On 26 June 1990, Kelvin Condren was exonerated for the wilful murder of his live-in partner, Patricia Rose Carlton, after having served seven years in prison for a crime he did not commit. The main evidence against him was the confession he gave when under police custody for drunk and disorderly behaviour. Condren’s conviction was ultimately quashed after the Attorney-General of Queensland had the Queensland Court of Criminal Appeal consider fresh evidence in the case suggesting that the victim was seen alive while Condren was in police custody. On 6 February 1995, the Queensland government offered him A$400 000 as an ex gratia or ‘out of grace’ payment as compensation for his wrongful conviction. One year after Condren’s exoneration, on 10 August 1991 in Western Australia, Jeanie Angel was exonerated for the wilful murder of her neighbour after having served two years in prison for a crime that she did not commit. Angel allegedly made a confession to police; however, she claimed that during the interrogation she was hit over the head with a bottle before signing the written confession. Her conviction was quashed as unsafe and unsatisfactory after two other women who had been drinking with the deceased admitted that they hit her several times over the head with a stick and later hid the body in the bushes. In contrast to Kelvin Condren’s case, Jeanie Angel did not receive compensation for her wrongful conviction; instead the Attorney-General of Western Australia rejected her request for an ex gratia payment saying that ‘[a]n act of grace [ex gratia] payment is made only in the most exceptional circumstances, and this is not such a case.’
These examples raise questions about the application and adequacy of ex gratia payments as a means of compensating for the loss, harm or injury that wrongfully convicted persons endure due to their convictions and subsequent imprisonment. These payments are not awarded to all who have been pardoned or have had their convictions quashed, since there is no state or federal indemnity legislation in place that explicitly address the needs of those wrongfully convicted in Australia. In the absence of indemnity legislation for wrongful conviction, exonerees may seek recourse through specialised bills to compensate individuals, civil litigation against liable parties, or ex gratia ‘out of grace’ payments. Due to the difficulty and rarity of pursuing compensation through parliament and the courts, ex gratia is the most commonly utilised and viable option for individuals who seek redress for wrongful conviction and incarceration.
Over the past century, legal scholars have argued for the establishment of compensation statutes for wrongful conviction in common law countries around the world with some success; however, there are limited studies that argue for such laws within the Australian context or that have evaluated the adequacy of existing remedies to aid exonerees in their successful reintegration into society. This article attempts to fill this gap by examining the application of ex gratia payments as compensation for wrongful conviction and asking the questions: (1) Are ex gratia payments a suitable remedy for exonerees? (2) Does the state have an obligation to exonerees to provide redress for the injury or loss they experience from their imprisonment? (3) If ex gratia is not an adequate measure, why might this be the case? (4) What may Australia do to address the needs of the wrongfully convicted post-exoneration? Because the definition of a ‘wrongful conviction’ may encompass many situations, it is used in this article to refer to cases where individuals have been sentenced to a term of imprisonment and have had their sentences quashed on appeal; were acquitted at retrial; had their verdicts considered unsafe and their convictions vacated; or have received a pardon.
The article begins by outlining compensation remedies available to exonerees in Australia with a focus on ex gratia payments. I draw on my earlier work that examined the circumstances in which ex gratia payments were awarded and denied for wrongful conviction and provide a summary of these findings to identify key criticisms about the existing structure and application of ex gratia payments as a principal remedy for wrongful conviction in Australia. I then consider the role of the state in providing compensation for errors of justice as a moral and legal duty and question whether discretionary acts create unintended equity issues for exonerees who seek compensation. The article concludes with recommendations to improve the situation for the wrongfully convicted in Australia who wish to seek redress, namely the creation of comprehensive compensation legislation for wrongful conviction, extended post-appeal review, and the establishment of a review commission to investigate potential wrongful conviction cases.
II Compensation for Wrongful Conviction in Australia
Currently, wrongfully convicted individuals do not automatically receive compensation in Australia. In most Australian jurisdictions other than the Australian Capital Territory, these individuals do not have a common law or statutory right to compensation for their wrongful conviction or imprisonment. Australia is a signatory to the ICCPR that outlines compensation for the wrongfully convicted. However, Australia has yet to incorporate this as a right into domestic law and maintains the position that this provision gives rise to administrative procedures, rather than legal provisions. Article 14(6) of the ICCPR states:
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.
This compensation scheme has had varying degrees of success in its application. One criticism is that ‘miscarriage of justice’ in this context has been narrowly interpreted to include only those who have been exonerated as factually innocent, rather than innocent individuals who have had their convictions quashed because the verdict was considered unsafe on appeal. By limiting applicants’ eligibility to the factually innocent, this understanding of a miscarriage of justice may miss its intended purpose, which is to provide a legislated entitlement to compensation for individuals who have been convicted and imprisoned for crimes they did not commit. Therefore, those innocent individuals who have received pardons or who have had their convictions quashed, reversed, vacated or dismissed, must seek alternative avenues of redress such as seeking compensation through ex gratia schemes.
In the absence of federal, state or territory compensation legislation, a state may award ‘out of grace’ payments as ex gratia compensation without explanation and without setting precedent. These payments are generally made and calculated according to the actual damage or loss incurred from the act(s) or event(s) in question. States have awarded ex gratia payments in the past to classes of victims such as wrongfully convicted individuals as well as victims of natural disasters, although each case is considered independently on its own merit. The state has no legal obligation to award payments and the decision is highly discretionary and often rests in the hands of an executive power, such as an attorney-general, who may or may not reach a decision in consultation with others.
Currently, there are no guidelines to assist governors or attorneys-general in making decisions to award or deny ex gratia payments for wrongful conviction. There are, in some jurisdictions, principles that these executives may consider when administering ex gratia payments to persons who have ‘suffered a financial loss or other detriment directly as a result of the workings of [g]overnment,’ which would encompass those who seek compensation for wrongful conviction. Two such principles are to have applicants provide evidence of a clear and verifiable loss and provide evidence of fault or error by a state actor that is directly responsible for the loss. However, these principles are not formal, nor mandatory criteria to receive payments, since each case is considered on its own merits and payments are not guaranteed even when the applicant addresses all principles.
Another option for exonerees is to raise a civil suit against state actors who were instrumental in the wrongful conviction during the investigation or at trial. In cases with evidence of gross state misconduct, such as a coerced confession elicited during a police interrogation, fraudulent forensic evidence, or prosecutorial misfeasance, an exoneree may pursue civil litigation against individual police officers, a laboratory, or the prosecutors responsible for their false imprisonment. Successful tortious claims are rare, given the difficulty in demonstrating that the public officer acted with malice against the exoneree and that this resulted in his or her wrongful conviction and subsequent suffering. This is especially the case when a person may be wrongfully convicted without malice or ill intent. Moreover, not all exonerees have the legal and financial resources required to pursue tortious action and the time required to build the case to its final outcome may be too lengthy given the already acute losses experienced while imprisoned.
Exonerees may also seek compensation by drafting an individualised bill to pass through state legislature for direct compensation for injuries or loss experienced as a result of the wrongful conviction. This is the least pursued remedy since it requires legal support to draft the bill and political support to marshal a politician to lobby the bill in parliament. Success of such private bills may depend on the political climate of parliament at the time the bill is proposed and the clout or authority of the politician presenting the bill, rather than the merits of the bill itself. Given the legal, political, and financial requirements required to carry this out, it is unlikely that this is a viable option for most exonerees. There is also no guarantee that the bill will pass and the time it would take to secure funding may extend far beyond the point at which it is needed.