, such as the recording of police interrogations and readily available legal aid for defendants, have helped identify cases where the innocence of an accused was proved (Weathered 2013; Weathered 2003). Furthermore, elements of the US model, such as the election of prosecutors and trial judges, expose the system to fundamental flaws that may lead to a greater number of errors than experienced in Australia (Weathered 2013). As such, estimates of wrongful conviction in Australia are difficult to determine.
Although addressing the rate of wrongful conviction in Australia is problematic, more is understood about causal factors that lead to error (Bedau and Radalet 1987; Huff et al 1986). The advent of DNA science has been able to conclusively prove these causal factors, which include eyewitness misidentification, prosecutorial or police misconduct, investigator tunnel vision, trial perjury, inadequate counsel, and false confessions (Colvin 2009; Roach 2009). Australia’s history of wrongful conviction contains striking examples where Indigenous people have suffered from the accepted causal factors that result in justice errors. For instance, examples of false confessions have seen the likes of Max Stuart, Jeanie Angel, and Kelvin Condren suffer from miscarriages of justice. Condren’s confession is notable as he falsely confessed to a crime he could not have committed as he was in police custody at the time of the crime, yet he was still convicted of murder (for a summary of Condren’s case see Matthews 2004). However, these cases have only noted errors in the most serious crimes with long sentences, meaning there may be oversight across a range of criminality in society. Equally important has been the acknowledgment from research identifying the pressures of media attention, public opinion and moral panics in leading to erroneous outcomes (Grometstein 2008; Langdon and Wilson 2005; Stratton 2013). While only one of these factors is required to lead to an error, wrongful convictions typically involve a combination (Huff et al 1986).
The American perspective has influenced Australian understandings with similar issues readily identified as causal factors of wrongful conviction (Weathered 2013). Many famous cases of wrongful conviction in Australia — including high-profile exonerations of John Button, Andrew Mallard, the Mickelberg brothers, and Lindy Chamberlain — highlight the same causal factors identified in the US. Despite the similarities with the US, a study by Langdon and Wilson (2005) highlighted that Australia’s relationship with wrongful conviction raises a range of contextual issues. For example, of the limited number of wrongful convictions identified in Australia, eyewitness misidentification played a relatively minor role (16 per cent of cases) when compared to the hugely influential role it plays in American errors (Langdon and Wilson 2005). More problematic in half the cases identified in Australia was the issue of overzealous policing, including the coercion of confessions or distorting witness statements (Langdon and Wilson 2005). Similarly significant in the Australian context was the use of unreliable, inconclusive or circumstantial evidence leading to a wrongful conviction (44 per cent of cases) (Langdon and Wilson 2005).
Langdon and Wilson’s (2005) findings highlight two important elements related to Australian wrongful convictions. The first is that while Australia only has a very small sample of existing research into wrongful conviction, the broader context of causal factors has been reasonably translatable from the international literature. The second point highlights that although there are consistencies between international and Australian experiences of wrongful conviction, the distribution of these factors is unique to cultural and systemic elements influencing the criminal justice system. Eyewitness misidentification provides a good example of this influence. While a clear issue in US errors, it has not been viewed as an overwhelming problem in Australia (Langdon and Wilson 2005; Wilson 1989). This could be due to any number of cultural, social and systemic factors, including the improved use of police line-ups, reduced influence of cross-racial identification, police interviewing techniques, criminal activity, and the availability of legal assistance to ensure witness testimony is properly cross-examined in court. Although these factors have been established within the Australian context (Norris and Bonventre 2013; Weathered 2013), there has been a lack of discussion surrounding the relationship between Indigenous overrepresentation and wrongful conviction. Understanding why an Indigenous person might be more likely to be subject to such an error requires an understanding of:
• Indigenous overrepresentation and the perception of threat;
• cross-cultural communication and interaction with the justice system; and
• legal representation for Indigenous Australians.
Each of these represents a potential ‘root’ cause of wrongful conviction in Australia. They offer an understanding of the potential for error as a consequence of justice managerialism and the manner in which the criminal justice system has traditionally approached Aboriginal and Torres Strait Islander people (Blagg 2008; Cunneen 2001; Eades 2013). Here we investigate these three issues as potentially unique to the Australian and Indigenous experience of wrongful conviction.
