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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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CRIMINAL LAW CONSOLIDATION (DOUBLE JEOPARDY) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

(Continued from page 2360.)

Mrs REDMOND (Heysen) (15:43): Prior to the lunch break I was in fact looking at the main area where this rule against double jeopardy is to be reduced, not completely obliterated but reduced, and noting that in fact it is fairly similar to what we had provided in our original proposal, which was that we thought it could be abolished with respect to serious offences such as rape, murder, kidnapping, armed robbery and serious drug crimes. The government's bill actually deals with murder, manslaughter, trafficking in or manufacture of large commercial quantities of drugs, armed robbery and most aggravated forms of rape.

Various jurisdictions, of course, are taking different approaches to it. In the case of Queensland, for instance, which has only just introduced its change to the double jeopardy provisions (I think in October last year), it has restricted it to the offence of murder only at this stage. I think, however, it is sensible to extend it to these other areas. One can imagine the outrage, for instance, if we extended it only to murder and we had a situation of an aggravated rape where DNA evidence became available subsequently which was compelling but we were not able to proceed because the rule still stood in the case of that offence.

As I said, the bill reflects what we had proposed in relation to that fresh and compelling evidence, but as I said before the break, the government has gone a little further and in the second reading the Attorney-General referred to two exceptions beyond the fresh and compelling evidence exception. The Attorney-General proposes two further exceptions but, in my view, they are so closely linked that they really should be classified as one further exception. I will talk about them in the reverse order to that which the Attorney dealt with them in his second reading explanation.

The first one is the administration of justice offences, which are bribery, interference with witnesses, interference with a judicial officer, perjury, conspiracy to pervert the course of justice, or attempted conspiracy to pervert the course of justice—those sorts of things. Generally, an acquitted person can already be charged with and prosecuted for those types of offences, but putting them into the bill in the way they have been in this case, apart from anything else, I think will overcome quite definitely the problem created by Carroll and Carroll's case about which I spoke at some length prior to the lunch break. There are some requirements for an administration of justice offence.

Firstly, it has to be connected to the original trial for which the person has been acquitted, and it must be fresh evidence. You cannot simply bring the person on an administration of justice offence, unless there is fresh evidence of the commission of such an offence by an acquitted person. The administration of justice offence—that is, the bribery, the perjury, or the attempt to pervert the course of justice (some attempt to stop the trial of the substantive offence from proceeding and coming to a just conclusion)—is necessary as a precursor to the other exception (which I say is really part of the same exception), and that is the issue of tainted acquittals. A tainted acquittal occurs if a person has been acquitted and, but for the fact that one of these offences—bribery of a witness, coercion, or whatever—has interfered with the judicial process and, but for that occurring, it is considered likely that there would not have been an acquittal of the substantive offence.

A tainted acquittal requires a connection of the accused person (or someone else) to an administration of justice offence. It is not necessary for the accused to have been guilty of the administration of justice offence because, otherwise, obviously someone who stood accused of murder, for instance, might arrange for a friend to be the person who attempts to bribe a witness, pervert the course of justice, or, in some way, to interfere with a witness and so on. But if you have a conviction of an accused person, or another person, on one of these administration of justice offences and the court considers that it is more likely than not that, but for that offence, the accused would have been convicted of the original substantive offence, then that establishes a tainted acquittal; and therefore the precursor to being able to bring an application to have another trial which previously would have been a breach of the rule against double jeopardy.

The condition precedent, being that it is more likely than not that but for the commission of the administration of justice offence there would have been a conviction on the substantive offence, therefore seems to be based on the balance of probabilities. It is not to be established on a criminal onus, but the court has to be reasonably satisfied on the balance of probabilities that, except for the interference with the witness or the judicial officer or whatever happened that tainted the proceedings, the person would in fact have been convicted.

