CRIMINAL LAW CONSOLIDATION (DOUBLE JEOPARDY) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 8 April 2008. Page 2321.)

The Hon. M. PARNELL (20:25): I rise to speak in support of the second reading of the bill. I note that we have just been presented with 16 amendments from the government, so I guess we will have a good look at those before we reach the committee stage.

My contribution today will be fairly general. First, I acknowledge that the principle of a person being tried only once for a particular offence is sound and that it should not be overturned lightly. I think it is important to protect citizens from what could amount to persecution by the state through multiple prosecutions for the same offence. You could conceive of situations where there was no rule against double jeopardy were a person could be tried again and again with the hope that one day a prosecution might result. So, the double jeopardy principle is a sound one. The prosecution gets one chance and it should not proceed with a trial—or with charges, for that matter—unless it has evidence to support it.

However, I do concede that there are cases where the objectives of justice do require tipping the balance in favour of a retrial. The example that is most often given is the case of DNA evidence, an emerging technology that has not been available for longer than about 16 or 17 years, I think. The late 1980s was probably the earliest that we saw this technology used. It seems to me that if, through the use of DNA evidence, we can obtain fresh and compelling evidence that an injustice might have been done at a trial, then you can see that there may be a case for trying that person again.

I note in the bill that 'fresh evidence' is described as evidence which was not adduced at the trial of the offence and which could not, even with the exercise of reasonable diligence, have been adduced at the trial. I guess, for older cases, DNA evidence would fall into that category. It was not available earlier than the late 1980s or even the early 1990s. 'Compelling evidence' is defined as evidence that is reliable, substantial and highly probative in the context of the issues in dispute at the trial of the offence. So, it seems that there is a fairly high bar being set to the circumstances in which a person can be tried again using fresh and compelling evidence.

Aside from DNA, I would be interested to know from the minister what other types of evidence might be included, for example, a witness who comes out of the woodwork; a witness who was not located at the original trial of the offence; a person who could not have been expected to have been located; a witness who might have first-hand knowledge of a crime but who left the scene quickly and no-one else knew that they were even there. Is that evidence of a kind that is likely to be sufficient to overturn this double jeopardy rule? In other words, could we retry a new person on the basis of a new, unknown witness coming out of the woodwork?

Certainly, that evidence would be fresh. Whether or not it was compelling would probably require a hearing of the evidence. Whether the alleged new witness's testimony was reliable, substantial and highly probative would require some investigation. I query how that investigation might take place in the absence of a trial, because that is the forum in which evidence is tested. I am interested in the minister's response to that.

Another thing I want to say about new and compelling evidence is that it cuts both ways. In this bill we are looking at new and compelling evidence that would enable somebody to be tried again following an acquittal and, subsequently, convicted and sentenced. However, it does cut both ways. The other way that it cuts is that there can be no doubt that we have a number of people who have been convicted, who are currently being incarcerated and who should not be there.

There is no doubt that we have innocent people in gaol. I do not know how many we have. I do not know whether the proportion is in single digit percentages, double digits or fractions of a single per cent. However, if we look at the situation in other jurisdictions, I think it does make for some sobering analysis.

One source of information that I have come across in the past year or two has been out of the United States. It is a project known as the Innocence Project. This project is basically a campaign to exonerate people who are currently in gaol and who have been convicted of crimes which they did not commit. It is an exoneration program that relies on DNA evidence. If members are interested, it is easy enough to find this information: the web address is www.innocentproject.org.

A quick look at some of their basic statistics reveals the following: there have been 215 post-conviction DNA exonerations in the United States. Of those 215 people who were exonerated, 16 of them were on death row. That means there are 16 people who, potentially, would have been executed if they had not come to the notice of the Innocence Project and, through DNA evidence, been found to be innocent and released from death row in gaol.

The average length of time served by people who were exonerated using DNA evidence was 12 years—an average of 12 years spent in gaol for a crime they did not commit, until they were exonerated by DNA evidence. The total number of years served by 'exonerees' in the United States is 2,640 years of gaol time—by innocent people who were exonerated later through DNA evidence. It is also interesting that the true perpetrators were identified in 82 of the exoneration cases, so they were double whammy cases. Not only was an innocent person found to be such, but a guilty person was identified as well. My questions of the government are: what steps is the government putting in place and what steps is it proposing in order to ensure the type of fresh and compelling evidence that we are now going to be able to use to retry people to try to gain more convictions, and how will that new evidence be used to exonerate people who are, in fact, innocent?