The overrepresentation of Indigenous Australians in every phase of the criminal justice system highlights a number of social, political and cultural concerns about the equity and fairness of Australian society (Cunneen 2001; Schwartz and Cunneen 2009; Weatherburn et al 2003; Weatherburn 2014). Despite constituting only three per cent of country’s population, over one-quarter of Australia’s prison population identifies as an Aboriginal or Torres Strait Islander (Australian Bureau of Statistics (‘ABS’) 2011, 2013). The issue is of particular concern in the NT, where the number increases to 86 per cent of the prison population (ABS 2011, 2013). In addition to overrepresentation in prisons, Indigenous Australians are also significantly more likely to come into contact with police and be held in custody, often for relatively minor offences (Anthony and Blagg 2012; Blagg 2008; Cunneen 2001). While the data regarding Indigenous overrepresentation in the justice system is consistent, understanding the factors behind the consistency is complex. Importantly, it generally accepted that such a stark issue is not simply a result of actual higher rates of offending within Indigenous communities, but is reflective of institutional and systemic discrimination and bias (Blagg 2008; Cunneen 2006, 2001; Weatherburn et al 2003). Considering the combination of overrepresentation, discrimination and bias raises questions over the fairness and adequacy of the findings in cases involving Indigenous Australians.
The international experience of issues of overrepresentation based on race and its application to wrongful conviction data highlights why such concerns may be warranted. For example, where African Americans make up around 13 per cent of the overall US population, they represented 37 per cent of the prison population (US Census Bureau 2013). The overrepresentation is extended to the issues of wrongful conviction with the US Innocence Project (2015) noting that of the 330 post-conviction DNA exonerations they have assisted, 205 have involved innocent African Americans. Similar overrepresentation issues are experienced by Indigenous Canadians, where the potential for racial disparity and wrongful conviction is similar to US experience. In 2011–12, Aboriginal people comprised just three per cent of the total Canadian population, yet their incarceration rate was 10 per cent greater than for non-Aboriginals (Public Safety Canada 2012). They were also typically younger, with 48 per cent of Aboriginal offenders being under the age of 30, compared to 38 per cent of non-Aboriginal offenders (Public Safety Canada 2012).
Much like the Australia, Canada has demonstrated a vulnerability to error through the wrongful conviction of its Indigenous population. For example, an inquiry into the case of Donald Marshall, a 17-year-old Mi’kmaw Aboriginal wrongfully convicted of murder, concluded that had he been Caucasian, the investigation and trial stages of his case would have been conducted with far more care and rigour (Roach 2009). Tanovich (2013) also found that cases where police had used deception during the investigation process typically involved Black or racialised suspects. Similar issues were identified in the case of Jason Hill, an Indigenous man who was wrongly convicted of armed robbery due to a confluence institutional and systemic errors. Hill’s case contained inconsistencies among witness identifications that were exacerbated when he was used as the only Aboriginal man among mostly Caucasian line-ups conducted after Hill's photo was released to the media (Roach 2013; Ruparelia 2008). Further emphasising the institutional failure in Hill’s case, the police withheld potentially exculpatory evidence that identified two other men as the perpetrators of the crime and a series of similar crimes known as the ‘plastic bag robberies’ (Ruparelia 2008). While these cases highlight the potential for error in investigations, they also demonstrate how key decisions made by key actors in the criminal justice system can either deliberately or unintentionally establish race as a defining element of criminality (see also Taslitz 2009).
More broadly, the overrepresentation of minority groups in the justice system has the potential to create and perpetuate perceptions of criminality or risk (Fitzgibbon 2007; Hazlehurst and Dunn 1988). This has implications for methods of law enforcement basing interdiction on the prediction of dangerous or ‘high-risk’ groups, which may become based on generalisations about race and ethnicity (Carpenter et al 2015; Chan and Chunn 2014; Silver and Miller, 2002; van der Leun and van der Woude 2011). These perceptions allow authorities to claim that discriminatory practices are not the result of overt or subconscious bias, but rather of disproportionate criminality among certain groups (Fitzgibbon 2007; Ruparelia 2008). This extends to the broader community, where overrepresentation has led to a tendency for the public to overestimate the number crimes committed by racial minorities (Ghandnoosh 2014). Moreover, those who more readily link criminality with minority status are more likely to support punitive policies to control the risk of offending among that group (Ghandnoosh 2014). Such tendencies are problematic to criminal justice systems focusing on managerialist approaches that attempt to make policing a more efficient process through the actuarial prediction of crime and the management of risk (Fitzgibbon 2007). The danger is that enveloping a perception of risk within criminal justice policy potentially entrenches and formally systematises the belief that certain groups represent a disproportionate threat to public safety. A legitimate concern that people come to be labelled as naturally predisposed to crime, inherently worthy of suspicion and, therefore, the focus of excessive and unwarranted targeting by the criminal justice system. The potential in this perception reflects the concerns of Parker et al (2003), who linked Blalock’s (1967) power-threat hypothesis in developing an understanding of the relationship between race and wrongful convictions. They argue that, in the US, the combination of public opinion and state power have reflected a power imbalance along racial lines that has led to the disproportionate number of wrongful convictions among racial minorities (Parker 2003). It follows that, in this regard, when working in tandem with perceptions of risk, managerialist criminal justice systems reflect and contribute to marginalisation.
