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Incorrect Identification Leads to Wrongful Conviction

by Zeb Holmes

A recent case in Western Australia has highlighted the consequences for innocent people of police incorrectly identifying suspects.

The case involved a 24-year-old Indigenous man who was arrested thirteen years ago and charged with causing grievous bodily harm.

Police mistakenly identified the man as a 17-year old with the same name, and prosecuted him through the state’s Children’s Court.

The 24-year old man was ultimately found guilty, but the conviction was incorrectly recorded against the 17-year old’s name.

The error was only discovered last week, when the older man was arrested for a fresh arrest and his fingerprints matched the younger man’s records.

Police say mistaken identity is the most common in northern Australia, where Indigenous people often assume new names for cultural reasons.

They assert that cases of mistaken identities are likely to be less common now due to increasing use of DNA databases.

Scope of misidentification

The case raises concerns that there are many people walking around today with convictions on their records which do not relate to them.

Genevieve Cleary, from the WA Criminal Lawyers’ Association, fears that that the problem is far more prevalent than many might think.

“I suspect it’s not just the Indigenous population”, she states.

“I suspect it’s any population where English is a second language but also where the generally white police officer who’s arresting them is not familiar with their culture, and with nomenclature in their culture”.

She believes language barriers in Indigenous and other minority communities and a lack of understanding of the criminal justice system make it harder to identify and correct such wrongful convictions.

“Unfortunately the court process, particularly in a busy magistrates court, can be so rushed, so difficult to hear what’s going on, that often people just say yes when a name is called,” she says.

“And the person doesn’t actually know to put their hand up and say ‘hang on a minute, someone’s made a mistake’ and it just rolls up from there and ultimately it ends up on their record.”

Effects of a conviction

A wrongful conviction can harm many areas of the person’s life.

Those who are applying for government jobs, or positions in the health, law or childcare industries, will almost always be subjected to a police check. The discovery of a conviction – albeit one which is in error – may impact on the applicant’s ability to secure an interview.

Many countries also require disclosure of a conviction record before issuing a visa or allowing entry. As part of the visa process for the US and UK, for instance, an applicant is required to declare criminal convictions.

A conviction can also act as an aggravating feature of any future offence.

Compensation for wrongful convictions

Individuals wrongfully convicted do not have a statutory right to compensation in any Australian jurisdiction, except the Australian Capital Territory (ACT).

Under section 23 of the Human Rights Act 2004 (ACT), an individual who is wrongfully convicted of a criminal offence may seek compensation if they have:

  • suffered punishment because of the conviction, and
  • had the conviction reversed (or been pardoned) on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice.

Those who are wrongly convicted may also seek compensation through a civil claim for false imprisonment or malicious prosecution.

Author

Zeb Holmes

Zeb Holmes is a lawyer with a passion for social justice who advocates criminal law reform, and a member of the content team at Sydney Criminal Lawyers®.

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