The list of offences to which this particular provision applies is broader than the list for the fresh and compelling evidence. In this case, basically, major indictable offences which are punishable by 15 years or more are covered by this provision. It is possible, of course, that a particular set of circumstances could lead to a situation where an acquittal is tainted and there is the possibility of an application under that particular provision following an administration of justice offence conviction and at the same time where there is fresh and compelling evidence. The bill provides that the prosecutors have to actually choose which of those they are going to take on, which one they are going to opt for; they cannot actually do both in the alternative—and I will explore that a little further during the committee stage.

There is only one other aspect that I want to cover in my comments on the bill which as I have already indicated the opposition will be supporting, and that is the issue of the amendment to the Criminal Law (Consolidation) Act which becomes new section 340. It is spelled out in some detail in the second reading explanation, but I am still coming to grips with how it is interpreted and how it works.

As I understand the situation, if a prosecution authority (the DPP or the police) decides to appeal against a conviction on the basis that the sentence imposed was manifestly inadequate, the Court of Criminal Appeal (in hearing that matter) may, at the moment, decide that the sentence was manifestly inadequate but, because it perceives the imposing of the appropriate sentence as being itself a type of breach of the rule against double jeopardy, it does not impose the sentence that it thinks would be appropriate but rather discounts it. The second reading explanation states:

In considering whether to allow the appeal and to exercise its re-sentencing discretion, the court is required to take account of the respondent's exposure to a form of double jeopardy. As Kirby, P explained in R v Hayes...the principle which applies in the context of Crown appeals against sentence is not a true example of double jeopardy, but is equivalent to it because 'the prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court.'

So it does indicate that it is not a true form of double jeopardy, and that to me makes sense, because it would seem to me that if resentencing by an appellate court is a form of double jeopardy then the same reasoning should apply just as equally to an accused person who has been convicted and appeals against their sentence on the basis that it is manifestly excessive, and a court in reducing that sentence, if they agreed, would be imposing a double jeopardy type situation. So I am not sure that I absolutely accept the reasoning that has been put forward in that particular case, and I will explore that further in the committee stage.

There is only one other thing that I want to mention in closing and that is that this legislation is quite clearly, of its nature, retrospective in its operation, in as much as the people who are likely to be affected by fresh and compelling evidence may well already have been acquitted. Indeed, I did look up a little bit over the lunch break the case that I was referring to earlier in the UK, and that was the case of William Dunlop. What had happened was that William Dunlop had been tried for the murder of a lady by the name of Julie Hogg in Billingham in 1989. He faced two trials and on each occasion the jury failed to reach a verdict, and because of the way the system worked there he was then able to be formally acquitted in 1991, after two trials and two juries had failed to convict him. So he had a formal acquittal.

Some years later he actually confessed to the crime and at that time the only action that could be taken against him was, as with Carroll, an action for perjury. But they then reinvestigated the case early in 2001. They introduced this change to the law, and I think it was in 2003 that they passed their Criminal Justice Act, and at that point he was able to be re-tried for the offence, and he was the first person in the UK to be convicted of murder after having previously been acquitted for that murder.

So, clearly the thrust of the bill is that this will apply to everyone, and I suggest that it would be a nonsense if we said that it is only going to apply after the date of the commencement of the bill, because that would just leave a whole lot of people potentially still able to confess to a murder and not be tried for it, even under these new provisions, if they have already been acquitted of such a crime.

Interestingly, I think that Queensland suggested that theirs was not to be retrospective, and I will be interested to find out at some stage on what basis they introduced that provision. I am not expecting that the Attorney will necessarily know the answer to that, but I did read somewhere that the Queensland changes were not to be retrospective, and that simply does not seem to make sense to me.

I indicate that although I have not filed any amendments there are a number of things I will be wanting to explore in committee; so the Attorney need not concern himself too much with being able to answer any questions that I might raise during the second reading in his response. Although I do not want to hold up the house unnecessarily, there are a couple of points of clarification I will seek on the bill in due course. But I do thank the government for getting around to introducing legislation—that was mostly our policy anyway, and I indicate that the opposition will be supporting it and helping it through the house with reasonable speed.