An illustrative example of the intersection between managerialist justice policy, race and perception of criminality can be found in the NT National Emergency Response (often referred to as the ‘Intervention’). This policy was largely based on stereotypes and myths about Indigenous offending, particularly the sexual abuse of children (Tedmanson and Wadiwel 2010). Mal Brough, then Minister for Indigenous Affairs, made a now recanted claim that paedophile rings were operating in remote Aboriginal communities in the NT (Anthony and Blagg 2012). The ensuing policy changes were explicitly aimed at Indigenous communities and led to substantially increased law enforcement targeted at not just alleged sexual abuse and domestic violence, but also alcohol consumption and pornography. The intervention has also relied upon the Australian Crime Commission as a support mechanism for local law enforcement. The Commission possesses coercive powers that effectively remove the right to silence, compelling suspects to respond to questions posed by Commission officers (Australian Crime Commission 2014). While there are human rights issues in the implementation of such mechanisms, their use and targeting of a specific population also creates a fertile ground for wrongful conviction. Greer (1994) suggests diminishing or removing the right to silence threatens due process and heightens the risk of false confessions. Given a context where members of the Indigenous population are already vulnerable in their interactions with the criminal justice system (Eades 2013), it is hazardous to add to the systemic environment where this protection is removed.
Accompanying the perception of criminality and racialised responses of the criminal justice system, cross-cultural communication difficulties when interacting with the system present further risk to Indigenous Australians and the potential for error (Weathered 2013). A common example rests in the communication difficulties that arise in the complexities of legal language, which creates a barrier between the legal profession and its ability to effectively communicate legal issues with the general public (Gibbons 2003). The inaccessibility of legal language has drawn criticism because of its tendency to avoid plain English, which can often make elements of the criminal justice process simply inaccessible for lay people. Such language differences epitomise an inherent power imbalance between those unfamiliar with the process and language of the law and practitioners embedded within it (Gibbons 2003). The issue is exacerbated for some Indigenous Australians for whom English is not their first language, and who are already disadvantaged by inequality regarding access to education (Schwartz and Cunneen 2009). Importantly, awareness of these matters and efforts to improve cross-cultural training have increased significantly and continue to be implemented and revised throughout the justice sector (Farrelly and Carlson 2011; Grossman et al 2013; NSW Police 2014).
Despite the efforts being made to improve cross-cultural training, it remains important to recognise how essential language is, given the potentially severe consequences of poorly trained legal counsel representing Indigenous clients. The case of R v Kina illustrates how a lack of commitment and insufficient ability to understand Indigenous clients can lead to a miscarriage of justice. Kina was convicted of murdering her husband despite physical and psychological abuse that she had suffered for many years during their relationship. In most circumstances, being a victim of long-term domestic violence would have been raised at trial as an adequate defence of provocation and self-defence. However, Kina’s lawyers were untrained in and inexperienced at communicating with Indigenous clients. These deficiencies meant that, rather than eliciting crucial evidence that would have considered her past, cross-cultural language barriers led the lawyers to deem Kina unwilling to give evidence before a jury (MacKinlay, Thatcher and Seldon 2004).
The injustice of Kina’s case identifies a common issue faced by many Indigenous Australians unaccustomed to the highly direct form of questioning employed in almost every stage of the criminal justice process (Eades 2013). When presented with direct questions of this types, Indigenous people often respond with periods of silence that represent a range of language and cultural differences including English proficiency and respect for elders and authority (Eades 2002, 2003, 2013). Without the assistance of an Aboriginal legal agency, Kina’s lawyers interpreted silence as an unwillingness to cooperate, rather than a cross-cultural difference (Eades 2002, 2003; MacKinlay et al 2004). The resultant short trial lasted less than half a day due to an inadequate defence that did not raise the arguments of provocation or self-defence. It was not until five years into her life sentence that an appeal heard evidence of the abuse Kina had suffered at the hands of her husband, and her conviction was quashed by the Supreme Court.
