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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-08 Daily Xml
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CRIMINAL LAW CONSOLIDATION (DOUBLE JEOPARDY) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 April 2008. Page 2289.)

The Hon. R.D. LAWSON (16:24): I rise to contribute to the second reading debate on this bill. I begin by commending, on this occasion, the Attorney and the minister in this place on producing a second reading explanation that at least provides some of the background detail and intended effect of the legislation in a way that is not only reasonably comprehensive but also comprehensible. I think that too often some of the bills introduced by the Attorney come in with explanations that are too brief. A very good example of that is the bill that has just been considered in the committee stage, namely, the public order offences bill, in which we were treated to a very short explanation and justification of the provisions.

Whilst my colleagues and I in the Liberal Party will be supporting the passage of the double jeopardy bill, I think that it is fair to say that I personally have some reservations about it. It is all very well for ministers and governments to say that these powers will be exercised only in rare and exceptional cases and circumstances. However, the fact is that no such assurance can really be given, because there is no way of knowing what situations will arise in the future. There is no way of knowing, for example, what new techniques of detection might be adopted.

It is true that most speakers on double jeopardy talk about the revolution wrought by DNA evidence, but there will no doubt be refinements in DNA evidence. There will be other refinements and techniques, presumably, to extract from people information, confessions and the like. All sorts of inducements might be offered to informers to provide evidence (concocted or otherwise) to enable police to revive prosecutions against persons whom police believe were unfairly acquitted in the first place.

This is not some new situation that arises simply out of the Carroll case in Queensland, to which reference has been made. Presently, there is a case before our courts, R v McGee, in which Mr McGee, who was found guilty of driving without due care but not guilty of the more serious offence of causing death by dangerous driving, is now being charged with the offence of conspiracy to attempt to pervert the course of justice.

We should all be indebted to Judge Robertson of the District Court, who delivered a very lengthy and learned judgment on the matter in February this year. It is a 56-page very tightly reasoned judgment which refers to authorities which, whilst not directly relevant to the question of double jeopardy, deal with the related concept of incontrovertibility—namely, that decisions of courts cannot be subsequently controverted in subsequent proceedings.

In this case (and I will be careful not to run foul of any sub judice rule) members will recall that psychiatric evidence was given at the sentencing hearing of Mr McGee. Professor Sandy McFarlane said that McGee had experienced a psychiatric condition known as dissociation and therefore was not as responsible for his actions as might otherwise have been the case. The judge accepted that, and yet here it is that the prosecution under existing laws is seeking, certainly in the minds of many in the legal profession, to overcome what was seen to be the injustice created by a small penalty for what was considered to be a serious offence.

I mentioned the 56 page judgment of Judge Robertson. He ultimately held that the charge of conspiracy to attempt to pervert the course of justice could proceed and did not offend that principle of incontrovertibility. In the course of this, he examined principles similar to that which arise in relation to double jeopardy matters.

It is interesting to see that the government has selected a series of offences which could be retried but has excluded some other quite serious offences; for example, offences of a public nature, such as the offence for which Mr Randall Ashbourne, the Premier's principal political advisor, was acquitted. Mr Randall Ashbourne does not run the risk of being prosecuted for the same or some cognate offence, whatever evidence might be revealed in the ongoing select committee, or elsewhere in the community. It is an interesting choice by the government of what offences should and should not be included in these new rules.

I am somewhat concerned as well as sceptical about the new prohibition against police investigations into certain matters. Proposed new section 335 contains provisions which are described in the heading as follows:

Circumstances in which police may investigate conduct relating to an offence of which person [was] previously acquitted

Police are not allowed to investigate; they are not allowed to question the person, for example, unless they have the written authorisation of the Director of Public Prosecutions.

I am sceptical about the way in which this will work; I am sceptical of the fact that a police officer first has to obtain permission or written authorisation from the Director of Public Prosecutions to proceed down a particular line of inquiry. What happens if he is not investigating this particular crime but incidentally is investigating some other circumstance, or receives some information from an informant which indicates that there may be some prospect of a further prosecution? At what point in this investigation is the police officer to desist from those inquiries and then seek a direction from the Director of Public Prosecutions?

Incidentally, while discussing the Director of Public Prosecutions, I note that the retrial of offences can occur only if the Full Court on the application of the director makes certain orders. For example, proposed section 336(4) provides:

The Director of Public Prosecutions may not, without the permission of the Full Court, present an indictment for [a] retrial...

The Attorney-General already has the power to issue an ex officio indictment. It is rare for the Attorney-General to exercise that residual power, but it exists. The Attorney-General does not have to wait for the Director of Public Prosecutions; he has an independent right to present an indictment. My question, to which I would like the minister to put an answer on the record, is: does this section allow the Attorney-General to present an indictment, notwithstanding the fact that the Full Court has not given permission for a person to be charged in these circumstances?

Concepts such as 'fresh and compelling evidence' are, in my view, somewhat subjective. The concept of new or fresh evidence has a very well accepted meaning in the criminal law. There are circumstances where fresh or new evidence can be admitted, and they would be well understood by those who are concerned with this particular law. The bill adds the necessity for the evidence to be compelling but, so far as I am aware, there has been no judicial discourse on the meaning of what is or is not compelling evidence. I ask the minister to indicate in his response whether there is any judicial authority on the meaning of compelling evidence in this context.

