Why We Don’t See Race: How Australia Has Overlooked Race as an Influence on Miscarriages of Justice

• Author: Greg Stratton,Alyssa Sigamoney
• DOI: http://doi.org/10.1177/2153368720922294
• Published date: 01 April 2023
• Date: 01 April 2023
• Subject Matter: Research Note

Research Note

Why We Don’t See Race:

How Australia Has Overlooked

Race as an Influence on

Miscarriages of Justice

Greg Stratton

1

and Alyssa Sigamoney

1

Abstract

While criminal justice systems are increasingly prepared to identify and overturn

wrongful convictions, the focus of limiting errors has centered upon commonly

accepted “causal factors” of wrongful conviction. Importantly, there has been limited

work that has explored the question of who is most vulnerable to fall victim to this

error. We explore three landmark case studies highlighting wrongful convictions in

Australia where race, racialized policing, or racism were crucial yet unresolved issues

leading to an erroneous conviction. These cases and the absence of resolutions of

these racialized issues in these convictions typify the inadequacies of Australian

approaches to wrongful conviction. We argue that to achieve justice in Australia we

must not be limited to the causal factors that have come to define American inno-

cence and should support greater acknowledgment of how race and ethnicity influ-

ence wrongful conviction.

Keywords

wrongful conviction, innocence, Indigenous Australia, racism

The continual overrepresentation of Indigenous Australians in the criminal justice

system represents a key site of injustice and inequity within Australian society

(Cunneen, 2001; Schwartz & Cunneen, 2009; Weatherburn, 2014; Weatherburn et al.,

2003). Explanations and critique of Indigenous overrepresentation have raised insti-

tutional racism (Cuneen, 2006; Cunneen & Tauri, 2016), racialized policing

1

Royal Melbourne Institute of Technology, Victoria, Australia

Corresponding Author:

Greg Stratton, Royal Melbourne Institute of Technology, GPO Box 2476, Melbourne, Victoria 3001,

Australia.

Email: gregory.stratton@rmit.edu.au

Race and Justice

ªThe Author(s) 2020

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DOI: 10.1177/2153368720922294

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2023, Vol. 13(2) 256–271

(Cuneen, 2001), and the harms of colonization (Baldry et al., 2015; Blagg and

Anthony, 2019) as sources and causes of the injustices faced by Indigenous Aus-

tralians. Alongside the issue of Indigenous overrepresentation, Australia has experi-

enced similar problems with racial and ethnic minorities also overrepresented in court,

prison, and offending statistics (Coventry et al., 2015; Majavu, 2018; Shepherd &

Ilalio, 2016; Shepherd et al., 2018). The Indigenous, racial and ethnic over-

representation in the Australian criminal justice system highlights the marginalization

and vulnerability to injustices that racial minorities experience throughout the country

(Cuneen, 2006). While this marginalization has long been discussed in terms of

Australian policing, offending, sentencing, and prison outcomes, a vulnerability to

miscarriages of justice and wrongful conviction emerges (MacFarlane & Stratton,

2016).

By examining the wrongful convictions of Gene Gibson (Gibson v. The State of

Western Australia, 2017), Farah Jama (Vincent, 2010), and JB (pseudonym; JB v. R

[No 2], 2016), this article explores how race has been an influential factor in gross

errors of justice in Australia. We question whether an individual’s status as an Indi-

genous Australian or their background from a racial minority highlights a vulner-

ability in potential wrongful convictions. We argue that examinations of wrongful

conviction should recognize race as more than a demographic factor tying similar

cases together. Instead, race should be presented as an influential element explaining

how people from racial minorities are more readily exposed to miscarriages of justice

because of a legal and criminal justice system that does not act neutrally toward issues

of race (Free & Ruesink, 2015). This work extends the link between race and wrongful

conviction that has also been identified in the Australian context (Dioso-Villa, 2015;

Roach 2015; Sangha et al., 2010). This research has highlighted that the Indigenous

ethnicity of an accused can be a precursor for differential treatment in the justice

system and subsequently a contributing factor to wrongful conviction in Australia

(Dioso-Villa, 2015; Roach, 2015). For these reasons, Indigenous Australians have a

heightened vulnerability to wrongful convictions due to marginalization and institu-

tional oversight within the criminal justice system (MacFarlane & Stratton, 2016;

Roach, 2015). While the link between race and vulnerability to wrongful conviction

exists, MacFarlane and Stratton (2016) argue there is a greater need to identify the

causes of wrongful conviction among marginalized people in Australian society. For

this reason, we advocate the inclusion of race as a causal factor contributing to

wrongful conviction in Australia.

This article extends upon critiques of wrongful conviction scholarship which

identify the problematic assumption that the solution to wrongful conviction rests in

institutional responses identifying causal factors of error (Leo, 2005). The casual

factor focus often fails to recognize that many of the concerns occur in the vacuum of

evidence, law, and procedure that govern the criminal justice system. This focus has

meant institutional responses to wrongful conviction have often overlooked addres-

sing critical sociocultural elements that contribute to error. The aim of this article is to

harness Australia’s history with wrongful conviction and explore its relationship with

race to “achieve a deeper understanding of the causes, patterns, characteristics, and

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Stratton and Sigamoney