The importance of mechanisms that identify cross-cultural language barriers is highlighted by what Eades describes as the ‘gratuitous concurrence’ of Indigenous suspects during police interviews (Eades 2002, 2003, 2013). Gratuitous concurrence represents a situational strategy whereby Indigenous Australians tend to agree with questions by default when confronted by White Australians in power in an attempt to placate the questioner (Eades 1992; Lauch 2010). The concerning aspect of this strategy involves Indigenous people agreeing to questions by default. Such agreement often occurs regardless of the person’s understanding or interpretation of the question, and omits any interpretation the individual may have on the proposition raised (Eades 2013:101).
Gratuitous concurrence was a factor in the conviction of Basil Dumoo, who in 1996 was convicted of possession and consumption of alcohol in a restricted area (Dumoo v Donald Anthony Garner). The only evidence supporting the charge was incriminating admissions made during a police interview. When appealing his conviction, Dumoo’s lawyers claimed that the interview should be deemed inadmissible on two grounds. One was that his admissions had not been made voluntarily due to the interviewing officer not establishing or properly informing Dumoo of his right to silence, highlighting the susceptibility of Indigenous defendants to misunderstandings of the justice system. The other argued that the evidence should be deemed inadmissible due to the circumstances in which the admission was elicited. Dumoo claimed that, according to the NT’s Anunga guidelines (R v Anunga), an Indigenous suspect must have a friend present during the interview as well as an interpreter, both of whom were absent in his interview. The Anunga guidelines were designed to lessen the disadvantage that many Aboriginal people face when dealing with the police (R v Anunga). Despite this requirement, a transcript of the interview indicated Dumoo had been asked whether he understood that he was not legally required to answer the questions being asked of him. Throughout the interview Dumoo repeatedly answered ‘yeah’ to ‘do you understand?’-type questions, indicating a propensity to agree with, rather than respond to, the interviewer (Dumoo v Donald Anthony Garner). Eades (2013) suggests such willingness to agree represents a strategy to appear socially amenable and to win the favour of the questioner and hasten the interaction. This strategy, in combination with the lack of appropriate representation during the interview, led to the recognition of an error. As a consequence, Dumoo’s conviction was quashed one year later by the Supreme Court of the NT (Dumoo v Donald Anthony Garner).
The miscarriage of justice suffered by Dumoo may be indicative of a trend when the demand for criminal justice efficiency interacts with mechanisms aimed at protecting due process that create investigative delays. While many safeguards to ensure cross-cultural understanding have been developed in Australia (for example, the Anunga guidelines or Law Enforcement (Powers and Responsibilities) Regulations 2005 (NSW)), their development does not protect against a perception of inefficiency or ignorance by key justice system actors. These perceptions may even be encouraged when managerialist shifts in policy begin to emerge, or when departmental cost-cutting and efficiencies become priorities.
One example of the prioritization of efficiency over the cultural appropriateness of the law rests in the 2006 conviction of five Indigenous youths in NSW. Ian, Garry and Vivian Campbell and Brett and Steven Rotumah were convicted of affray after a violent incident where they had confronted two men responsible for racist graffiti. Central to their convictions were the admissions the youths made to the police during the investigation. An appeal to the conviction was heard on the grounds that police had failed to inform the NSW Aboriginal Legal Service and failed to provide the defendants with adequate, culturally appropriate representation prior to conducting the interviews (Campbell v Director of Public Prosecutions). The actions of police in this case contradict the Law Enforcement (Powers and Responsibilities) Regulations 2005 (NSW), which entitles ‘vulnerable’ groups, including people of Aboriginal or Torres Strait Islander heritage, to the presence of legal support during any investigative procedure. Specifically, reg 33(1) states that:
If a person detained is an Aboriginal person or a Torres Strait Islander ... then the custody manager must:
(a) immediately inform the person that a representative of the Aboriginal Legal Service will be notified:
(i) that the person is being detained in respect of an offence, and
(ii) of the place at which the person is being detained, and
(b) notify such a representative accordingly.
The Court found that a miscarriage of justice had occurred because the police had failed to notify the Aboriginal Legal Service of the detention of the defendants, yet proceeded with their interviews. In quashing the conviction on appeal, Hidden J found that if the admissions had not been made to police, the defendants would not have been convicted.