Mr GOLDSWORTHY (Kavel) (15:59): I wish to make a contribution to the house in relation to what we regard as quite important legislation that has come before the house, being the Criminal Law Consolidation (Double Jeopardy) Amendment Bill 2008. As the member for Heysen, the shadow attorney-general, has quite rightly pointed out, although in general the government has been supportive of introducing this legislation and the principle of double jeopardy, this is really the adoption of the state Liberal policy, in terms of introducing this bill. The member for Heysen has quite outstandingly, I would say, given a precis of the legislation and some background information, as is her norm while debating legislation that is brought before the parliament.

Obviously, the term 'double jeopardy' has several meanings, which stem from the long-held legal principle that a person cannot be tried a second time for a crime for which he or she has already been convicted or acquitted. At common law, the pleas used were 'autrefois acquit' (meaning the defendant has already been acquitted) and 'autrefois convict' (meaning the defendant has already been convicted). However, there is also a third sense in which the term is used, that being protection from being punished multiple times for the same offence.

I could go on and give some examples of the different aspects of defendants being acquitted and also defendants being convicted but tried again. However, the member for Heysen has spoken to the house about the case of R v Carroll. Carroll was charged with and found guilty of the murder of baby Deidre Kennedy, whose body was found in Ipswich in 1973. Carroll was convicted on 14 March 1985, but on 27 November 1985 the Court of Criminal Appeal ordered that the conviction be quashed 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'.

Many years later (almost 14 years), Carroll was charged with perjury, on the basis of his sworn evidence at the murder trial that he did not kill Deidre Kennedy. The prosecution considered that it had new evidence that was not available at the time of the murder trial and that Carroll had, in fact, killed baby Deidre. Subsequently, Carroll was convicted. That conviction was then appealed to the Court of Appeal in Queensland, which concluded that the trial should have been stayed as an abuse of process and that the verdict returned by the jury was unsafe and unsatisfactory. The court ordered that Carroll's conviction be quashed and a verdict of acquittal entered.

The prosecution sought special leave to appeal that result to the High Court. As the case proceeded, the High Court judges considered the notion of double jeopardy in considerable detail and concluded unanimously (although three separate judgments were delivered) that, whilst leave to appeal should be granted, the appeal should be dismissed. The Chief Justice said:

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.

So, as members can understand, for people who do not have an intricate knowledge of the judicial process, it was relatively complex.

Members interjecting:

The SPEAKER: Order!

Mr GOLDSWORTHY: I understand that, in recent years a number of jurisdictions have begun to re-examine the notion of double jeopardy, particularly as increasingly technical developments can provide fresh evidence that simply was not available at trial. I would imagine that one of the most outstanding developments in fighting crime over the last decade or so would be the use of DNA. We were pleased in the parliament to support that legislation when the government finally brought it to the house.

In all Australian state jurisdictions, prosecutors can appeal against a sentence handed down by the trial judge. In South Australia and Tasmania, the prosecution can appeal against an error of law made by the trial judge in certain circumstances. However, the acquittal will remain valid, and the purpose of the appeal is simply to clarify the legal position for future cases. Since the overturning of the Carroll conviction for perjury, in particular, there has been considerable debate about the rule with respect to double jeopardy and some calls for reform of the law.

There is some reasonable history to this matter, particularly as it relates to the parliament of the United Kingdom. The Criminal Justice Act was passed, which allowed retrials if there was new and compelling evidence in the case of serious crimes, such as murder, manslaughter, kidnapping, rape, armed robbery and serious drug crimes, to give some examples.

All cases must be approved by the DPP and the Court of Appeal must agree to quash the original acquittal. These provisions came into force in April 2005. On 11 September the following year (2006) William Dunlop became the first person to be convicted of a murder after previously being acquitted. He had been tried twice for the murder of Julie Hogg in Billingham in 1989, but two juries each failed to reach a verdict and he was formally acquitted in 1991. However, several years later he confessed to the crime and was convicted of perjury.

