Return of the wrongly convicted: the test for post-conviction executive references in Australia

Abstract

The power of the executive to refer cases involving criminal conviction back to an appellate court is a mechanism for guarding against miscarriages of justice and regulating the inherent fallibility of the criminal justice system. These cases typically come before the executive by way of a petition that claims a person has been wrongfully convicted. In Australia, however, there are few guidelines and little information as to the criteria and standards by which the executive decides whether to refer a petitioned case. The test the petitioner must meet is not clear. This chapter therefore has two purposes. The first is to examine the types of petitions most likely to be referred to the appellate court by the executive. These cases are shown to fall into particular categories. The second is to argue that, from these categories, inferences may be drawn about the test the executive uses in deciding whether to refer a petition. These inferences follow from the common principles and links between the cases in each category. The chapter identifies the test the petition should meet to have optimal chance of referral.