It is a fundamental principle of criminal law that a person should not be criminalised unless they have the capacity and a fair opportunity to comply with the law. Recognising that children, particularly younger ones, undergo rapidly evolving neurodevelopmental processes during which their criminal capacity remains underdeveloped, many jurisdictions have adopted a minimum age of criminal responsibility. Furthermore, the presumption of doli incapax is available in some jurisdictions to protect children who fail to understand the wrongfulness of their acts from being criminalised. While both protections are useful, this article argues that they are insufficient in fully protecting unblameworthy children from criminalisation. It is proposed that, from both neuroscientific and criminal law perspectives, a child immaturity defence should be introduced to protect children who (i) lack the capacity to appreciate the nature or consequences of their criminal conduct or (ii) are unable to exercise adequate control over that conduct. The potential challenges in enacting the defence will also be examined.
This paper challenges the binary between childhood victimhood and offending by examining the overlapping and often contradictory roles children occupy within systems of law, social control, and public discourse. Focusing on Spain and Sweden, the paper examines the non-punishment principle and gaps in domestic implementation that leave some children, particularly unaccompanied migrant boys, vulnerable to criminalisation. Adopting a humanitarian lens, it situates institutional responses within broader concerns for children's dignity, rights, and protection. The analysis highlights how legislative frameworks and prosecutorial practices shape victim recognition and reinforce barriers for children whose experiences fall outside dominant narratives.
Maternal crimes against children have been, and continue to be, the subject of fascination, fear and disbelief. This article critically examines the role of the media and the law in reflecting and reinforcing normative expectations of femininity and motherhood by interrogating the media reporting on Kathleen Folbigg's case from 2001-2023. Existing theoretical accounts of the conceptualisation of female deviance, as well as the ways the media and legal systems intersect and influence one another to create dual sites where gender inequality is reproduced, are first examined. Against this background, the news reporting over the more than twenty-year span of Kathleen Folbigg's case, from her trial in 2003 through to the aftermath of her pardon in 2023, serves as a case study to consider whether any changes in the operation of dominant norms can be identified. This article critically examines the use of the 'mother frame' as a persuasive narrative frame that, despite changing legal outcomes, remains firmly in place. While Folbigg was able to be repositioned within this frame, even positive media coverage acted to reinforce the gendered norms and expectations attached to female defendants.
The wrongful conviction of Kathleen Folbigg, who spent over 20 years in custody, is unarguably one of Australia's worst, acknowledged, miscarriages of justice. This special issue considers the implications of the Folbigg 'case', including opportunities missed to correct the flawed convictions, the continuing role of gendered ideologies that supported and maintained her convictions, and institutional failures in the judicial and executive branches of government. In addition to outlining some of the common themes and concerns of the authors who have contributed to this special issue, this introduction provides necessarily brief overview of the timeline and procedural history of the case. The timeline draws attention to comparable cases from other jurisdictions where mothers were wrongfully convicted of harming their children, but where errors were identified and corrected far more quickly. The introduction concludes by reiterating the need for reforms to provide independent review mechanisms to identify and correct errors in the Australian criminal legal system.
In this article we locate the recent emergence of 'affirmative consent' as the gold standard for rape law reform in the longer history of statutory amendments directed at modernising the criminal law meaning of sexual consent. We show that affirmative consent reforms are only the latest in a long line of attempts to improve the definitions contained in criminal law statute books, dating back to the 1970s. We juxtapose this preoccupation, and the volume of statutory reform it has produced, with the evidence that complainants in rape trials are still routinely confronted with the assertion that they consented, and that rape myths are regularly engaged to this end. Recognising that there are multiple audiences for rape law reform, both inside and outside the courtroom, we nonetheless caution that continued faith in consent definition-focused law reform risks further disappointment for victim-survivors of sexual violence who turn to the criminal courts for redress. We argue that other aspects of the laws governing rape trials, including the capacious concept of 'relevant' evidence, must come under scrutiny. Finally, we suggest that 50 years of consent law refinement prompt re-consideration of the relationship between prolific criminal law-making and over-criminalisation.
This paper reports on pilot data from online surveys among 97 passengers of taxi and rideshare services in Victoria, Australia about their experiences of sexual harassment and interpersonal violence. Survey findings reveal that 58% of the sample had experienced harassment or interpersonal violence in either a taxi or rideshare service; 47% reported that they had at least one harmful experience in a taxi and 30% in a rideshare service. The most common behaviours reportedly experienced were a driver or other passenger staring or leering, unwanted attempts to flirt, unwanted comments about their physical appearance, offensive sexual comments, unwanted attempts to establish a romantic or sexual relationship, offensive or degrading comments about gender, and unwanted sexual requests. Overall, women were more likely than men to report harmful experiences. Engagement in reporting mechanisms was low, but participant’s likelihood of reporting to taxi and rideshare companies and to the police in future remained high. This is the first study of its kind in Australia and provides important insights into the nature and impacts of these experiences. The authors call for further research to better understand safety and interpersonal violence in the taxi and rideshare industry at the national and international level.
