Does Australia have a problem with wrongful convictions? It’s time we got serious about finding out
- Written by: Weekend Times
When we talk about wrongful convictions in Australia – by which we mean convictions identified as wrong only after all appeal rights have been exhausted – the first question we are asked
is: do we really have a problem? The second is, how would we know?
Unfortunately, the answer to both is: we do not know because nobody counts. So, actually getting to the answer requires a couple of stops along the way.
The United States Innocence Project claims there are “staggering” numbers of wrongly convicted prisoners in American jails. Since the early 1990s, more than 600 people in the US have been exonerated on the basis of DNA testing of retained biological evidence – this means testing that should have revealed the DNA profile of the convicted person if they had committed the offence, but did not.
These people spent on average 13.5 years in jail. Retrospective analyses of these exonerations revealed the various failures leading to the wrong convictions. They include:
- false confessions
- inaccurate eyewitness evidence
- invalid or misleading forensic evidence
- inaccurate or deceptive informant evidence
- prosecutorial and/or police misconduct
- inadequate defence representation
- biases associated with the race or ethnicity of the accused.
There is no reason to suppose these failures are limited only to those cases where biological material is retained. They pervade the system. The claim of staggering numbers of wrongly convicted people in the American prison system is entirely plausible.
We draw no conclusion about the scale of the problem in Australia based on this – after all, there are major differences between our criminal justice systems and our cultures. But we can no longer be complacent about the possible existence of a problem. Unless we actively inquire, it will remain hidden.
The UK experience
In the United Kingdom, the Criminal Cases Review Commission (CCRC) was established in 1997 to deal with this issue. In 2024/25, the CCRC, with a staff of 124 people and a budget of ₤GB 9.07 million ($A17.26 million), considered 1,480 cases and referred 31 to the Court of Appeal. Twenty-seven cases were decided by the Appeals Court in 2024 with convictions quashed in 18. This translates to an acquittal rate of 66%.
Furthermore, between 1997 and September 2025, the UK CCRC referred 859 cases to the appeal courts, an average of 31 per year. The courts quashed convictions in 603 of these cases, (an acquittal rate of 70%).
If these numbers are extrapolated proportionally, taking into account the relevant national and prison populations, since 1997 in Australia there would have been approximately:
- 300 cases referred to appeal courts
- 210 convictions quashed
- 90 convictions upheld or awaiting judgement.
Academic Rachel Dioso-Villa’s repository of wrongful convictions – populated by painstakingly going through court reports and newspapers across the country – found only 48 between 1997 and 2015. She acknowledged it was likely to be an underestimate.
Our assessment resonates with a 2014 estimate that then there may then have been nearly 300 wrongfully convicted persons in prison in Australia.
If our extrapolations from the UK CCRC are anywhere near correct, there is every reason to believe that, if Australia had a CCRC, each year about eight or nine people in Australia (after all their appeals have been exhausted) would be confirmed to have been wrongly convicted.
At the very least, the evidence is such that the burden of proof should now shift to the authorities to demonstrate this is not the case.
Based on the experience in the US and the UK (and Canada as well), there is now no room for complacency. While the reality is that we just do not know how many wrongfully convicted people are presently in prison, there are many. We need to accept the high likelihood that in Australia we have a significant problem with numbers of wrongful convictions not being remedied via our appeal processes.
We have no reliable system for finding out just how big this problem is – and importantly, then doing something about it – because we have no system designed to find wrongful convictions.
Indeed, the system is designed to make it almost impossible for wrongly convicted people to be recognised. It must be replaced by a national criminal cases (or miscarriage of justice) review commission.
Stephen Cordner and Kerry Breen are co-authors of the second edition of Wrongful Convictions in Australia.
Kerry Breen and Stephen Cordner are co-authors of the second edition of Wrongful Convictions in Australia.
