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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