Farah Jama is a very lucky man. The justice system, which had failed him so appallingly up to now, has finally got it right with the overturning yesterday by the Victorian Court of Appeal of his conviction for rape. The 22-year-old has spent 16 months in jail after he was convicted by a jury on the basis of tainted DNA evidence.
But while Jama is today rightly celebrating his freedom and presumably preparing to mount a compensation claim for the injustice he has endured, there are thousands of other individuals behind bars or living in the community with a wrongful conviction hanging over their heads.
Australian states and territories need to establish criminal case review committees of the type used in England and Scotland. These bodies have the legal, forensic and scientific expertise and resources to review cases where individuals and their lawyers argue that they have been wrongfully convicted.
In Australia it can take years and thousands of dollars in expenses on the part of individuals and their families to get the authorities to allow a person to have another day in court.
I have had direct experience of this in Tasmania. I acted for a man who had been found guilty of murder, partly on the basis of the evidence of the government pathologist. He and his family refused to accept the verdict and spent thousands of dollars in obtaining four independent pathologist reports, all of which disagreed with the government pathologist’s findings. We spent thousands of hours drafting submissions to the state government on the matter over a three-year period, only to have it rejected by the Attorney-General.
In South Australia, lawyers and supporters of Henry Keogh have been fighting his murder conviction since 1995. Expert evidence has cast considerable doubt on the medical evidence used by the prosecution in that case. Keogh’s legal team has just lodged its fourth submission with the South Australian Governor seeking to have their client released and his conviction overturned.
In most Australian states, some law schools have established Innocence Projects. Staffed by law students, academics and relying on the pro bono help from practising lawyers, these bodies, through no fault of their own, have had little success in helping innocent people have their convictions overturned. They lack resourcing from universities, government, the legal profession and get zero co-operation from investigating authorities. I tried to get such a project up and running at the University of Tasmania Law School a few years ago but to say the dean was less than interested would be an understatement.
So the long and short of it is that in Australia proving that you have been wrongfully convicted is difficult, expensive and drags on for years. All good reasons for the government to step in and establish criminal case review commissions.
The UK Commission and its Scottish equivalent are independent of government. The UK Criminal Case Review Commission has, according to figures published by The Guardian in March this year, reviewed more than 11,600 cases since it was established in 1997 and of those it has sent 385 of back to the court of appeal, which has then overturned 273 convictions. In Scotland 92% of cases it has referred back to the courts in the past 10 years because of doubts about a person’s conviction have resulted in that person having their conviction overturned.
The criminal justice system in Australia is fallible and innocent people go to jail. Governments are all too willing to spend money on police and prosecutors to ensure more convictions but they are coy about protecting the innocent. Jama’s case is the tip of the iceberg.