Early in 2001, the case was reinvestigated and, when the new law came into effect, the case was referred to the Court of Appeal (the change to the UK law followed a 2001 recommendation of the Law Commission). Members can see from that one example that the proposed legislation does have real benefit in bringing alleged criminals to trial and being convicted for their crimes. As I said, there have been advancements in technology in investigating criminal activity.

DNA has been one of the major breakthroughs. Using DNA, I understand, has been one of the major breakthroughs in recent times in investigating criminal activity and bringing people to justice. My neighbour happens to be a police officer. When the debate occurred in the community three or four years ago, from memory, my neighbour spoke to me in a reasonably serious manner, encouraging me and the state Liberal Party to support the legislation, and we were pleased to do that. This is an important piece of legislation, as it does bring to justice those people in the community who have committed crime.

Mr RAU (Enfield) (16:10): I just want to say a few words about this legislation and, in doing so, I would like to say that, were it not for the persuasive powers of the Attorney, I might be having other things to say.

Members interjecting:

Mr RAU: I say that in all seriousness. The Attorney has spoken to me about this matter, and I appreciate that. I would like to say that there is an old saying in the law. It is probably one that most people have heard, and it goes something like this: hard cases make bad law. There is always a case of the anomaly. There is always the case of something completely unexpected. There is always the Carroll case. In every field of law you care to look at (if you let the courts process litigation, whether it be civil or criminal), for centuries in the United Kingdom, Australia, Canada and wherever else they might be doing it in the common law system, something really weird will get thrown up, and that is just life. Life is like that. It throws up weird things, and sometimes the application of what appears to be a really sensible piece of common law or statute law produces a result, about which people, looking at that result, inevitably say, 'But this isn't right; it shouldn't happen.' I think that the Carroll case, which has been referred to, is one of those cases, and I understand why people are affronted by that.

The Attorney has persuaded me that things have changed to the extent that when many of these cases were first investigated some years ago DNA testing, for example, was not available. Even though the material may have been recovered by the police and still held somewhere in relation to that case and it is simply a matter of matching the material that is already held by the investigating authorities with DNA material from a suspect, many cases which have hitherto not been solved or solvable will be able to be solved or will be solvable, and I think that everyone who thinks about that would have to say, 'Well, that is a good thing.'

I would just like to spend a moment considering what the common law system—the British system of justice that we have here—has done to deal with the implications of the double jeopardy rule over many years. What the prosecuting authorities have done in all the common law jurisdictions is that when the prosecutors have a case which is strong enough in the prosecutors' professional opinion to warrant the matter being brought to trial, and when they think they have enough evidence to secure a conviction, then and only then do they proceed to trial on that particular complaint.

If, in the process of proceeding with that matter through the courts, they determine that, in spite of what they might have thought when they first charged this individual, it looks like in the course of the hearing itself that that individual's case is not as strong as they thought it was and for some reason they do not think they can secure a conviction, they have the option of pulling the charge—or a nolle prosequi, I think it is appropriately called.

Members may recall that a gentleman was charged with having blown up the National Crime Authority offices in Adelaide some years ago. That matter proceeded to a certain degree and then stopped. It stopped because the prosecuting authorities formed the opinion (and I am not here to say that that was an incorrect opinion, I might add) that, given the evidence they currently had against that individual, it was unlikely they would secure a conviction. The consequence of that would be that that individual would then benefit from the double jeopardy rule and never be able to be charged if indeed later on they did find further evidence that might lead to a stronger case against that individual.

I guess the point I am trying to make is this: the system that has been operating for hundreds of years has developed mechanisms to deal with the consequences of double jeopardy, and the simplest of those mechanisms relies on the professionalism and judgment of the prosecuting authorities. I think members of parliament need to be a little concerned, as do I from my point of view as an individual member of this parliament, that that level of security, professionalism and properly exercised judgment by the prosecutorial authorities does not start to deteriorate because they form the opinion that they now have this 'slips' rule, if you like, sitting there in case something does not go the way they wanted it to go.

I suggest to the parliament that it is bad public policy as a general rule to have the prospect of multiple charges and trials for the same offence generally being possible. The Attorney has assured me—and he has shown me the provisions of this legislation which lead me to have some confidence—that this legislation will not open up a sort of revolving door of litigation where you keep litigating against an individual until you finally grind them down and crack them, because that is not good public policy.

