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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-29 Daily Xml
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CRIMINAL LAW CONSOLIDATION (DOUBLE JEOPARDY) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 9 April 2008. Page 2375.)

Clause 1.

The Hon. A. BRESSINGTON: There are many worthwhile considerations in this bill, but just as many cause me equal discomfort. I accept that the double jeopardy rule has served to keep some criminals from serving their due time. Victims of serious crimes should never find themselves in a situation whereby the offender is able to walk free or be shielded from the full impact of the law.

Child murderers and sex offenders immediately come to mind as the predatory and deceitful behaviour of those criminal elements may make it particularly difficult to secure appropriate gaol sentences. The legal variables that can turn a case on its head are endless in highly complex cases such as these, and justice all too often may come to no-one—the alleged victim or the accused. However, there is a flip side to this debate which was best articulated by the Hon. Stephen Wade in his address, which I believe is worth repeating. He said:

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.

There are endless examples of legal injustices against citizens not just in other states or other countries, as many of us would like to believe, but countless within the state itself. Members may recall the 1982 case of the Perth Mint swindle. It was a case involving the three Mickelberg brothers, who were finally vindicated by the confessions of a corrupt police officer, Sergeant Tony Lewandowski, that he and a Perth CIB detective, Sergeant Don Hancock, framed the Mickelbergs by planting evidence and forcing their confessions.

Theirs is not a fictitious story nor one that originates from a Hollywood plot. Their story was published at considerable personal risk and heavy personal and financial cost to the author of The Mickelberg Stitch and Split Image, Avon Lovell. Mr Lovell was central to obtaining Lewandowski's signed confession. Media reports suggest that crooked officers at the core of the three Mickelberg injustices now sit in very high offices as ministers, politicians and bureaucrats.

Meanwhile, two of the Mickelberg brothers, Peter and Ray, ended up spending over six years in prison after alleged forensic evidence was planted, including a fingerprint and a fabricated identikit picture. It is interesting that that fingerprint was obtained by making a synthetic finger and transposing the fingerprint of one of these brothers from another—how ever it was collected—onto a piece of evidence. That just goes to show the length that some people will go to continue to pursue people if they want a conviction. Hancock eventually retired from the Criminal Investigation Bureau in 1996 and was the sole suspect in the murder of a Gypsy Joker bikie.

By 2000, Hancock had been killed in a car bomb, finally enabling Lewandowski to clear his conscience and testify to the truth of the Mickelbergs' pleas of innocence. Avon Lovell advised my office that Lewandowski had stated that Brian Mickelberg's acquittal after a 10 month gaol sentence was merely the result of the fact that he and Hancock had not worked up enough false evidence against Brian as they had managed to manufacture against his brothers, Peter and Ray.

This case and other similar examples of corrupt legal processes merely highlight how far unaccountable authorities can and will go to abuse their powers of authority, access to publicly funded resources and high office when it suits a particular legal, political or administrative agenda. We all know of many similar cases in this state brought before this and the other place, and they are included in Dr Robert Mole's books A State of Injustice and Losing Their Grip: the Case of Henry Keogh. We know of the extreme reluctance by the Attorney-General and the Solicitor-General to remedy what has clearly proven to be a gross injustice to many possibly innocent people at the centre of the stories contained in these books, the truth about which by now, with the passage of time, the destruction of vital corroborative evidence and multiple layers of dishonest submissions by the Crown and so-called expert witnesses, we may never truly know.

When considering extending the ambit of the criminal law in relation to double jeopardy, it is important that we should be assured that any new powers granted to prosecutors will be fairly and properly applied. The best way to determine whether that will be so is to look at their conduct to date. One might take as an example the duty of disclosure. The current Deputy Director of Public Prosecutions, Mr Martin Hinton QC, the Solicitor-General, Mr Chris Kourakis QC (who has undertaken prosecutorial duties on behalf of the Director of Public Prosecutions Office), and the former director of public prosecutions, Mr Paul Rofe QC, have all written and published articles on this topic.

Mr Martin Hinton QC, Deputy Director of Public Prosecutions for South Australia, wrote the following in Unused Material and the Prosecution's Duty of Disclosure, Criminal Law Journal, June 2001:

The prosecutor owes a duty to an accused to make adequate disclosure of all material which is in the possession of the prosecution that is relevant to the issues to be tried and any possible defence irrespective of whether the prosecution intends to use that material as part of its case.

Mr Chris Kourakis QC stated the following in his address as President of the Law Society in the Law Society of South Australia Bulletin, Volume 24, number 6, July 2002:

...a fair trial is so dependent on the exercise of prosecutorial duties of fairness which are inscrutable and not subject to any judicial control.

Mr Kourakis continued:

...an accused's right to fair disclosure is an inseparable part of his or her right to a fair and trial. If an accused has been prevented by 'malpractice or misfortune' from presenting at his trial evidence of substantial importance, he or she has been deprived of his or her right to a fair trial.

Mr Kourakis specifically approved of Mr Hinton's article, and he also approved of the Royal Commission on Criminal Justice, which, he said in 1993, recommended a two-stage process. The first was an automatic step whereby the prosecution provided copies of 'all material relevant to the office or the offender or to the surrounding circumstances of the case, whether or not the prosecution intend to rely upon that material'.

