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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-03 Daily Xml
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CRIMINAL LAW CONSOLIDATION (DOUBLE JEOPARDY) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 March 2006. Page 2006.)

The Hon. S.G. WADE (16:49): I indicate the opposition's support for this bill. The principle of double jeopardy is that a person cannot be tried a second time for a crime for which he or she has already been convicted or acquitted. In Green v United States, Black J. stated the rationale for the principle as follows:

The underlying idea, one that is deeply ingrained in at least the Anglo-Saxon system of jurisprudence, is that the state with all its resources and powers should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal, and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Another significant concern is the need to promote excellence and efficiency in our investigatory and prosecutorial services. These services will be encouraged to ensure that their judgment is sound and reliable if they know they will have only one opportunity to accuse the person. Black J. referred to the principle having deep roots in the Anglo-American system of jurisprudence, but it is not merely an Anglo-American legal idiosyncrasy.

Both the European Union Charter on Fundamental Rights 2000 and the International Covenant on Civil and Political Rights uphold the principle of double jeopardy. The principle of double jeopardy is fundamental, but even under the current law it is not absolute. For example, a person who successfully appeals against conviction will usually face a retrial for the same offence. This bill does not abolish the principle of double jeopardy but, rather, introduces some more exceptions to it.

The matter for judgment by this parliament is how far the exceptions should go. The exceptions to double jeopardy have been extended in a number of common law jurisdictions in recent times. Reforms allowing for a tainted acquittal exception were introduced in the United Kingdom by the Criminal Procedure and Investigations Act 1996, and reforms allowing for a new and compelling evidence exception were introduced more recently by the British Criminal Justice Act 2003.

In Australia, double jeopardy law reform has gained prominence in recent times owing to public disquiet over some controversial cases and, in particular, the High Court decision in R v Carroll. In that case the body of a baby (Deidre Kennedy) was found on the roof of a toilet block in Ipswich in April 1973. Carroll was originally charged with and found guilty of Deidre Kennedy's murder. He was convicted of murder in March 1985. However, later that year, 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.

In 2000, 15 years later, Mr Carroll was convicted of perjury based on his denial of the murder charge on oath at his initial trial. He was later acquitted of this charge by the court of appeal in Queensland. The appeal court's decision was upheld by the High Court holding that trying Carroll for perjury triggered the double jeopardy rule. The Carroll decision was not noteworthy in terms of its application of the law: it was a rational application of settled legal principles. But the case did serve to focus emerging issues, and subjected the basic principles underlying the double jeopardy rule to scrutiny. There was significant information available to the public to suggest that Carroll was guilty.

The case is an extraordinary one. From the murder to the final case, 26 years elapsed. The murder occurred in 1973, the original trial was held in 1985, the conviction was quashed in the same year and then the perjury trial was conducted in 1999. The prosecution for perjury inevitably involved attempting to controvert the earlier acquittal on the charge of murder. The matters to adduce and retry were the same matters relating to his guilt for the murder itself. The Carroll case in that sense is the leading authority on the issue of double jeopardy in Australia. As I said, it provided a focus and stimulus for reform in this country.

In this state the Liberal Party, as so often happens, has championed reform in this area. In May last year we announced a policy in relation to the reform of the law on double jeopardy. We welcome the government's belated action in this area. The Premier's press release was dated 7 August 2007. In referring to that release, I will mention in passing that I thought it was unhelpful in its terms. It talks about the state government preparing to overturn the ancient legal principle of double jeopardy.

Further on, Mr Rann says that the Council of Australian Governments meeting this year resolved to reform double jeopardy laws and only Victoria and the ACT reserved the right not to overturn it. I think that is a misstatement of what this bill offers, and it is certainly a misstatement of what the Liberal Party was proposing. This bill (and our policy) was that the principle of double jeopardy would not be overturned but, rather, it would be reformed: that there would be exceptions included to the principle. This bill seeks not to overturn the law but to provide for a set of exceptions in exceptional circumstances in the context of more serious charges.