I am reminded of a story that came to me a few years ago from a butcher. I was in this fellow's butcher shop and I noticed that he was cutting up meat while one of his co-workers, also cutting up meat, had a chain mail glove on his hand. I said to my friend, 'Why don't you wear one of those?' He said, 'Because one day I might forget to put it on.' The point is that we can become too comfortable with some of these devices which are designed to make things easier and, if we become too comfortable with those devices, that would not be good for the administration of justice because, as a general rule, I do not agree that it should be possible (or indeed desirable) for any citizen to be subjected to the ordeal of a criminal prosecution repeatedly for the same thing.

As I said when I started, having spoken to the Attorney I am satisfied that—and he is a very persuasive person, the Attorney, and I do not know whether you people—

Members interjecting:

The SPEAKER: Order!

Mr RAU: I think some of you do not appreciate the Attorney properly because he is not just an interjector. In his better moods he is capable of great persuasive argument and he has convinced me that safeguards contained within this provision mean that it is not something where prosecutors can just wander up and say, 'I couldn't be bothered doing it properly the first time because I am a lazy prosecutor but it doesn't matter because I can have another crack at it in a few weeks because I have this provision here.' The prosecutor cannot do that because the test which is contained in the legislation requires that they could not have possibly done it at the time.

Mr Goldsworthy interjecting:

Mr RAU: So, if the member for Kavel is listening, he would see that there is a very important point there: that this is not an open door to lazy prosecutors nor is it an open door for repetitive persecution of individuals by criminal statute because there are safeguards and filters built into this provision. At the end of the day, I suppose one has to consider whether you would think it was fair that a person who had committed some dreadful crime should get away with it, by reason of the lack of evidence at the time, or indeed the incompetence of our prosecuting authority, when evidence subsequently turns up which is able to establish clearly that that person was guilty of that offence. That is the balancing act that we are going through here. Not without some considerable thought, and not without some concerns that it be properly understood by the prosecuting authorities that this is not an opportunity for them to go about their business in any less of a thorough way than they have been accustomed to in the past, I support the proposal.

Mr HANNA (Mitchell) (16:20): I am speaking in relation to the government's proposal to create exemptions to the common law rule against double jeopardy. The rule against double jeopardy has been in place for centuries and it is to protect citizens against being prosecuted more than once for the same offence. The two main concerns that arise are the power of the state to cripple a person financially by repeatedly prosecuting them; secondly, there is very powerful motivation for police and prosecution authorities to get it right first time if they know that there is but one trial they can impose upon an accused person.

I acknowledge that the Attorney-General in his second reading explanation was quite even-handed and he set out the reasons why the double jeopardy rule has been in place for so long. I have also considered the views of the Law Society which has expressed some reservations about the bill. They are in keeping with the concerns I have already expressed. The government, I am glad to say, does not proceed to throw out the rule against double jeopardy completely but creates, essentially, three exceptions. In my mind, two of them go together when one is dealing with some sort of administration of justice offence, such as bribery or interfering with a witness which leads to an acquittal. In those cases, it may be that either the original charge could be the subject of a further trial or the administration of justice offence itself could be the subject of a trial, notwithstanding that, in a sense, it goes over the same ground as the substantive trial in which the accused was acquitted.

The other aspect of the bill is the exception created for acquittals where fresh and compelling evidence comes to light. I am glad to see that the Attorney-General has introduced some safeguards into the bill: the requirement of the DPP to make application for a retrial and for there to be restraints on re-investigating crimes. I think that these are sensible restraints to avoid a person being investigated again and again and, indeed, prosecuted again and again.

There is still the concern that, despite these safeguards, an innocent person could be the subject of more than one major criminal trial. Just to bring home what we are talking about in terms of the imposition on the citizen, we might be talking about hundreds of thousands of dollars of legal costs to afford a proper defence in a trial that might run for weeks or months, or even more than a year in exceptional cases. They are experiences that you would not want to go through more than once, if at all.