In the cases of Basil Dumoo and the Rotumahs and Campbells, the police did not act with any deliberate malice in failing to provide the suspects with the necessary representation and support. Similarly, the system had itself attempted to limit cross-cultural and language issues by implementing guidelines, policies and laws. However, both cases suggest that oversight can occur when officers hasten the investigative process and aim for efficient outcomes. In this sense, the inability of the system to ensure a suspect is suitably represented occurs due to the pressures of efficiency and expediency being prioritised over oversight, regulation and direction in upholding due process. Accordingly, minor offending, such as that by the Rotumahs and Campbell or Basil Dumoo, may have a greater potential for a miscarriage of justice, as police and prosecutors might place less emphasis on rigorous investigation and potentially be encumbered by time and resource constraints. Exacerbating this is the fact that less serious cases will likely not command as much, if any, attention from advocates willing to investigate post-conviction (Gould and Leo 2010).
The case of Campbell v Director of Public Prosecutions emphasises the importance of adequate legal representation when working on the behalf of Indigenous Australians. It is important here to remember that even though this case may have not involved an Aboriginal legal service, the defence counsel remains entrusted with the responsibility to both properly inform suspects and defendants of their basic rights and protect the accused from the errors of the system. These errors may include the recognition of witness misidentification, police rushing to judgment, or the non-disclosure of potentially exculpatory evidence (Bernhard 2005:220). If the defendant is significantly disadvantaged by the oversight of his or her representative in this role, a just outcome becomes less likely (Bernhard 2005). Suitable defence representation allows for a thorough investigation of a client’s case, an examination of prosecution evidence, and protections against self-incrimination or false confessions during police interrogations. Furthermore, it more broadly allows a jury to consider an alternative narrative to that being presented by the state in a criminal matter. Given the expertise that can be found in Aboriginal legal services in identifying such issues and acknowledging the mechanisms that should be enforced, it is unlikely that Kina, Dumoo or the Campbells and Rotumahs would have been convicted if they had been appropriately represented during the pre-trial processes and court hearings.
Many of the problems associated with poor legal representation stem from a funding model that often neglects legal defence services in preference for criminal justice policies focusing on efficiency, immediacy and punitiveness (Bernhard 2005; Gould et al 2013). In Victoria, a recent report from the Auditor-General indicated that demand for legal aid has significantly increased since 2008, yet Commonwealth and state funding for Legal Aid organisations remains stagnant (Victorian Auditor-General 2014). Western Australia Legal Aid (2013) expressed similar concern, arguing that current Commonwealth funding is simply insufficient to adequately serve those most in need of legal assistance.
Victorian Legal Aid (2014) found that the underfunding of legal defence resources will have the greatest effect on already marginalised people. The highest-frequency users of their services are often young, suffering from a psychiatric issue, acquired brain injury or cognitive disability, and/or are of Aboriginal or Torres Strait Islander descent (Victoria Legal Aid 2014). Similar research has found that the issue is the same in most other states, with the young and those living in poor or racialised communities the most likely to suffer when legal aid funding is insufficient (Coumarelos et al 2012). This is particularly important in remote areas where people increasingly face difficulties accessing support as a consequence of distance, time and understaffing (Western Australia Legal Aid 2013). The funding pressure has itself led Legal Aid to enter a pseudo-managerialist approach that focuses upon an ‘efficiency of justice’ by tightening the criteria regarding which cases are offered support. The most serious cases, which involve a potentially lengthy term of imprisonment for a defendant, are given priority. The consequence of this is that in less serious cases defendants could find themselves without any representation (Savage 2013).
In Australia, much of the discussion surrounding wrongful conviction has traditionally revolved around high-profile cases and serious crimes, such as murder and manslaughter. The acknowledgment of errors in less serious convictions is a rarity; however, the conviction and subsequent acquittal of Stephen Foster (Foster v The Queen) provides an indication that miscarriages of justice can be identified and rectified with adequate representation. An illiterate, Aboriginal man, Foster was convicted of maliciously setting fire to a High School in NSW in 1987. The crucial evidence that led to his conviction was a confessional statement that was coerced from the accused who could not read or write, taken in the absence of legal representation and under physical threats from the police (Foster v The Queen). While this case is often cited for its concerns of legality and voluntariness, it was in seriousness of the crime and the offender’s knowledge of the legal system that vulnerabilities to miscarriages of justice emerged. One of these vulnerabilities rests in the delay in achieving justice for Foster. By the time the High Court had found in his favour, Foster had already served his full
18-month sentence (Foster v The Queen). This highlights a concern in identifying wrongful conviction in less serious cases as without adequate legal knowledge or representation Foster’s conviction would have remained. Without the work of those representing him a miscarriage of justice would have gone unnoticed and unacknowledged. Although Foster’s case was identified by the Court, comparing the range of potential factors that lead to wrongful conviction with the number of cases held before Australian courts reinforces a strong argument for a high level of thoroughness and critique by all defence counsel.
