‘Miscarriage of Justice in criminal justice results from the complexity of the system and conflicting pressures; No amount of reform will eradicate them’.


Miscarriage of justice can be defined in several ways. It refers to the conviction of a person, in a court of law, for a crime of which he or she is later proven innocent. A miscarriage of justice can also apply in the reverse manner, that of a guilty person being set free when there is overwhelming evidence, or later proof that he or she was actually guilty of the crime of which they were accused. The phrase is not solely restricted to crimes against persons or property, for it can also apply to civil cases where punishment consists largely of financial compensation. In short, a miscarriage of justice is any situation where an individual is somehow incarcerated, executed or punished due to the error of the legal system.

Now we can discuss about the possible miscarriages of justice by describing how the criminal justice system works in the investigation and prosecution of crime.

Criminal offences

In any criminal offence there are two elements- the physical and the psychological.

For someone to be successfully prosecuted for committing a crime there must have been a completed physical act. This act forms the basis of the criminal offence. For example, goods were taken without payment, or someone was shot, stabbed or poisoned. No one can be convicted of just having ‘bad thoughts’. Sometimes a person may be charged with an attempted crime, but even here there must be physical proof the person did something to prepare for the crime.

The first task of any investigation is to determine whether or not a crime has been committed. The competing rights of the victim and the accused are often spoken about, but even this may prejudge things. There cannot really be talk of a victim of a crime at all until it has been determined that some offence has been committed.

The presumption of innocence

A basic principle of law is that everyone is presumed to be innocent unless and until any criminality can be proved beyond reasonable doubt. This is important, because it means that people do not have to prove their innocence. The State, through the prosecutor, has to prove their guilt. If there is reasonable doubt as to the guilt of the accused it means that the prosecution cannot succeed. It is for this reason that many people undoubtedly do not get convicted for things that they have done. Rightly or wrongly, the view which the common law system takes is that whenever there is reasonable doubt, it would be unfair to convict a person. It is said that it is better to allow an otherwise guilty person to go free than to run the risk of convicting an innocent one.

An acquittal

Once someone enters the criminal justice system as an accused, the end result is usually a verdict of either ‘guilty’ or ‘not guilty’ after some form of hearing. If the verdict is ‘not guilty’, the accused will be acquitted by the court and cannot be recharged with the same or a similar offence that arises from the same circumstances, even if fresh evidence later comes to light. However, an acquittal does not mean that the person has been proved innocent. It means that the person has not been proved guilty and therefore retains the presumption of innocence. Bear in mind though that by the time an unsuccessful prosecution has finished, an accused may well have lost their job, their marriage and their self-respect.


There are important differences between civil and criminal cases. In a civil case the action is between individuals, companies or public entities. The remedy being sought is usually some form of court order or compensation. This area is usually referred to as private rights.

In a criminal case the action is between the state on the one hand and an individual or group on the other. The remedy being sought is usually called a ‘punishment’ for having infringed some law and the duty which it imposes. These duties apply automatically to all citizens. For this reason, it is important that they are clear and well understood. Equality before the law means that rich and poor alike are required not to steal or engage in criminal damage or injury to others.

The public prosecutor

There has a designated official to enforce the law on their behalf. They may be called public prosecutors or crown prosecutors. There is an office of the Director of Public Prosecutions with a Director of Public Prosecutions (DPP) as the head of it. Responsibility for prosecutorial decisions, however, rests with the Attorney General by reason of the power conferred by the Act governing the office of the DPP. The Attorney General in turn is accountable to Parliament and ultimately to the public

The Office of the DPP is a publicly funded department that is independent of the police and the government. Whereas the police usually prosecute minor offences in the Magistrates or Local Court, the Office of the DPP prosecutes the more serious offences, such as murder and serious assaults.

The victim’s family may pressure the police to bring charges against an alleged perpetrator. The police, who may have had a good deal of contact with the family, may find it hard to tell them that the evidence is not sufficient to support charges being laid or pursued. Rather than upset or anger the family by telling them this, the police may feel that the matter should be put to the DPP’s office to let them make that decision.

Defense counsel

‘Defense counsel’ is the term used for the lawyer who is representing the accused person in court. It is their role to test the evidence brought by the prosecution. They might do this by calling witnesses (expert or non-expert or both) to present evidence, or they may do it only by cross-examination of the prosecution witnesses to explore any doubt, error, prejudice or dishonesty of the witness. For expert witnesses, this may be about the extent of their training, knowledge and expertise in the tests conducted, the interpretation of such tests as were done, or why other or further tests were not done. The examination might probe the integrity of the exhibits and the chain-of-custody of the items that have become exhibits in the case.