Like a number of other members, I express my reservations about chipping away at the rule against double jeopardy. All I can do is express that concern and at least be grateful that the government has fairly tightly confined the circumstances in which a person can be tried again for a serious offence.

Mr PENGILLY (Finniss) (16:25): I think the case has been put very eloquently this afternoon by the member for Heysen, and supplemented by the member for Kavel. I suppose the interesting thing for me was the comments on this bill made by the member for Enfield, who was clearly rolled by his own outfit. Indeed, I listened with interest to what the member for Enfield had to say.

From my lay view I am really most keen to make sure that people get a fair go; that is the core of my contribution. I am not sure that people always do get a fair go. I might know a bit about growing crops and a few other things but I do not make any claim whatsoever to being an expert on the law, quite frankly. However, it seems that from time to time things go to the keeper in the legal system and people get unfairly treated and that there are disastrous outcomes in legal cases. That is where I am coming from. I just do not want to see in this state—or, more to the point, in Australia either, but given this legislation is for South Australia—something come out of it whereby some poor soul in the future is unfairly treated and rolled out the door by a court.

I totally understand where technology is going. Who knows whether in 10 or 20 years, even 25 years, those sitting in this place at that time will have to come back and revisit all these sorts of things to try to deal with the technology of the day? We might think that DNA is terrific today, but in another 15 years it might be something entirely different. Without prolonging the agony for members in this chamber, I hope that the Attorney-General and the government take on board my 'fair go' provisions, that people do not get unfairly treated and that, given that this side of the house is supporting the bill, when it comes into force everything works properly.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (16:28): I thank all members who have participated in the debate. I thank the member for Enfield for coming around to my point of view. Part of the member for Heysen's speech was an example of the fallacy post hoc ergo propter hoc, which means: since that event (namely the government bill) followed this one (the opposition policy), that event must have been caused by this one. In fact, the government—

Mrs Redmond: It sounds reasonable to me.

The Hon. M.J. ATKINSON: Well, the member for Heysen says, 'It sounds reasonable to me.' In fact, the bill is here because it was agreed at the Council of Australian Governments.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 4 passed.

Clause 5.

Mrs REDMOND: I have a couple of questions on clause 5, because I note that this clause is effectively the rest of the bill. Clauses 6, 7 and 8 are new but clause 5, in fact, is the substance of the bill and contains a number of things. I hope you will allow me a little bit of discretion, sir, but I promise not to hold the committee long.

My first question is pretty straightforward, more about the drafting of the bill. At the end of the interpretation section in subsection (1) there is a definition of 'relevant offence'. I am curious as to why paragraph (b) is worded:

Any other offence for which the offender is liable to be imprisoned for life or for at least 15 years.

Why have you used the term 'be imprisoned for life', because surely life is going to encompass 'for at least 15 years'?

The Hon. M.J. ATKINSON: The wording was decided out of an abundance of caution, in that life is an indeterminate sentence and, therefore, might not have been embraced by the expression 'at least 15 years'. Of course, sometimes a life sentence does not run as long as 15 years.

Mrs REDMOND: I move on to new section 332. I want to explore what is intended by subsection (2), which provides:

Evidence that would be admissible on a retrial under this part is not precluded from being fresh or compelling just because it would not have been admissible in the earlier trial...

I take it that there could be evidence which the prosecutor had available at the time and was aware of, but at the time the rules of evidence decreed that it was not admissible, and then subsequently there may be some sort of change to the rules of evidence, as I read this, that would enable an application to be made to allow a retrial on what we are calling fresh and compelling evidence when in fact it is neither. It may be compelling but it may have always been compelling, and it may not be fresh in any usual sense. I wonder whether the minister could explain a little further what is intended in that particular clause.

The Hon. M.J. ATKINSON: The answer is yes. I think the member for Heysen would like more. That was the argument in the second Carroll trial, that the first appeal by the accused succeeded because certain propensity evidence was not admissible, and then they had another crack at him on the grounds that such evidence was probably, at that time, admissible, by a decision of the High Court. So, that is an illustration of subsection (2).

