Invisible innocence: it happens here too

I was wrong.

When Chris Nyst and Jason Murakami from Nyst Lawyers suggested the Griffith Law School create an innocence project, I was excited. It appealed to my ideals of justice; I was young and idealistic. None of us imagined how difficult it would be to have post-appeal reviews of innocence claims properly considered, or that it would take a decade to establish guidelines to make it possible.

From the outset we were thwarted as we sought information about cases where DNA evidence existed. It took almost seven years after our investi­gations began into two cases before we were even told whether evidence existed.

Semester after semester, year after year, I told my students about countless letters; numerous meetings with government authorities; exhausted Freedom of Information avenues; meetings with Attorneys-General – five since the project began; briefs prepared for counsel; project advisory board meetings and the board's support for DNA innocence testing; and formal submissions for law reform prepared and presented to gain information. Inevitably at least one student would ask, somewhat mystified, 'But why won't they tell you whether evidence exists? Why won't they do a DNA test?' I would attempt to explain the complexities involved as I understood them, but felt I never satisfactorily answered their questions, as even today I am unsure exactly what the full answers are.

Wrongful conviction is an almost impossible predicament. It is not meant to occur in a civilised society with a sophisticated criminal justice system. But it does. And effecting even a minor change in a criminal justice system that is respected and well established is never easy.

Australia is different to the United States. The problem is not the same, for our systems are different. In many cases we have greater protections to help prevent wrongful conviction in the first place – audio or video recording of interrogations, time limits on how long a suspect can be held in custody. Our judges are appointed and not elected. But we can make terrible mistakes – Lindy Chamberlain, John Button, Edward Splatt and Andrew Mallard are just a few Australians who have endured wrongful convictions.

Commissions of Inquiry in Australia have long highlighted the potential for wrongful conviction through overzealous policing or police corruption. 'Verballing' of suspects was found to be commonplace by the 1980s Fitzgerald Inquiry in Queensland. The Wood Royal Commission in 1997 in New South Wales highlighted flaws in police practice there. There is no easy answer to the problem of wrongful conviction. It requires vigilance – by politicians, lawyers, journalists, and all others who care about the rule of law and criminal justice.

Because our criminal justice system is not perfect, wrongful convictions will continue to occur. YouTube and the internet more broadly have made footage readily available of severely inappropriate manhandling of suspects by police officers. One 2010 recording shows a police officer assaulting a man and a woman, including shoving a hose into the man's bloodied face. Acceptance of the system's imperfections does not equate to complacency. It moves us to recognise something must be done and the disempowered position of our applicants adds to our sense of responsibility.

One of the clear lessons from the US innocence movement was how DNA testing shed new light on old cases. Innocence projects were highlighting how much could be achieved by law students working under the supervision of experienced criminal lawyers and academics. They became a unique resource, able to undertake much of the time-consuming case review for course credit. The applicants have someone to review their case free of charge; the students gain a much better understanding of the strengths and weaknesses of the criminal justice system, work on real cases where principles of justice are highlighted, and become skilled in managing files. For many, it is a return to the ideals that attracted them to the study of law in the first place.

The Griffith Innocence Project, modelled on and adapted from these projects, focuses on cases where DNA has the potential to uncover a wrongful conviction. Each semester students learn a great deal about the criminal justice system, work on real cases and, as a result of their experiences, seemingly further develop the desire to add their fingerprint to the efforts for justice.

Before it can be determined whether DNA testing could highlight a wrongful conviction, a thorough review of the material used at trial to secure the conviction is needed. Consideration of witness statements, records of interviews with police, brief of evidence, committal and trial transcripts, and any other available scientific evidence are also part of the review. The key question becomes: what biological material could be DNA tested that might show a wrongful conviction, to exclude the applicant and potentially provide the DNA profile of the real perpetrator?

To be probative, the biological material to be DNA tested needs to be sufficiently connected to the crime. For example, DNA testing of a rape kit has the potential to confirm the correctness of the conviction. If the DNA profile obtained not only excludes the person convicted but matches another on the criminal database, it also possibly identifies the perpetrator. In 117 of the US DNA exonerations, the true suspect or perpetrator has been identified.