Wrongful convictions and an honest but mistaken witness

Imagine of being accused of something horrible you didn’t do. Of your friends and family hearing that you have been charged with something terrible. Imagine going to prison knowing you are completely innocent. Remember some inmates do horrible things to people charged or convicted with child sex offences. Imagine rotting for decades behind bars. Sounds like a horror story, right? As criminal lawyers, the thought of failing a client who is innocent, is a nightmare.

Sadly, our justice system isn’t perfect and its failures can be colossal on the lives of some people. David Eastman was wrongfully jailed for 19 years for the murder of an Australian policeman, Colin Winchester. His mother and two younger siblings died during his imprisonment. He not only lost out on a significant chunk of his own life, but he lost the chance to spend time with his loved ones. No amount of money in the world can buy him that opportunity. Western Australian Gene Gibson spent almost 5 years behind bars for the killing of Joshua Timothy Warneke in Broome  2010. Now it must be remembered that no justice system is perfect. In the US, Gregory Bright spent 27 and a ½ years behind bars for second-degree murder of Eliot Porter in New Orleans in 1974. Even international law recognizes the injustice of a wrongful conviction.

The International Covenant on Civil and Political Rights states in Article 14(6) that:

“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.”

In Australia, state and territory governments may make ex gratia payments, either by their own choice or at the request by a party for payment. An ex gratia payment is money given as a concession, absent any legal compulsion. Ex gratia is latin for “out of kindness”. There is no legal obligation for the payment. The lack of any form of certainty to compensation when an innocent person is wrongfully subjected to the most severe restrictions, that our justice system literally uses against the worst offenders, is understandably concerning. It is clear that legislation that addresses compensation for wrongful convictions is clarified, to ensure that those who may have literally suffered for years are not further wronged. An honest but mistaken witness can contribute significantly to a wrongful conviction.

Honest but mistaken witnesses

Some witnesses tell the truth. Some unfortunately, do lie. But potentially even worse is the witness who thinks they are telling the truth but is wrong. Why? Because they believe they are telling the truth, they are often highly convincing. Our judiciary recognises this, and sometimes Judges have to caution juries about this. Judges can direct a jury, under Section 116(1) of the Evidence Act 1995 (NSW), with the following caution:

“A witness may be honest but that does not necessarily mean that the witness will give reliable evidence. Because the witness who gives evidence of identification honestly and sincerely believes that [his/her] evidence is correct, that evidence will usually be quite impressive, even persuasive. So here, even if you thought [name of witness] was entirely honest in the evidence that [he/she] gave, you must still approach the task of assessing the reliability of [his/her] evidence with special caution.

So, special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence may turn out to be unreliable. There have been some notorious cases over the years in which evidence of identification has been demonstrated to be wrong after innocent people have been convicted.”

The Judge may then go through a list of matters to be considered depending on the case. Matters involving what light the witness viewed the accused in? What opportunity did the witness have to view the accused? Did the witness focus on the accused or just see them casually and of no significance at the time? Was there any special reason for the witness to remember the accused?

In the end, it cannot be forgotten that human memory is fallible, and that no number of safeguards can change this. However, we also cannot forget that one measure of the effectiveness of a justice system is its capacity to protect the innocent.