Mrs REDMOND: On that point again: I see that in subsection (2) there is therefore more risk of the situation arising where someone simply has not done their homework well enough and prosecuted the case well enough, rather than it being fresh and compelling evidence. I am curious about whether you perceive any possibility that, because there is a provision that someone can bring in what is classified as new and compelling evidence, even though it is not new but because the rules have been changed, is there a risk to the accused which is wider because of that particular subsection?

The Hon. M.J. ATKINSON: The distinction is between evidence that was admissible and evidence that was or was not admitted. So, if you are a prosecutor who makes a blue and you have evidence that could have been admitted but, in fact, was not because it was not put up, then you are not going to be able to bring the charges again.

The ACTING CHAIR (Mr Rau): Since everyone is in this very calm, cooperative mood, which I think is very good, I am supposed to cut you off now at 3, but of course I am not going to do that because it is such a long provision and obviously both you and the Attorney want to talk about these things a little more, but could you try and focus on the main points first so that we ensure we have covered your main issues?

Mrs REDMOND: Thank you, Mr Acting Chair. I will move on to new section 335, which I want to talk about generally, because this is the clause that sets out the circumstances in which the police may investigate conduct relating to an offence, and it provides that the DPP has to authorise it, but it seemed to me that there must be a preliminary level of investigation before they can apply to the DPP, for the DPP to be able to satisfy himself in accordance with the rest of the provisions and issue the written authority.

I want a fuller explanation as to how it is intended that that will work in the sense that, for instance, they may have to perform a DNA test on some material in order to reach first base to be ready to make the application to the DPP. I am curious about where it says 'a police officer may not carry out an investigation', where that line is drawn that allows them to do the preliminary work prior to getting permission from the DPP.

The Hon. M.J. ATKINSON: In the Dunlop case, Dunlop confessed and that is what triggered the investigation leading to his being tried and found guilty after having been technically acquitted by two hung juries. That is one example. The second example would be a cold hit, that is to say, it becomes obvious when checking DNA about an unrelated matter that this DNA was at the crime scene when it was the contention of the accused which enabled him to be acquitted that he was not at the crime scene. Those things do not require an investigation; they happen. If the police want to DNA test a suspect who has been acquitted, the police would have to apply to the DPP to get permission to DNA test. That would be an investigation.

Mrs REDMOND: From my recollection of the way we structure things at the moment, if someone has been accused of rape and there has been a DNA test done at that time and they have been subsequently acquitted, that DNA sample is not kept, so we do not have the record.

The Hon. M.J. ATKINSON: It is kept under the DNA legislation that was passed last year.

Mrs REDMOND: I thank the Attorney for that information. The police are then holding, or some appropriate authority is then holding that DNA from the person who has been acquitted of a rape. There is then another rape; DNA is again taken and the person is charged with that rape and someone thinks, 'We reckon that this is the same guy.' Do they actually have to go to the DPP and get permission before they can even access the earlier DNA to compare the DNA taken where they have currently got someone and may even get them convicted? Do they have to go to the DPP to get permission before they can check that DNA against the DNA they are already holding if they still believe that that person is likely to be the offender?

The Hon. M.J. ATKINSON: No, that would not be deemed by our proposal to intrude on the accused. In essence, the police can fiddle with the database.

Mr HANNA: My question is about the assessment of evidence under new section 332 as to whether it is fresh and compelling. It seems to me that the important thing is that any new evidence that comes up should have at least a fair chance of making a difference at the subsequent trial. I am not sure that the definition of 'compelling' really captures that significant aspect. Do you agree?

The Hon. M.J. ATKINSON: No, I do not agree. I refer the member for Mitchell to proposed section 332 subsection (1) paragraph (b) 'compelling if,' subparagraph (iii), 'it is highly probative in the context of the issues in dispute at the trial of the offence.'