On 11 April 1996, Mr Paul Rofe QC, then DPP, in Disclosure by Both Sides, stated:

The prosecution policies of all directors of public prosecution recognise the duty of the prosecution to disclose all information in its possession relevant to the guilt or innocence of an accused person. Each of the above persons has been involved in the case of Mr Henry Keogh, Mr Rofe QC as prosecutor at his trials; Mr Hinton QC in recent applications by Mr Keogh to the Supreme Court and the High Court; and Mr Kourakis QC as the person appointed by the Attorney-General to undertake a review of the matter following upon Mr Keogh's petitions to the Governor of South Australia.

Each of them must therefore be aware that the medical history of the deceased, Miss Anna-Jane Cheney, has never been disclosed to the lawyers for Mr Keogh. It was directly relevant to his defence because the prosecution made very clear statements to the jury that up until the time of her death Miss Cheney was a 'fit and healthy person'. They did not disclose that she had 37 medical consultations with 12 different medical advisers in the five years prior to her death. Hinton, Kourakis and Rofe all know that the circumstances of those consultations have never been disclosed to Mr Keogh's legal advisers and they also know that such conduct offends against what they themselves describe as the most basic duty of the prosecutor.

In relation to the photographs produced at Mr Keogh's trials, they are each aware that the photographs failed to disclose the identity of the person in the photograph. Undoubtedly, the photographs were important to the prosecution case. Hinton, Kourakis and Rofe would each be aware of the fact that a photographic print is not probative of facts in issue unless its provenance can be established by reference to the photographic negative. Each of them would be aware that at no time has the prosecution made available to Mr Keogh's lawyers the negatives of those and other photographs in question.

In relation to the most basic duty of the prosecutor, in one of South Australia's most notorious criminal cases, three of South Australia's leading QCs, who have each had direct involvement in this case, have each failed to comply with that duty. Until they correct such an obvious and blatant failure, why would we entrust them with even greater powers than they already have?

This bill in its current form has many ramifications that, once done, will be difficult, if not impossible, to undo, and further community debate and discussion is needed, including both the legal and forensic professions, on greater safeguards which could be put in place to protect innocent citizens from wrongful prosecution.

I have many constituents who come to my office claiming injustice, and people who have been battling the system for years seem to believe that a newly elected member can somehow break through the stonewall that is in place, wave a magic wand and somehow fix all of it. This, of course, is rarely, if ever, the case. We can, however, be their voice in this place and, when sufficient documentation is provided, raise their grievances when the opportunity arises or even create an opportunity if the evidence is compelling.

Some of these people have been harassed, victimised, persecuted and followed around for years in an effort to have them retried or tried in different circumstances on cases that they have actually been acquitted of. This still leaves them with the opportunity for us to create a voice for them. It leaves them with little recall, but at least they feel validated and, when falsely accused or pursued in order for the system to be right, they can find some level of comfort in knowing that someone actually believes them.

It was Voltaire who said, 'It is dangerous to be right when the government is wrong', and it was Arthur Schopenhauer, a 16th century German philosopher, who said, 'All truth passes through three stages: firstly it is ridiculed, secondly it is violently opposed and thirdly it is accepted as being self-evident.'

So, injustice is nothing new, and fear of taking on the government was truly alive and well even in Voltaire's time. Therefore, it is fair to assume that we did not come into laws such as double jeopardy, the rights of habeas corpus, trial by jury or the abolition of the Star Chamber simply by accident. These were reforms from the value of insight, hindsight and evolution to set right the imbalance created by the elite regimes who would control rather than rule or govern for the greater good, and we must take great care when we rewrite laws that were established to protect the average citizen against such regimes.

As humans we are a fickle lot, and this is now, more than ever, demonstrated by the ability of the media to sell a story to the public, be it right or wrong, truthful or not, and create so much confusion that the average citizen finds it more than impossible to form an opinion. This creates a level of apathy and the phenomenon of group thinking that prevents any kind of public dissent in the search for justice. It is this human flaw that concerns me in conjunction with this amendment to this bill.

Hitler was able to dispose of millions with little resistance by creating the 'reality' that the Jews were in fact a subhuman race. In his endeavours he is quoted as saying, 'It is easier to believe a lie than it is to believe the truth, and the bigger the lie the easier it is to believe.' In fact, we see all too often how the views of the minority can be interpreted as majority thinking simply because of issues that the media are either sympathetic to or not.

Already I see the danger where people have forgotten to ask questions. Now it seems that it is all too much to seek the truth or to stand by a conviction when it is not popular. It is seen all too often as agreement, when in fact the silent majority stay silent because they can find themselves in all sorts of trouble if they do speak out. This group thinking is almost hypnotic, where people will chant slogans because it is easier than opposing. It is my concern that this bill gives too much power to too few and, as I said, once done it will be impossible to undo.

Progress reported; committee to sit again.


At 18:06 the council adjourned until Wednesday 30 April 2008 at 14:15.


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