We had some discussion yesterday and today about a particular murder case that members here have been calling for to be re-opened—not on the basis of DNA, as I understand it, but on other bases. I think the question is still valid: what is the mechanism for people who might have exhausted traditional avenues of appeal under the criminal justice system to have their cases reopened using fresh and compelling evidence? I would like to think that, if we are going to overturn double jeopardy, we are also going to ensure that that evidence can be used by convicted persons to be exonerated as well as trying to convict new people.

Very briefly, I will run through the types of causes of wrongful conviction in the United States where people have been helped by the fresh and compelling evidence of DNA. The Innocence Project, in one of its online fact sheets, states that the exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but they arise from systemic defects that can be precisely identified and addressed. For more than 14 years, The Innocence Project has worked to pinpoint these trends.

I want to identify three of the main causes of innocent people being convicted in the United States. The first one is mistaken eyewitness identification testimony, which was a factor in 77 per cent of the cases where people were exonerated on DNA evidence. That made it by far the leading cause of known wrongful convictions. It was also interesting that of that 77 per cent, 48 per cent of cases where the race of the defendant was known involved cross-racial eyewitness identification. That means that white people misidentified black people and, to a much lesser extent, the other way around.

Studies have shown that people are less able to recognise faces of a different race than their own, and I guess, if we are going to be crude about it, the situation might manifest itself in a criminal line-up where someone's view is that all black people look the same or all Asian people look the same. So, in 77 per cent of cases, that was the cause of the wrongful conviction. In 65 per cent of cases, laboratory error and what the Americans refer to as 'junk science' have played a role in the wrongful convictions.

The misapplication of forensic disciplines such as blood type testing, hair analysis, fingerprint analysis, bite mark analysis and so on has played a role in convicting the innocent. In these cases, forensic scientists and prosecutors presented fraudulent, exaggerated or otherwise tainted evidence to the judge or jury which led to the wrongful conviction. In fact, three cases involved erroneous testimony about DNA test results; so, DNA itself is not an infallible replacement for judges and jury. It is a form of evidence, but it is not absolute proof.

That lab error and junk science category is at the heart of calls that some members have been making today and yesterday for one prominent South Australian murder case to be reopened. The third category I refer to is false confessions and incriminating statements which led to wrongful convictions in 25 per cent of cases. What was most disturbing is that, in about a third of those, the people involved with these false confessions and self-incriminating statements were either juveniles or they were people who were developmentally disabled.

This might all sound like an indictment of the US justice system that could not possibly happen in this country, but I suggest that, whether or not it is to the same extent, it is inevitable that these same errors in the criminal justice system occur in this country and that, as a result, even though the absolute numbers of people will be lower, innocent people are in our gaols.

Again, without pressing the point too hard, I want to know from the government what it is doing in this bill to modify the rule against double jeopardy to deal with the flip side of the coin—innocent people who are in gaol. With those words, I support the second reading of this bill and I look forward to the committee stage after we have had a chance to examine the government's amendments.

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (20:36): I thank honourable members for their contributions to the debate and for their indications of support. The Hon. Mr Wade drew particular attention to the provision that says that evidence can be fresh and compelling even if it was inadmissible at the time at which the first or original trial was held. He has asked about the relationship between this proposal and the idea of retrospectivity. This is a good question that has a complicated answer.

The first point to be made is that in the criminal law a distinction is drawn between rules of substance and rules of procedure. In the most general terms, it is said that rules of substance should not be retrospective but that rules of procedure can be. The leading authority on the matter is the decision of the High Court in Rodway (1990) 169 CLR 515. That case involved the retrospectivity or not of the rule of evidence about the old law that there should be a warning to the jury to the effect that it is unsafe to convict a person on the uncorroborated evidence of a person against whom a sexual offence is alleged to have been committed. In this case, the Tasmanian parliament changed the law on the issue between the time Mr Rodway was charged and when he was tried. The trial judge applied the new law; that is, not the law that was in place at the time the crime was committed. Mr Rodway objected all the way up to the High Court. The High Court held that, in the absence of an explicit provision to the contrary, the trial judge was right and the new law applied. The court stated:

But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.

