CRIMINAL LAW CONSOLIDATION (DOUBLE JEOPARDY) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2007. Page 2043.)

Mrs REDMOND (Heysen) (12:42): I will be the lead speaker for the opposition on this bill. This matter has been considered at some length previously in terms of our own policy. I highlight to the house that we announced a policy in relation to the law of double jeopardy in at least May last year and did further work on it and gave it more publicity in August last year.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: As the Attorney says, the government has copied us. It is interesting that both sides are looking to amend the law in this regard, because for a long time the law against double jeopardy (or the principle of it) has been a reasonably fundamental principle of our criminal law: the idea that once you have been tried and even acquitted or convicted, then you would not face trial again for the same offence. The fundamental proposition that has been a tenet of the criminal law for some hundreds of years and embodied in the principle of double jeopardy has come into question, largely because of technological developments.

When one talks to ordinary members of the community, many are aware of particularly DNA evidence and the development of a great deal of quite precise technology which can provide forensic evidence in relation to the commission of crimes by alleged offenders, and it is largely for that reason that people have begun to question whether a strict adherence to this principle of not placing anyone in a situation facing double jeopardy, that is, retrial for an offence for which they have already been acquitted, is an appropriate way to manage our justice system. I think members of the community at large take the view—in our view, quite rightly—that it is appropriate for us as legislators to adjust the law so that what we get, at the end of the day, is a just result.

Probably the most famous case in relation to this problem of double jeopardy—particularly as it appears in Australia—was the case of R v Carroll. That case occurred in Queensland and involved basically the situation in which—and many people would remember—baby Deirdre Kennedy was found dead. Her body was found on the roof of a toilet block in Ipswich in April 1973 (many years ago now) and Carroll was originally charged with and found guilty of her murder. He was convicted of murder on 14 March 1985, but on 27 November 1985, the Court of Criminal Appeal quashed that conviction on the basis that a properly instructed jury, properly considering the matter, could not be satisfied beyond reasonable doubt on the prosecution evidence that the accused was guilty.

There is plenty of public information about Carroll's guilt and, indeed, what happened subsequently was that, in February 1999, Carroll was then charged with perjury on the basis that, in giving his sworn evidence at the original murder trial, he said that he did not kill Deidre Kennedy and therefore, if that was not a true statement, under oath he was making an untrue statement, and therefore was guilty of perjury. Bearing in mind that this is some 26 years after the original murder, the prosecution considered they had new evidence which had not been available at the time of the original trial.

We have the murder in 1973, the original trial in 1985, the conviction being quashed at the end of 1985 and then the new perjury trial in 1999. By then, they considered that they had sufficient evidence to show that he had, in fact, killed baby Deidre and he was convicted on that trial of perjury. Then that was appealed to the Court of Appeal in Queensland and the Court of Appeal concluded that the trial should have been stayed as an abuse of process. They then quashed that conviction and entered an acquittal in favour of Carroll, so then the matter went to the High Court. The High Court considered in detail—and this is where it became the leading authority on this issue—the notion of double jeopardy and, although they gave separate judgments, they came to a unanimous conclusion that, whilst leave to appeal for the consideration of the High Court should be granted, the appeal should be dismissed; that is, they upheld the view of the Court of Criminal Appeal in Queensland that there was a principle of double jeopardy, which was basically being abused.

In the High Court, the Chief Justice said that proceedings on the indictment for perjury should have been stayed, as the Court of Appeal concluded. The prosecution inevitably sought to controvert the earlier acquittal on the charge of murder. They were saying that, although the new trial was ostensibly about Carroll's perjury in the original trial, the matters that they sought to adduce and retry were the matters relating to his guilt for the murder itself. That has gone in a different way to what has happened in other jurisdictions, but suffice to say that is the leading authority on this issue in Australia at the present time and we are one of several jurisdictions looking at the issue of overcoming that problem.