One particular driver for the exceptions to the principle of double jeopardy is the development of technology, particularly DNA evidence. Of course, we can overstate the significance of DNA. The development of DNA technology is not the first time that technological developments have had an impact on criminal investigations. I am sure the development of microscopes, for example, would have allowed evidence to be looked at through fresh eyes. It may have been new and compelling in terms of this legislation but excluded on other grounds. However, DNA is a particularly precise technology which provides particularly useful evidence—evidence as to the identity of people present at the crime, one of whom could have been the offender. Of course, fingerprint technology, in its turn, would have provided evidence as to identity but DNA technology in particular has caught the imagination of the public.

Whether alone or incremental to other technological developments, DNA technology has added to the gathering view in the public, in the academic community and in legislatures that we need to reassess our strict adherence to the principle of double jeopardy. However, in looking at risks and exceptions we need to act carefully, so that in adjusting the law we do not, in the end, end up with injustices. Hence, we have come to this position where, in the last year, both the government and the opposition have formed the view that this law needs to be addressed.

The Model Criminal Code Officers Committee and COAG have developed very similar recommendations for the reform of the law in relation to the principle of double jeopardy, and it has been agreed that the law be reformed so that a person acquitted of an offence would not be protected by the law against double jeopardy from: first, prosecution for an administration of justice offence where the offence is connected to the original trial (such as perjury or bribery of a juror); secondly, retrial of the original offence or prosecution for a similar offence, where it is fresh and compelling evidence, in cases of very serious offences, including murder, manslaughter and so on; and, thirdly, in the retrial of the original offence or prosecution for a similar offence where the acquittal is tainted in cases of offences punishable by imprisonment for at least 15 years. This bill also proposes changes in the law on appeals from acquittals and appeals on matters of sentence. The bill proposes to implement the recommendations of the COAG working group.

Therefore, this bill proposes, as I said, three exceptions. First, fresh and compelling evidence: this evidence will allow for a retrial of an acquitted person or prosecution for a similar offence where there appears to be fresh and compelling evidence against the acquitted person. Evidence is fresh if it was not adduced in the proceedings in which the person was acquitted and it could not have been adduced in those proceedings with the exercise of reasonable diligence.

This provision seeks to avoid promoting poor investigation and prosecution. 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. The Attorney, in his comments in the other place, explained that this is not a retrospective element of the law. It is not that people will be charged with offences in relation to behaviour which was not illegal at the time they committed it but, rather, they will be prosecuted on the basis of evidence which was not available at the time.

In relation to this exception, evidence is compelling if it is reliable, substantial and highly probative of the case against the acquitted person, that is, it has to be evidence that goes to the heart of the matter and would be likely to be convincing to a court. Evidence is not precluded from being fresh and compelling merely because it would have been inadmissible in the earlier proceedings against an acquitted person. This element of the bill (which I would like the minister to comment on) may have an element of retrospectivity. After all, the behaviour might be subject to criminal charges that existed at the time that the offence was committed but, if the prosecuting authorities can have another go at an offence on the basis of changes to the rules of evidence, that would seem to me to have an element of retrospectivity.

The government's bill is limited to charges dealing with a limited series of offences, such as murder, manslaughter, trafficking in or the manufacture of large commercial quantities of drugs, armed robbery and most aggravated forms of rape. The reason why the bill is limited is that it is in the public interest that we are not prosecuting again and again on less serious matters. In other words, there is a strong presumption in the public interest that prosecutions should not be entered into a second time, and it is only in more serious offences that we should entertain that possibility.

It is interesting that, even within the cooperative federalist approach of SCAG and COAG, various jurisdictions are taking different approaches to the scope of relevant offences. In the case of Queensland, for instance, I understand that at this stage it has restricted its exception to double jeopardy only to the offence of murder.

The opposition supports the bill with its broader scope. However, I think that it is incumbent on this legislature to monitor the operation of these laws and reform them if needed. The common law has been developing for hundreds of years—not, as the Premier seems to think, to allow mullet-headed lawyers to subvert justice but, rather, to promote justice. In the rule of double jeopardy, we see the common law seeking to foster professionalism and sound judgment amongst investigatory and prosecuting authorities and to protect the rights of individuals. In considering double jeopardy reform, we need to be humble enough to know that the justice to which we aspire in this life is not absolute: it is a matter of accepting the limitations of our knowledge, the fallibility of the participants and the efficient allocation of resources across the affairs of state.

