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17 Flinders L.J. 203 (2015)
The Wrongful Conviction of Indigenous People in Australia and Canada

handle is hein.journals/flinlj17 and id is 220 raw text is: (2015) 17 Flinders Law Journal THE WRONGFUL CONVICTION OF INDIGENOUS PEOPLE IN AUSTRALIA AND CANADA KENT ROACHt Drawing on Rachel Dioso-Villa's repository of wrongful convictions published in this issue, this article examines known cases of wrongful convictions of Indigenous persons in Australia and Canada. It 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. This last factor may help explain why police and prosecutors have prosecuted weak cases later revealed to be wrongful convictions. Such stereotypes may also affect determinations of credibility by juries and judges. That said, Indigenous victims of wrongful convictions have at times benefited from creative remedies. For example, the High Court finessed its restrictions on Prichard Wilson Chair in Law and Public Policy, University of Toronto. I acknowledge the generous financial assistance of the Pierre Trudeau Foundation. Thanks to Amanda Carling, Emma Cunliffe, Robert Moles, Jonathan Rudin and Bibi Sangha and those who attended a faculty symposium at the Peter A Allard School of Law at the University of British Columbia and an anonymous referee for comments on an earlier draft of this article. Email: kent.roach@utoronto.ca.

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