Can AI and other emerging technologies of this brave new world help prevent future Miscarriages of Justice?

Article by Daniel Lane BA. LL.B Senior Consultant at the AR SOAR: Blockchain Business Services.

Information on Miscarriages of Justice and why they Occur Miscarriages of justice have occurred across the world and have occurred countless times. Most of the time miscarriages of justice are a life-changing event for those who are wrongfully accused and/or convicted. In Australia, under the criminal legal system, a miscarriage of justice surrounds the concept of ‘wrongful conviction’. According to the recent ANZSOC paper, it is where there is a “proven innocence or for which there is considerable doubt as to the guilt of the convicted parties”.

It has been found that in Australia, 1% of cases tried in a year are falsely convicted. This results in approximately 330 cases across the country in both district and Supreme Court offences where potential miscarriages of justice have occurred. In recent times, Australia (particularly) New South Wales and Queensland have made steps in reforming the system and miscarriages.

The said states have implemented processes that allow people who have been convicted of serious offences to re-test their DNA. The process can be time-consuming and requires an application to State authorities. There are also other obstacles in accessing evidence in Australia, considering that once a final appeal has been processed, DNA evidence is destroyed. This protocol significantly decreases the chances of exonerating a convicted person.

The number of miscarriages of justice carried out in Australia depend on many factors, including:

– How many cases are tried annually;

– Financial disadvantage;

– Authenticity of forensic evidence;

– Tampering with evidence;

– Police corruption;

– Pressure from media sources;

– The reliability of sources of witnesses; and

– The perpetrator and victim’s testimonies.

The previous reliance on, and flaws in, other forensic sciences such as DNA technology

Tuite v Queen [2015] VSCA 148

In the case of Tuite v Queen, The Victorian Court of Appeals established that under section Evidence Act 135135 General discretion to exclude evidence. This meant that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might–(a) be unfairly prejudicial to a party, (b) be misleading or confusing, or (c) cause or result in undue waste of time.

The ‘countenance of DNA evidence not admissible. ‘The case was about burglary, assault and rape. The DNA calculation was used by the software package. The claim of the applicant was the finding of the DNA is a finding that the software result was misleading and confessing

Software Methodology and Inconsistency with the law

In the case of ‘Tuite v R the software methodology ‘was not sufficiently reliable and wasn’t accepted by the forensic Science community This intact means that the opinions derived from it were not based upon specialized knowledge.

This was required by the legislative instrument Evidence Act s79: opinions based on specialised knowledge.

From the Act:

(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following (i) the development and behaviour of children generally; (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences

Whether AI would be able to assist in preventing miscarriages of justice

AI by a simple definition is the rapid advancement in the field of computer science where machines are made in a way that they have an intelligence component making them able to perceive and respond to the environment independently as well as perform functions that would in reality be performed by a normal human being. Others are used in making certain decisions without the direct intervention of the human being.

We are living in an era where AI is a reality and has a real impact on our daily lives. AI is being in various aspects of human lives for example in the education, health, financial sectors among others. In recent years, AI has been deployed to public safety functions and criminal justice systems.

AI has been under research on how it can assist in public safety and the administration of justice. Some governments across the globe are using AI to help solve certain crimes and discover the truth in some cases. One way they do this is by using AI in facial recognition. In the past, we have had so many instances where people have been locked behind bars due to mistaken identity and confusion (Rigano, 2018).

AI is being used to administer justice in such situations such as the identification parade processes to help identify the face of the real perpetrator of a certain crime. This helps in administering justice because the right criminal will be the one to face the wrath of the law.

AI is also being used in fraud detection. Some internet companies for example PayPal are using it to stay ahead of fraud where they use their fraud detection algorithms to detect fraudulent transactions. This achieves justice in that the right people behind a fraudulent transaction be traced

and made to pay for their crimes. This assists in reducing instances where innocent staff members were getting sacked or arrested for something they were completely unaware of.

Another way AI is being used in the criminal justice system is a thorough analysis of video and photographic evidence where before they were being fabricated to favour one side in a case. AI is coming in handy to assist the courts in identifying the authenticity of the videos or the images and, hence attaining justice.


In conclusion, some of the advantages of AI include reduction in human error, helping in repetitive jobs, coming up with new inventions, making faster decisions, availability at all times among others (Osten, 2021). The disadvantages of it include risking unemployment of some staff of the areas it is being implemented, AI doesn’t improve with experience, it lacks creativity compared to the human mind, posing threats to the long survival of human beings among others.

On balance, the technology is able to assist in reducing miscarriages of justice, however no lawyer, judge or forensic expert should be concerned about losing their job as the technology simply isn’t reliable enough to be completely bulletproof,

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