So, the proposed amendment to which the honourable member drew attention conforms to that law.

The second part of the answer is shorter. It is that the law in general distinguishes judicial law changes from statutory ones. When a court changes the law it is said to be declaring, by convenient fiction, what the law always was. Parliament alone changes the law. So, if the change in the law of evidence and procedure came about because, say, the High Court made a decision, the law was always that and there is no retrospectivity at all.

One could make a distinction between law changes of a judicial or statutory kind, but the first principle says that that is unnecessary and, in any event, it would unduly complicate a law and a principle which is right. These two principles combine to say that the proposed provision is not legally retrospective; it accords with principle.

The Hon. Mr Lawson asked four questions. The first question is whether the Attorney-General could present an indictment, notwithstanding that the Full Court has not given permission for a person to be charged in these circumstances. The answer must surely be no. The previous acquittal stands as a bar to any indictment until it is removed. The bill gives the Full Court the exclusive power to remove it. In addition, the bill is clear that the DPP has the power to make the application.

Similarly, the Criminal Law Consolidation Act is clear. When it wants the Attorney-General and the DPP to have corresponding powers in this area of the act it explicitly says so. The Attorney-General could, conceivably, exercise a power to direct under the Director of Public Prosecutions Act, subject to the detailed rules and qualifications set out in that act.

The second question is whether there has been any judicial exploration of the phrase 'compelling evidence'. The answer is no. The requirement was borrowed from the analogous United Kingdom legislation. There has been one retrial under that legislation. The court commented that the fresh evidence was not only compelling but overwhelming. The concept is not, of course, at large. The bill essays a definition of it in section 332(1)(b).

The third question is why the only conspiracy included in the retrial possibility is conspiracy to murder. The purpose of this proposed reform is to allow an overturn of a well-established rule, but only in clear cases. The honourable member has expressed some disquiet about the possible over use of the reform. Conspiracy is a crime ill-suited to such a policy of restraint. It is well known that the crime of conspiracy is protean and far-reaching. The classic statement illustrating the width of the crime is that of Brett JA (later Lord Esher) in R v Aspinall (1876) LR2 QBD48 at 58:

Now first, the crime of conspiracy is completely committed, if it is committed at all, the moment two or more have agreed that they will do, at once or at some future time, certain things. It is not necessary in order to complete the offence, that any one thing should be done beyond the agreement.

As a matter of interest, this doctrine dates back at least to the decision in the Poulterer's case in 1610.

The fourth question is whether there is any judicial or other experience about the police having to seek the authority of the DPP before an investigation. The answer is no; but this is a rare and exceptional law. The case for such a check on investigation is, if I may be permitted the word, compelling. It is clear that one of the major purposes of the rule against double jeopardy is the protection of citizens from harassment by the state.

The careful legal protections built into the bill would be seen to be of little worth if the police, with all of the resources at their command, could keep after the acquitted accused indefinitely and on any basis. There must be some kind of case to answer.

I want to apologise to the council for the late government amendments which have just recently been filed. The Chief Justice made some very helpful comments on the bill late last week and, of course, coming from such a source they warranted particular care and attention. The comments have resulted in some proposed amendments for the consideration of the council, and obviously members will need to look at those. Unless there are any other questions we could perhaps go to clause 1 and then adjourn and deal with the amendments later.

Since these amendments have come in late, I will perhaps explain them at this stage for the benefit of the chamber. For the first amendment, the bill defines 'acquittal' to include an acquittal made on appeal or an appeal made at the discretion of the court. The latter was intended to include an acquittal by direction (most obviously after a successful no case to answer submission) and an acquittal in other circumstances (such as an acquittal entered by verdict on trial by judge alone). The Chief Justice thought that 'discretion' was a misprint for 'direction'. That was not so, but given the comment I think it is useful to make the distinction clear.

The second amendment is to clause 5, page 7, after line 16. This clause defines the discretion of the court to determine whether the new trial would be fair. The Chief Justice thought that the wording as the bill stands is too confining. I think it right that the court should be given an amplitude of discretion. This amendment, which is No. 2 in my name, is to the same effect as amendment No. 11, both are amendments to clause 5.