Mr HANNA: I note that the provisions are not retrospective and I consider, in this context, the effect of abolishing the rule that prevented old charges of sexual assault being raised. When that was removed by the Labor government there was a small flood of late complaints about childhood sexual assault and that sort of thing. How is the Attorney-General going to monitor fresh complaints coming out of the woodwork in cases where people have been acquitted in the past, perhaps 10 or 20 years ago?

The Hon. M.J. ATKINSON: I do not think it is my job to monitor it. The DPP will monitor it because that is his job. The United Kingdom has had this exemption from the rule against double jeopardy since 2003 and there have only been a couple of cases. New South Wales has had it, I think, for two years and there have been no cases. I do not think it is a change that is going to lead to much change in effect.

Mr HANNA: In that case, why make it retrospective? If it is anticipated that there will be hardly any cases that will arise from crimes allegedly committed some time in the past, then why not adhere to the principle that there should not be retrospective legislation which can seriously impinge on people's rights and make this applicable for crimes committed from this time on?

The Hon. M.J. ATKINSON: The fallacy in the member for Mitchell's argument is that we are not making criminal that which was not criminal before.

Mrs REDMOND: I would like to move to new section 336, and I think it might be connected a bit to the answer the Attorney just gave to the penultimate question asked by the member for Mitchell. Section 336 deals with the retrial in the case of an acquittal which is tainted and the reason I think it might be relevant to the previous answer is that, of course, it provides amongst other things that the Full Court has to be satisfied of the things set out in that section before they will order the retrial. Connected to the member for Mitchell's question therefore, subsection (1) refers to the court needing to be satisfied, first, that the acquittal was tainted and then paragraph (b) states:

In the circumstances, it is likely that the new trial would be fair having regard to—

(i) the length of time since the relevant offence is alleged to have occurred.

Given the provisions in other bits of legislation and other discussions that we have had over legislation concerning if an accused is put at a forensic disadvantage by reason of delay, is it the case that that provision is likely to preclude proceedings for cases which would otherwise fall within the ambit of this provision simply because of the length of time which has now elapsed since the accused was acquitted originally?

The Hon. M.J. ATKINSON: It might, but I do not think that what we are saying in the bill is different from the established common law position.

Mrs REDMOND: I have one more question relating to new section 340, which, although it is inserted in the Criminal Law Consolidation Act, appears to have been substituted for sections that have been deleted, so it is a new clause. It is to overcome the problem that I spoke about which, according to the Attorney's adviser, comes about because of a perception that resentencing by the Court of Criminal Appeal can amount to a breach of the rule against double jeopardy.

Whilst I accept, pending any information to the contrary, what has been said, I am curious about the manner in which the provision has been worded, in particular, where it refers to if the court decides that the original sentence 'should be quashed and a more severe sentence substituted, the court may substitute a more severe sentence even if, in so doing, the court may be exposing the convicted person to a form of double jeopardy.' It seemed to me that, as legislators, it would have been better for us to say that that does not constitute a form of double jeopardy and (by statute) make it fact rather than give tacit approval to the concept that it is some form of double jeopardy.

I have not had time to speak to parliamentary counsel about it or to have an amendment drawn up, but it seemed to me that it might be worth considering putting it more in the positive rather than expressing a negative but tacit approval of the concept that in some way substituting the appropriate sentence could be a breach of double jeopardy. I wonder whether the Attorney has any comment on that.

The Hon. M.J. ATKINSON: Whether or not we like it—and I do not like it—the courts have decided that it is a form of double jeopardy, and therefore we drafted the provision that way.

Mrs REDMOND: I am curious as to why it would not be more sensible to say what we declare through the legislation. I mean, we change lots of things that overcome interpretations that the courts have placed on things. Why would it not be appropriate to simply insert it into the legislation and say, 'We in this legislation specifically say that this is not a breach of the rule against double jeopardy'?

The Hon. M.J. ATKINSON: If the member for Heysen and the opposition would like to do that, then I am sure there will be an opportunity between the houses for such an amendment to be moved in another place.

Clause passed.

Remaining clauses (6 to 8) and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.

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