A Miscarriage of Justice Affects All of Us

In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same.

                                                             Albert Einstein

A failure in any one of the fundamental principles upon which the criminal justice system is build can result in an injustice with serious if not catastrophic consequences.  Not just for the individual subjected to the miscarriage of justice, but for all of us. Especially when you factor in the time and cost involved not just in defending yourself against the initial allegations, but subsequently seeking to establish that you have fallen victim to a miscarriage of justice.

Any instance when the fundamental principles of justice are not upheld represents a risk to all of society.  Each failure in the system established to presume us innocent until proven guilty and ensure that the ways of proving guilt are rigorous, transparent and justifiable represents a potential future failing which may affect another individual directly and/or dilute the standards and inherent checks and balances rendering the system that applies to each and every one of us more susceptible to failings.

There is no True Justice in a system designed to draw conclusions on our guilt or innocence being subject to failings.

The appellate courts provide an avenue to raise and seek redress for miscarriages of justice but this option is subject to serious limitations including time and cost – both of which may prove to be an insurmountable barrier for the accused/wrongfully convicted. The time and cost implications are just amplified if they  are incarcerated serving the sentence while seeking to establish their wrongful conviction.

When an altercation between two commercial fishermen on the Seymour River in North Queensland in April 2012 resulted in one of them sustaining injuries serious enough to amount to grievous bodily harm and both of them providing differing accounts of what transpired the focus of the court during trial rested on determining who was the aggressor.  In doing so, little attention was paid to the amount of force used in response and whether or not it was likely to cause grievous bodily harm.

This is a critical factor according to Criminal law and paying it insufficient attention ultimately represented a failing in the rigour expected of a system seeking to uphold our innocence unless sufficient proof exists to suggest otherwise beyond reasonable doubt.

In this case, the differing accounts of the two fisherman raised the possibility of two scenarios: one where the fisherman suffering grievous bodily harm was wrongly attacked by the other fisherman or alternatively where the injured fisherman was the aggressor and in striking back the other fisherman inflicted the injuries through self-defence.

The Court of Appeal found that a miscarriage of justice had occurred because the jury could not have been satisfied beyond reasonable doubt of the accused fisherman’s guilt based solely on the injured fisherman’s account offered by the prosecution when they had not been directed to consider the degree of force used and the possibility of the force being applied in self-defence.

In this case, the conviction was set aside and a retrial was ordered.

This case highlights the profound consequences that can arise from a failure in any part of the criminal justice system. In this instance, a failure to sufficiently direct the jury with respect to their considerations resulted in a trial and conviction two years in the making at significant personal and societal expense being set aside and ordered for retrial. The personal and monetary impost on the two individuals involved would no doubt be significant as are the monetary costs involved in bringing the retrial.

On one side of the scale, this is True Justice in action – having avenues available to raise and seek redress for wrongs. On the alternative side of the scale, the original failure of the system that enabled the miscarriage of justice to occur represents a real issue: it highlights the vulnerability of the criminal justice system to which any one of use may fall prey and it also highlights two often insurmountable barriers to seeking and achieving justice: time and cost.

It is in everyone’s interests to care about the systems of law which we are all subject to. It is in everyone’s interests that they are fair, robust, transparent, efficient and effective.

True Justice doesn’t just happen, we must all take an interest in the systems and procedures making and enforcing the law.

Be Engaged. Be Informed. Be Curious.

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