The second proposed exception to the double jeopardy rule is in relation to tainted acquittals. This exception will allow for the retrial of an acquitted person where the acquittal is tainted. An acquittal is said to be tainted if the accused person or another person has been convicted of an administration of justice offence in connection with the proceedings in which the accused person was acquitted and it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been convicted of the substantive offence. This exception will apply to acquittals for serious offences, being major indictable offences punishable by 15 years or more. Interference in a trial brings the administration of justice into disrepute, and offenders are not to be able to profit from it.

It is noteworthy that the scope of offences in which a retrial could be implemented is broader in the context of the administration of justice, and that reflects the public interest in ensuring that the administration of justice is not brought into disrepute.

The third exception is the administration of justice offences. This exception will allow for the prosecution of an administration of justice offence where the offence is connected to the original trial. The bill includes a series of safeguards on retrials. Two of the three proposed exceptions contemplate the retrial of the accused on the original charge for which he or she was acquitted. This is clearly an exceptional procedure, which would take place only on rare occasions. The bill includes a number of safeguards recommended in the various reports, including that the retrial must commence on application by the DPP to the Court of Criminal Appeal. Secondly, the court may order a retrial only if it is satisfied that, in all the circumstances, it is in the interests of justice for the order to be made. And there are other safeguards in the bill.

In conclusion, I indicate again that the opposition supports the bill. It supports the principle of double jeopardy. It does not seek to overturn it, but it does support the introduction of limited exceptions to the rule, with the application of appropriate safeguards. We will monitor the operation of these laws and will support the passage of the bill through the council.

The Hon. A.L. EVANS (17:05): I rise to support the second reading of this bill. My comments will be fairly brief, but it may well be that my colleague the Hon. Dennis Hood will add some further thoughts on this important issue during the committee stage.

The submissions we have received on this bill remind me clearly of the submissions that I received after I introduced my bill in July 2002, namely, the Criminal Law Consolidation (Abolition of Time Limit for Prosecution of Certain Sexual Offences) Amendment Bill. By the way, I was disappointed that the Premier—when releasing the Mullighan report earlier this week—gave Family First no credit for the bill which removed the bar to prosecution for offences committed before 1 December 1982. Of course, it was my private member's bill that allowed those offences to be prosecuted and got the ball rolling on opening up the truth about the past and allowing people to come forward and speak about past sexual abuse.

In 2002, after I introduced the bill, I heard the same arguments as I hear now from lawyers and civil libertarians about how the law was well settled and we should not wind things back. I disagreed with those arguments then and I disagree with them now. Justice must prevail in a fair and just legal system. If we have fresh evidence we could not obtain or produce before, there should be no obstacle to re-trying criminals for their crimes.

We now have the technology (such as DNA technology) to enable us to prove things that we could not prove adequately in the courts before. I, for one, was pleased to hear that the South Australian police are re-opening the so-called 'Family' murder files and DNA-testing suspects, and this bill may perhaps be an avenue to re-trying any acquittals.

Of course, there are other grounds for winding back double jeopardy, such as interference in judicial proceedings, but I will not go into that in any great detail here. I will, however, repeat a request which the Family First office put to the Attorney-General's office on 21 February and to which we have not yet had a reply, So I will put that request on the record now: can the Attorney-General, or indeed the Minister for Police, advise roughly how many closed or so-called 'cold' cases might be capable of being reopened once these reforms are passed?

I understand, for instance, that in the United Kingdom, when similar laws were passed in 2005, the National Crime Faculty there were able to identify 35 persons acquitted of murder who could potentially be reinvestigated and against whom new charges could be brought. I do not think that giving us such a statistic for South Australia will prejudice any investigations; in fact, it may well send a message to criminals, who think they have gotten away with their crimes, that their ill-gotten freedom might be short-lived.

Family First therefore supports this bill because we believe there is now sound reason for removing the double jeopardy provisions in the situations described in the bill.

Debate adjourned on motion of Hon. I.K. Hunter.

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