The third amendment standing in my name is to clause 5, page 8, line 2. The Chief Justice commented that he thought the word 'indictment' should be replaced by the word 'information' wherever it appears, and that is being done. Since they are all in clause 5, this amendment is the same as amendment Nos 4, 5, 7, 8, 9, 12, 13 and 14 in my name.

In relation to the sixth amendment to clause 5 (page 8, after line 8), the Chief Justice pointed out that, although the bill provided for the removal of the bar of acquittal at the point at which the barrier to retrial had been passed, it did not provide explicitly for the restoration of the acquittal should the retrial fail for any reason. The government agrees that this should be done, and this and two other amendments achieve that end. So, as well as amendment No. 6, amendments Nos 10 and 15 are associated with that.

In relation to the final amendment (No. 16) to clause 5 (page 11, lines 13 to 21), this provision in the bill is about the practice of courts on appeal against a sentence to discount an increase in sentence on the basis that the offender has been subjected to a form of double jeopardy because he or she has faced a second hearing.

The policy of the government on this point is clear, and it is that there is not a question of double jeopardy here, nor should the sentence be discounted. The court on prosecution appeals against sentence will interfere with the original sentence only in exceptional cases. It will interfere when there is some point of principle; it will interfere where there is manifest inadequacy; and it will interfere where the sentence is such as to shock the public conscience. These criteria are well established.

Once that initial threshold is reached, there should be no question of discount just because it happens to be an appeal. While the policy is clear, the way to deal with it in statutory words without unintended or unforeseeable consequences is not so clear. There are no successful models to follow.

The clause in the bill as introduced into the council received late comment. We have done our best to address those comments. This bill is proposed as a compromise wording. So, that explains those late amendments, and I trust that that explanation will help and will be dealt with when we come back to this bill.

I also need to add some comments in response to the Hon. Mark Parnell's question, when he asked, 'What other evidence could be fresh?' The possibilities are potentially endless. The Hon. Mr Parnell's examples could qualify. You could not tell whether it was compelling without looking at each case. In the one successful case in England (Dunlop), the fresh and compelling evidence was his own confession. Current avenues exist for those convicted who seek to produce fresh evidence for their innocence. For example, one may make late application for leave to appeal against conviction, or there is the procedure of petition for mercy.

Notoriously, Mr Keogh has made full use of these procedures, albeit without success to date. Without going into the details of that case, the point is that there are a number of avenues, and they have been used. I think that addresses the point made when the Hon. Mark Parnell asked, 'What about the reverse to the intention of this particular bill?' With those comments, I commend the bill to the council.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: My understanding of the Attorney-General's second reading explanation in the other place is that the bill before us is the result of the work of the Model Criminal Code Officers Committee and the Senior Officials Working Group of the Council of Australian Governments. As I understand it, except for the variation between jurisdictions as to the scope of the offences that would be able to be reconsidered under the bill, the bill is basically the same throughout all jurisdictions. Is that the case?

The Hon. P. HOLLOWAY: My advice is that, yes, that is the case, with the exception that Queensland, as I understand it, did not want its particular act to be retrospective in the sense that it did not want it to apply to acquittals before the act came into effect.

The Hon. S.G. WADE: In that context, do any of the amendments put forward by the government this evening threaten the national consistency that SCAG and the Model Criminal Code Officers Committee were seeking?

The Hon. P. HOLLOWAY: No.

The Hon. S.G. WADE: Did the Chief Justice propose any amendments that the government is not putting forward?

The Hon. P. HOLLOWAY: My advice is yes. We can either go through them or, if the honourable member wants a briefing about them, we can arrange that, too.

The Hon. S.G. WADE: Just on a general point, I wonder whether the government can explain, in very broad terms, what the process is for consultation with the judiciary. I am not clear, for example, whether judges get copies of draft bills as a consultation document or whether judges receive copies through the Courts Administration Authority as part of a cabinet process, etc.

The Hon. P. HOLLOWAY: We are talking about legal bills. I am not sure what the practice is. Usually (not always), following the introduction of Attorney's bills, which are different from bills that are the responsibility of other ministers, copies of the bill and the second reading speech are sent to the Chief Magistrate, the Chief Judge, the Chief Justice, the Law Society and other like bodies for comment.

Progress reported; committee to sit again.