However, where examples like Foster demonstrate the need for thoroughness, efficiency-led policies expose justice instruments to miscarriages of justice through under-funding and over-working those who can provide such insight. While underfunding diminishes the capacity of agencies to provide assistance, a greater burden is invariably placed on Legal Aid resources in the face of increasing demand. For this reason, it is likely that organisations that aim to provide resources to the most need (such as Victoria Legal Aid) are beginning to reflect the managerialist perspective in an effort to achieve efficient outcomes by making little secret their desire for ‘early resolution to legal problems’ in order to meet demand (Victoria Legal Aid 2014). However, while increasing efficient use of resources, there rests the potential for a miscarriage of justice to occur through a plea bargain. In this regard, an innocent person may feel forced to accept a deal being offered in the presence of a well-armed prosecutor and the absence of suitably prepared defence counsel (Gilchrist 2011). This has possible implications when considering, for example, the role of Koori Courts in Victoria, the jurisdiction of which is limited to those defendants who have already entered a guilty plea and are willing to participate in its proceedings (Sentencing Advisory Council 2010).
The issue of Indigenous overrepresentation in the criminal justice system represents a confluence of social, political and economic issues. Existing issues of the perception of threat, cross-cultural communication and inadequate legal representation are manifest as vulnerabilities that may lead to errors when the administration of criminal justice seeks to manage risk and improve efficiency. There is currently a re-emergence of managerialist approaches in Australia that may potentially lead to investigative, administrative and process errors on the part of the police, prosecutors and other criminal justice practitioners who carry out the day-to-day operation of the policies. Of concern is a history of such pressures leading to deliberate misconduct in the interests of obtaining convictions that have adversely impacted vulnerable populations (Corruption and Crime Commission 2012). We argue that, as a result, the risk of miscarriages of justice and wrongful convictions may be particularly high for many Indigenous Australians. As a population, they are targeted by law enforcement and overrepresented within the criminal justice system, meaning there is a potential for a perceived threat of criminality and unfounded concern over certain members of the community. Adding to the problem, many Indigenous Australians face cross-cultural communication issues within a system where the majority of police, defence lawyers, judges, jurors and prosecutors only speak English. Moreover, once they converse with actors within the system, Indigenous Australians encounter an unfamiliar legal language and practitioners typically possess little understanding of the nuances in Aboriginal ways of communicating (Schwartz and Cunneen 2009).
Finally, these issues may not be caught by a defence counsel whose resources can often be severely limited in comparison to those available to police and prosecutors. For marginalised people facing criminal charges it is becoming increasingly difficult to access well-prepared and culturally appropriate defence representation (Aboriginal Legal Service NSW 2013; Human Rights Law Centre 2013; Schwartz and Cunneen 2009; Western Australia Legal Aid 2013). Inadequate defence representation can significantly affect criminal justice outcomes, and it is clear that a majority of those accused have little choice but to be represented by overburdened or underprepared counsel (Rakoff 2014). Yet a managerialist approach to criminal justice, where efficiency is essential and early plea deals are desirable (Freiberg 2005), either willfully accepts or gives little priority to such notions of fairness. It increasingly seems that offering a rigorous defence is regarded as a hindrance to efficiency, rather than being as necessary to fairness and truth-finding. From this perspective, increased funding for public defence services becomes difficult to justify both politically and economically. More concerning is that defence representation, when available, may be unaware of the concerns raised in this article, resulting in continuing opportunities for miscarriages of justice to occur.
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[*] School of Global, Urban and Social Studies, RMIT University, Level 2, Building 37, 411 Swanston Street, Melbourne Vic 3000 Australia. Email: joseph.macfarlane@rmit.edu.au.
[†] School of Global, Urban and Social Studies, RMIT University, Level 2, Building 37, 411 Swanston Street, Melbourne Vic 3000 Australia. Email: gregory.stratton@rmit.edu.au.
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