Plea bargaining

Plea bargaining is an important part of the criminal justice system and is widely used to minimize delays in the handling of cases in the courts. Normally, where it is alleged that a person has committed a crime, the prosecution and defense counsel will exchange views about the most appropriate charges. It is the responsibility of the prosecution to lay charges or continue with prosecutions only where they have ‘reasonable prospects of successes. In these discussions, the defense lawyers will, no doubt, argue that the evidence is weak, and that lesser charges or perhaps none at all might be more appropriate.

Committal proceedings

Once the prosecution decides to go to trial, they face the first public check in the prosecution process which is the preliminary or committal hearing. This hearing is held to review the evidence against the accused and to satisfy a magistrate that there is a sufficient case to go for trial. Sometimes committal proceedings are handled in written form and involve an exchange of the relevant statements and reports.

The Jury Trial and the Adversarial System

There is an adversarial system which means that each side puts its version of events to a jury by presenting witnesses and taking them through their evidence by asking questions. The witness’s testimony is then ‘tested’ by the other side through cross-examination. It is the role of the jury, after hearing the evidence, to determine what the facts are. The judge acts like an umpire to ensure that the two sides play by the rules.

In contrast, the legal system is an inquisitorial system. They have an investigating magistrate and the judges and magistrates take a far more active part in the investigations and the proceedings in court. The judges are entitled to engage actively in asking questions and in seeking the truth of what happened. Some argue that this system works better.

The Jury Trial

If a magistrate commits someone for trial for a serious offence, it will be heard in a higher court. It will be either the District Court or the Supreme Court, depending upon the seriousness of the offence. Some financial assistance, or legal aid, is normally provided to those unable to afford legal representation, especially on more serious charges. Indeed it is now the law that if a person is unable to pay for their legal representation on serious criminal charges and it will not pay for their defense, then the prosecution cannot proceed.Normally, serious criminal offences are heard in front of a jury. One of the early tasks in a trial therefore is to empanel the jury which will be selected from names on the electoral role. Anyone related to the accused or any of the witnesses is excluded, as usually are those with more extreme social or political views. The experience is that most ordinary people appreciate the seriousness and importance of the task. The legal system takes the view that people are ultimately to be tried by their peers being ordinary people just like them. It has resisted the idea of specialist juries.


The normal role of a witness is to give evidence in court about what has been experienced directly. They are not allowed to give evidence about what they have been told by others, nor about their deductions as to what their experiences might mean. The jury has to assess whether the witnesses are truthful and correct.

Expert witnesses

Like ordinary witnesses, expert witnesses give evidence about what they have seen, as in the case of a pathologist who gives evidence on the observations at an autopsy. However, the expert witness is the only type of witness who is allowed to give an opinion. This is done to assist the jury in their interpretation of the evidence. The expert can say that if there are red stains in a tissue section then that can be understood to mean that there was bruising on the victim. The jury is free to accept or reject the expert opinion, and not infrequently, experts will be called to contradict each other on key points.

Admissibility and relevance of evidence

One of the most important tasks for the judge in the adversarial system is to determine the admissibility or inadmissibility of evidence. The judge must also accept that the evidence is not unfairly prejudicial. The rules of admissibility of evidence are some of the most complex and technical in all of the criminal law.

The voir dire

Sometimes the lawyers for each side want to have lengthy arguments about the admissibility or otherwise of certain evidence, or whether a particular witness is an expert or not. When they get to the point where that evidence is about to be put before the court, the opposing lawyer will tell the judge that there is a matter to be discussed “in the absence of the jury”. The jury will then be sent out of the courtroom while the judge hears the arguments from each side. When the matter is resolved, the jury is brought back into the court and the trial then continues with or without that evidence, depending upon how the judge ruled on it. This type of hearing, with the jury absent, is often called ‘a trial within a trial’ or voir dire, which is from the French words ‘to see’ and ‘to say’.

Trial procedures

At the start of the trial, the prosecution and defense lawyers make opening statements, outlining the case and the evidence they intend to put before the court. This is to give the jury an overview of what is to come. They must keep to things that they will subsequently put forward in evidence. The prosecution then brings its witnesses to give evidence-in-chief. This means the prosecution, via questioning, takes the witness through the written statements they made and signed before the trial. These statements have been made available to the other side. After this, the defense will bring forward their witnesses who will give their evidence in chief for the defense, and then be cross examined by the prosecutor.After a witness has given their evidence-in-chief, counsel for the other side will then cross-examine. This is the most skilful and unpredictable part of all legal proceedings. The legal advisers for each side will have a fair idea of what their own witnesses will be saying, because they questioned the witnesses while drawing up their statements. Skilful cross-examiners must be extremely knowledgeable about the subject matter and able to think on their feet. Those who are untruthful will have much more to be nervous about when facing the skilled advocate.