The community expects that justice should be done—that someone who is clearly guilty of murder should be able to be found guilty of murder and punished accordingly, notwithstanding that there has already been a trial. Putting aside the Carroll case for the moment, it is not hard to imagine, for instance, that someone could face a trial for murder, or another serious crime, and be acquitted on the basis that there was insufficient evidence and, simply because of new evidence in the light of DNA developments, there could be quite compelling evidence that the person did actually commit the crime for which they have been acquitted. As the law stands at the moment, particularly in light of the decision of the High Court in Carroll, there is really nowhere for the prosecution to go and the person is able to rely forever on their original acquittal.

Indeed, the Attorney mentioned in his second reading explanation the statement of Article 14, paragraph 7, of the International Covenant on Civil and Political Rights, which states:

No-one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

So, the idea of there being a principle of double jeopardy is not restricted to Australian jurisdictions. It is something which is generally, in most western societies, a principle of our legal system. Indeed, we are by no means the only jurisdiction to seek to address the issue. New Zealand I think has already addressed it, and so, too, has the United Kingdom. The United Kingdom in fact had a situation where someone who had been acquitted of a murder subsequently confessed to that murder on the basis that he believed he was untouchable.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: The Attorney suggests he may have been in prison, and I think that may be correct—that that person confessed his guilt of the murder to one of his fellow inmates in prison. But, clearly, the community has a right to feel disquiet about a judicial system which cannot appropriately deal with someone who has actually confessed to a murder because of this rule.

Hence, we got to this position where we had decided last year, and the government has decided this year, to seek to rectify that situation. Obviously it is not something that we on either side would want to do lightly. A fundamental principle of the law which has stood us in good stead for hundreds of years is not to be cast aside lightly. So, like us, the government decided to restrict the circumstances in which such a review of the law should apply; but it has, and I acknowledge the government in one respect, taken on an extra issue that we had not addressed in our previous position, and I will come to that in a moment. First, I want to deal with the area in which we are indeed at one with the government in terms of what we originally proposed early last year and what the government's bill now seeks to address, that is, the requirements for the allowing of a new trial where someone has already been acquitted.

The first requirement is that there must be fresh evidence. Fresh evidence will mean that it has to be evidence which could not have been adduced at trial using reasonable diligence. One of the reasons for this is that we do not want to set up a system whereby people can get away with being a bit sloppy in the preparation of their case. A sloppy prosecution which has failed to adduce evidence which should have been reasonably available will not lead to a situation where an application can be made to bring a fresh trial. It has to show, first, there is fresh evidence or new evidence that could not have been adduced at trial with reasonable diligence. The most obvious situation, again, will be DNA evidence where the technology may not have been available at the time of an earlier trial but is now available.

Also, the evidence must be compelling. It must be both new and compelling. Compelling is described in the second reading explanation as being reliable, substantial and highly probative. It has to be evidence which goes to the heart of the matter and which would be likely to be convincing. Indeed, before there can even be a further investigation of a person already acquitted, most of the time—unless there is an urgency for some reason—the DPP has to certify in writing that the existing acquittal would not prevent a retrial. In order to do that, the DPP has to be satisfied that there is likely to be sufficient fresh evidence to warrant investigation and that it is in the public interest to do so.

Once the DPP is satisfied about that and certifies in writing that an investigation can take place, there still cannot be another trial until there is an application to the Court of Criminal Appeal. That application has to be brought within 28 days, so within 28 days of the arrest or charge of the person is to be retried there must be an application to the Court of Criminal Appeal, and the Court of Criminal Appeal has to satisfy itself on 'interest of justice' grounds that it is appropriate to allow a further trial.

In coming to that conclusion, the Court of Criminal Appeal must consider whether any prosecuting authority in getting to that point—that is, in terms of the retrial—has failed to act with reasonable diligence. Probably the most important part about this fresh and compelling evidence is that it will only apply—that is, the ability to seek a retrial on the basis there is fresh and compelling evidence—for the most serious offences; that is, murder, manslaughter, trafficking in or manufacturing a large commercial quantity of drugs, armed robbery and the most aggravated forms of rape. I seek leave to continue my remarks later.

Leave granted; debate adjourned.