The Wrongful Conviction of Indigenous People in Australia and Canada

Abstract

This article finds that Indigenous people are over-represented among the wrongfully convicted in relation to their representation in the population in both Australia and Canada. At the same time, there are likely many undiscovered wrongful convictions of Indigenous persons especially when the over-representation of Indigenous men and women in prison is considered. A factor in this likely under-representation of Indigenous people among remedied wrongful convictions may be the incentives that accused, especially Indigenous women, face to plead guilty even if they are not guilty. This finding underlines some of the dangers of limiting wrongful convictions to cases of proven factual innocence and not including among the wrongfully convicted those who may have valid defences such as self-defence. The immediate causes of the wrongful convictions of Indigenous people examined in this article include false confessions, mistaken eyewitness identification, lying witnesses, lack of disclosure and forensic error. Underlying and deeper causes include disadvantages that Indigenous people suffer in the criminal justice system including language and translation difficulties, inadequate and insensitive defence representation, pressures to plead guilty and racist stereotypes that associate Aboriginal people with crime.

Keywords: Wrongful Convictions, Indigenous Persons, Australia, Canada, criminal justice