In a trial, the defendant can call evidence on their behalf if they wish. In the conduct of their defense, there are three possible courses of action. First, they can give sworn evidence and be cross-examined by the prosecutor. Second, they have the right to make an unsworn statement to the court, and this is not subject to cross-examination. Third, they can choose to remain silent, and the jury is not allowed to draw any adverse conclusions from this.

The judge’s summing up

After all the evidence is given, the prosecution and the defense lawyers have an opportunity to sum up their cases to the jury. Following these, the judge gives a summing up. This is a very important part of the trial. The jury might be trying to discern what the judge’s views are. The skilful judge will always be careful not to fall into that trap, as the jury must make up its own mind.


If the accused is found guilty then the question of an appeal will arise. The prosecution might appeal on sentence if they consider it to be woefully inadequate, but most appeals are made by the defense lawyer after conviction.  To appeal successfully, the lawyer must argue that the legal principles governing the evidence and procedures were not properly applied. A person can’t appeal just because they are unhappy about the verdict. Possible reasons for an appeal might be that admissible evidence was excluded, or that inadmissible evidence was allowed in. The appeal might claim that the judge acted unfairly in the closing remarks to the jury, or that the judge incorrectly advised the jury of the relevant legal principles. Appeal courts are always mindful that the jury was able to make their own assessment of the witnesses and arrived at their conclusion beyond reasonable doubt.

Miscarriages of Justice

People frequently ask how there could possibly be miscarriages of justice if a person can be tried, found guilty and then have some two levels of appeal after that. The simple answer is that there are many issues which, if not corrected at the trial, cannot be picked up on the appeal. The appeal courts will not see any witnesses; they work only from the transcripts of the trial and the arguments which counsel make in relation to them. They generally are concerned with errors on the part of the judge or jury, and whether all the legal requirements have been satisfied. Appeal courts are not there to reinvestigate the case. They cannot determine that a witness has been untruthful or mistaken. They will not know about any missing links that were not presented at the trial. Concerns like these escape detection in the course of the ordinary appeal process. The Keogh case is a classic example of this sort of dilemma.

So while the appellate system has a job to do, it has become increasingly apparent that it is not up to the task of revealing all the inadequacies which might take place during the modern trial process. This is particularly so where the testimony of expert witnesses has been crucial in bringing a conviction, as seen in the high profile cases mentioned earlier of Lindy Chamberlain, the Birmingham Six and Guildford Four, and in the Porter case in the United States. Porter had spent some seventeen years in prison in Illinois and had come within two days of being executed when his conviction for murder was overturned. It was a class project by journalism students which led to his case being re-examined.

To tackle the inadequacies in the process a mechanism is required that will allow the role of judges, prosecutors, defense counsel, investigators and the witnesses of a trial to be more fully investigated. In the United Kingdom there is a Criminal Cases Review Commission (CCRC) which does just that. It investigates cases of alleged miscarriages of justice and refers them back to the Court of Appeal for reconsideration if required. Miscarriages of justice are not as uncommon as one might like to think – in the first year or two some 4000 applications were made to the CCRC. The value and necessity of such a commission can be seen from the fact that of the first 94 cases so referred, 64 were determined to be miscarriages of justice. In some, information had subsequently emerged about the unreliability of witnesses. In others, it seemed that the police had either been untruthful or dishonest. Some of the cases were up to 50 years old and in four of them, those convicted had been hanged. We will discuss the role and function of the CCRC in more detail later when we explore how miscarriages of justice in South Australia might be dealt with.

Necessary Reform to Prevent and Recognize Miscarriages of Justice

The prevention of the miscarriage of justice is very hard and tough task. Without changing the moral strength of all the supreme persons who have the powers, it can not be possible completely. But the followings can help to control this-


The carriage of justice in criminal justice is the very complex process in every country due to the political and bureaucratic problems. Most of the cases are interfered by the millionaire persons or political leaders or even by the foreign leaders.

For these reason, the judges can not be furthermore honest with the fear of fired or suspended from his or her job as a judge. The persons who interfered in the cases can not be dominated by any one because of the existence of heavy corruption. So, the criminals do not be feared to make crime.

Thus without changing the moral of all if them it is very hard to resolve this problem. So we should try to be honest and try to correct the persons who make the wrong.