Prone restraint is when a person is held face down on the ground or another surface. It is a restraint technique used by law enforcement officers and, in some cases, it is a contributing factor to deaths in custody. This paper analyses 42 publicly available coroners' reports where prone restraint was implicated in a death in custody in Australia. From these reports, we collected data on the characteristics of deceased persons, the circumstances of the restraint, other force used, findings by coroners about the role of the restraint in causing death, and recommendations made. Our most significant finding was that Aboriginal and/or Torres Strait Islander peoples were more likely to be held in the prone restraint position for longer periods of time than non-Indigenous people prior to their death. Considering the underreporting of Aboriginal and/or Torres Strait Islander status in coronial reports, this finding could be more significant than what our results depict.
Domestic Violence Evidence-in-Chief represents a significant shift in evidentiary practice in Domestic and Family Violence cases. These pre-recorded statements, typically captured shortly after an incident, offer an immediate and seemingly authentic account of events. However, concerns have been raised about the potential introduction of extra-legal influences through elements visible or audible in the recordings. One such element is emotionality, as complainants' emotional displays in the footage may impact fact-finders' credibility assessments and legal decision-making. Research on the Emotional Victim Effect suggests that visibly distressed victims of sexual assault tend to be perceived as more credible than emotionally neutral ones. However, there is limited understanding of whether this effect also applies to Domestic Violence Evidence-in-Chief. Moreover, it has been established through experimental research in other contexts that jurors' own emotional states influence how they evaluate evidence and make judgements. This article highlights the risk of emotional bias in pre-recorded evidence and calls for further empirical investigation. The aim is to inform the development of evidence-based practices to promote rational fact-finding in Domestic and Family Violence prosecutions.
Growing remand populations continue to place significant resource and workload pressures on police, courts and corrections in Australian and other jurisdictions. However, the factors impacting the issuance of bail and bail compliance are not well understood. This exploratory study of two court jurisdictions in Queensland, Australia using semi-structured interviews with legal and community stakeholders and people on bail (bailees), and police court briefs. Results indicate bail conditions are influenced by judicial officers' background and community expectations, and reporting conditions are the most frequent condition given to bailees, but it is the most difficult condition to comply with. Bailees often agree to bail conditions without fully understanding the impacts of these conditions on their social and working life, impacting long-term sustainability of compliance.
This article critically reviews the reception and treatment of the diary evidence in the case against Kathleen Folbigg. It explains why the diary evidence was always of limited probative value, and how the manner in which it was presented by prosecutors and treated by judges - as an admission of guilt - was biased in ways that made the trial and many appeals substantially unfair. Through detailed examination of judicial representations of the diary evidence we can observe how many members of the Supreme Court of New South Wales were apparently unable to recognise fundamental problems with the ways the diary evidence was interpreted, represented and irrationally combined with 'other' evidence. The article explains why the case against Folbigg was misunderstood from the very beginning and was always much weaker than suggested by prosecutors and judges. In the process it problematises recourse to 'fresh' evidence, conventional explanations for wrongful convictions, and opens the epistemic competence of our legal institutions to question.
This article unveils the findings of an exploratory study into legal practitioners' perceptions of the effectiveness of the second or subsequent appeal introduced in Victoria in 2019 as a new post-conviction review mechanism. Through qualitative interviews with lawyers with direct experience of the second or subsequent appeal processes, we gathered important insights into not only the efficacy of these provisions, but the broader capacity of the Victorian criminal justice system to correct its own errors. Our findings reveal that the reforms were viewed as a marked improvement on the opacity of the petition for mercy, but also highlight systemic barriers that remain for convicted persons seeking to challenge their conviction. There also emerges a perhaps contradictory overall level of trust in the legal system's capacity to prevent errors in the first place.
