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Individuals wrongfully convicted and imprisoned do not have a common law or statutory right to compensation in any Australian jurisdictions other than the Australian Capital Territory (ACT). However, a state or territory government may choose to make an ex gratia payment either on its own accord or as a result of a request by a party for such a payment.

An ex gratia payment is a '[p]ayment of money made or given as a concession, without legal compulsion' (Butterworth 2004). The term literally means 'out of grace' rather than as a debt of justice. State and territory governments are not obliged to make ex gratia payments in respect of wrongful convictions and a decision to refuse to make a payment is not reviewable in any way (Butterworth 2007). Ex gratia payments are made in a wide range of situations other than to compensate for wrongful convictions, including as a means of implementing financial aid packages to individuals after natural disasters. In some Australian jurisdictions, the relevant Attorney-General's office may publish general guidelines detailing the factors normally assessed in awarding ex gratia payments. Sometimes, specific guidelines may be promulgated to deal with particular types of payments. There are currently no publicly available guidelines in any Australian jurisdiction specifically dealing with ex gratia payments for wrongful conviction. Beyond that a conviction was wrongful, it is difficult to identify the factors that need to be present for a wrongfully convicted person to be compensated, nor how such compensation will be quantified. A high public profile seems to be a good start in terms of background circumstances, although even this does not guarantee success (Percy 2007).

Occasionally, facts surrounding a wrongful conviction may also support tortious claims, such as a false imprisonment, malicious prosecution or misfeasance (New Zealand Law Reform Commission 1998; Percy 2007). These tortious causes of action are very difficult to prove. Even very compelling cases of wrongful conviction will generally not give rise to a successful claim in tort. They require specific additional facts to be present beyond simply that a conviction was wrongful. As such, the protections offered in tort law to wrongfully convicted people are more of theoretical rather than practical utility.

The other type of award that needs to be distinguished from compensation is legal costs. Normally a successful criminal defendant will not be awarded the legal costs expended in defending criminal charges. However, where there have been malfunctions in the criminal process, courts in some Australian jurisdictions may award legal costs to a defendant (Fox 2005: 78, 307-308). Such awards relate to legal costs expended, not compensation.

Shinova wrote:I'm interested in what prison life was like, just out of curiosity purposes. I wonder if he'd be willing to post about that sometime.

Shinova wrote:I'm interested in what prison life was like, just out of curiosity purposes. I wonder if he'd be willing to post about that sometime.

DaveJB wrote:It's possible that the state may offer him an ex gratia payment. However, they're under no obligation to do so, and if they choose not to award Stofsk anything, then there's no way that he can try and sue them into paying out, at least if I understand the law in question correctly. Link

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Compensation or not (he really deserves it though) this is wonderful news, and I hope he's free ASAP.

PeZook wrote:Kudos to prosecutor for being an honest man...but it's too fucking bad he couldn't have displayed that attitude...a bit fucking earlier.

The Spartan wrote:

PeZook wrote:Kudos to prosecutor for being an honest man...but it's too fucking bad he couldn't have displayed that attitude...a bit fucking earlier.

Vympel would be able to answer this, I presume, but, was it the same prosecutor that persued the case?

Tanasinn wrote:How nice of them, they only stole five years of his life before admitting their incompetence.


Good news, anyway.