The conspiracy offences are often seen as the last refuge of a desperate prosecution—for example, we see a conspiracy charge being laid in the case of Mr McGee to which I referred earlier—but it appears from this bill that it is only the offence of conspiracy to murder that will be capable of being re-tried under these provisions. No other conspiracy offences are capable of being re-tried. Whilst it is true that conspiracy to murder is certainly one of the most serious—and one might almost say as serious as any crime in the criminal calendar—other conspiracies are equally offensive and serious, and I ask the government to indicate why other conspiracies have not been included in the catalogue of either relevant offences or category A offences as defined.

I also ask the minister to indicate whether there is any judicial or other authority or experience in relation to the provision which precludes the police from investigating conduct relating to offences for which persons have been previously acquitted and, in particular, whether any case history or other relevant experience has been used in the formulation of the particular rules that are incorporated in this bill. I will pursue a number of other technical provisions of the bill in the committee stage, and I look forward to that stage of the debate.

The Hon. D.G.E. HOOD (16:40): I rise to indicate Family First's support for the second reading of this bill. It has been a somewhat controversial bill, although not as controversial as I expected. I think the most significant aspect is this bill's retrospectivity, which is a controversial matter in criminal law. This sort of reform makes sense to bring justice for the victims today only if it is retrospective. The Attorney-General advised us in his second reading that a pending bill in the New Zealand parliament and a private member's bill in Queensland both failed to have retrospectivity and, in that regard, they can hardly be called reform at all for the present victims of injustice. Those bills fail at the hurdle of blind adherence to legal principle when, in the double jeopardy scenario, one could hardly argue that, had they known what the law would have been, they would not have behaved the way they did.

Over 20 years or more, prospective bills such as those in New Zealand and Queensland will serve to be useful reforms, but to leave out retrospectivity is to create two classes of victim in one sense—that is, victims then and victims now. As an advocate for victims, I would not be supportive of that. Fortunately, here the government has seen fit to follow the British and New South Wales models of retrospectivity.

Recently we traced the origins of laws of riot and affray, and my research shows that double jeopardy has much older origins. In 1164, Henry II wanted his secular courts to try people who had been given soft penalties by ecclesiastical courts. Henry, like other Norman kings of the era, sought full dominion over church and state. However, the Archbishop at the time—

The Hon. B.V. Finnigan interjecting:

The Hon. D.G.E. HOOD: I think he is long gone. However, the Archbishop at the time, previously Lord Chancellor Thomas Becket, insisted that no man should be tried twice for the same offence. This sort of resistance to the king led ultimately to Becket's assassination six years later in 1170. Becket's stance on double jeopardy remains sound only in part, namely, when one has been punished for an offence once before. In another part, that reasoning is not sound, specifically when one has been acquitted for some of the reasons described in this bill. Of course, Becket was referring to this scenario only where ecclesiastical courts had already convicted people of an offence.

In 1642, Lord Edward Coke completed his Institutes on the Laws of England, which included four double jeopardy scenarios: the conviction and acquittal scenarios, which I have mentioned, as well as scenarios of convictions of a lesser offence and the scenario where a person had been pardoned for the offending. In 1765, when William Blackstone set forth the common law in his famous Commentary on the Laws of England, he brought across both the conviction and acquittal scenarios. However, I think it worth noting that the statute book has exploded with a great deal more offences than existed in the days of Becket, Coke or Blackstone.

At its formation, the United States, like several other jurisdictions, included both the convict and acquit scenarios in its constitution—specifically, in the Fifth Amendment in the case of the US. However, the US Supreme Court has done a poor job of articulating why that country should retain the acquit aspect of the double jeopardy laws that we are dealing with in this bill.

Blackstone's commentaries have served as a foundation for the common law across the Western world since the 18th century and, therefore, Australia inherited the conviction and acquittal scenarios. In South Australia, we follow New South Wales and now end that tradition, and rightly so, in my view. I note that it seems that this bill will have widespread support, including opposition support, which is not surprising, given that the former prime minister supported the removal of double jeopardy in a speech to the Queensland Press Forum in April 2003.

Even though the bill is going to pass, I think it worth mentioning the case of Julie Hogg to demonstrate the merit and importance of this reform. Unfortunately, she was killed in the UK by Billy Dunlop, a person the press dubbed the 'Billingham Monster', in November 1989. Two trials in 1991 found Dunlop not guilty. In gaol he confessed, somewhat later, thinking he was safe to do so thanks to the double jeopardy laws that prevailed. The UK parliament had other ideas and retrospectively changed the law so Dunlop could be charged again. Dunlop was convicted of murder in September 2006, and he was the first person to be successfully charged retrospectively, free of the interference of double jeopardy laws. The Dunlop case illustrates the clear cause of justice for victims and their families to ensure that criminals do not get away with their crimes.

I do think it would assist honourable members of the chamber, and indeed the public, for the government to outline the kinds of scenarios where double jeopardy will remain available, such as the previous conviction scenario I have just outlined. In short, Family First indicates support for the second reading and likely support for the passage of this bill.

Debate adjourned on motion of Hon. B.V. Finnigan.

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