The criminal justice system unavoidably carries a risk of error. It expects innocent defendants to be convicted. It follows that the state has a duty to identify and correct the errors. This duty is balanced against the societal benefits of the finality of conviction. However, Australian criminal justice has the balance wrong. The regular conviction appeal limits the correction of factual errors, and post-appeal mechanisms are excessively restrictive. The obstacles that wrongfully convicted defendants face are virtually insurmountable. The state should do more for the wrongfully convicted. Australia should follow comparable jurisdictions and establish a national CCRC with the powers to investigate potential wrongful convictions and refer them back for a subsequent appeal. Such a body may cost little more than the expensive ad hoc inquiries that Australia already holds with increasing regularity. The reduction in finality will be very slight; the number of referred appeals would be miniscule compared with the hundreds of thousands of convictions that occur annually. However, an Australian CCRC would constitute a significant improvement in criminal justice.
The impetus for the establishment of special commissions of inquiry and royal commissions is symptomatic of injustices that a government deems require independent and impartial scrutiny. Building an evidence base of narratives of injustice can be a key driver in generating parliamentary recognition of such injustices. This article documents and analyses the community and parliamentary impetus for the establishment of the New South Wales Special Commission of Inquiry into LGBTIQ hate crimes 1970-2010 (SCOI) and its relationship to police accountability. The article analyses the SCOI's role in reconciling past wrongs through future actions in six key areas: (1) evidence-gathering and investigation; (2) flexibility in adapting to diverse subject matters and procedural needs; (3) public engagement; (4) the creation of authoritative and transparent records of systemic failures of historical injustice; (5) the promotion of systematic reforms; and (6) restoration of public trust through transparent processes and validation of victim experiences. In doing so, the article recognises the contribution of the SCOI, and of LGBTIQ organisations, individuals and their allies in building the narrative evidence of injustice for LGBTIQ victims of hate crime, and the growing role of commissions in engaging victims in truth-telling.
This article analyses the role of international human rights complaints mechanisms in the police accountability landscape in Australia, focusing on individual complaints to the United Nations Human Rights Committee (HRC) under the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. We do so through a case study of Horvath v Australia, which involved 'a disgraceful and outrageous display of police force' against Corinna Horvath in 1996 (State of Victoria v Horvath [2002] VSCA 177, 9-10 [15]). The HRC found that Australia had violated Horvath's rights under article 2(3) of the ICCPR to an 'effective remedy' for substantive rights violations, given the difficulties she faced in accessing compensation through domestic mechanisms. Horvath's complaint was successful in spurring individual compensation and a formal apology, as well as shaping legislative reforms to civil liability for police harms. However, given the limits of these reforms and the ongoing failures of Victoria's police complaints and disciplinary processes, Australia remains in breach of its human rights obligations. Ultimately, our analysis demonstrates how the potential of human rights complaints for systemic change relies on mobilization by civil society, in the face of enduring political inertia.
This paper considers a body of evidence concerning Kathleen Folbigg - specifically, about her chidhood history and possible statements she made about that - that was excluded at the trial that led to her convictions, but may nevertheless have contributed to her convictions. The public record, while slim, reveals the trial prosecutor's unsuccessful attempts to put this evidence before Folbigg's jury, the various ways that some of the evidence could and did nevertheless reach some of her jurors, and the Court of Criminal Appeal's narrow consideration of that irregularity. The paper concludes by considering why these matters were not relied upon in more recent advocacy on Folbigg's behalf.
A focus on recidivism in drug court evaluation can lead to the presumption that if a program does not significantly reduce recidivism, there is no reason for it to continue. However, this view obscures the many other contributions drug courts can make to improving health, social, and criminal justice outcomes. Adding qualitative data to the predominantly quantitative literature on drug court outcomes, we draw on the evaluation of the pilot Drug and Alcohol Sentencing List in the Australian Capital Territory, to present participant and practitioner perspectives on success. In doing so, we argue that clients do not necessarily need to 'pass' a drug court program to derive benefits. We suggest that evaluations of drug courts should go beyond recidivism measures, to include broader indicators of well-being and social integration, such as physical and mental health, employment, education, and family and community relationships.
This study examines the potential role of artificial intelligence (AI) in addressing sentencing inconsistencies within the legal system. While AI has shown promise in a range of legal tasks, its application in sentencing remains controversial due to concerns over transparency, bias, and accountability. A key challenge lies in the complex and opaque manner in which AI systems weigh all sentencing elements simultaneously, making it difficult to assess or challenge their conclusions. In response, this study advocates for the development of separate AI systems, each dedicated to assessing an individual sentencing factor. This modular approach reduces the complexity of the AI contribution, enabling more transparent and verifiable assessment. Rather than seeking to replace judicial discretion, this AI-assisted framework supports judges in systematically reviewing their decisions. To illustrate the practical application of this framework, the study uses Indonesia's experimental sentencing guidelines for corruption offences as a case study.
