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*BBus (Accy)(Dist)/BLaws (Hons), GradDipLegalPrac, LLM (QUT), Associate Lecturer, School of Law, Faculty of Law, Queensland University of Technology.
AbstractThe public outcry with the outcome of R v Carroll[1] has induced the revision
of the double jeopardy rule in NSW and Queensland. In particular, NSW has put forward the Criminal Appeal Amendment (Double Jeopardy) Bill 2003
(NSW) and Queensland has a discussion paper that was drafted by the Model Criminal Code Officers’ Committee. The construction of these two documents is similar, but neither of them addresses the public’s dissatisfaction because they would not remedy the Carroll case, nor cases where there are advances in DNA technology after a person is acquitted.
Part III considers the Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW), which proposes to limit the application of the double jeopardy rule in NSW. In particular, this Bill allows persons acquitted of very serious offences to be retried once where there is fresh and compelling evidence — for example, DNA evidence — and where the retrial is in the interests of justice. It is noted in this article that, while the process of reinvestigating cases and obtaining a retrial will be challenging because the Bill provides safeguards to acquitted persons, the retrospectivity of the Bill will erode the rights of acquitted persons.
Part IV discusses Queensland’s effort to review the double jeopardy rule. In particular, the Queensland Attorney-General, the Honourable Rod Welford, assigned the reform of the double jeopardy rule to the Standing Committee of Attorney-General (SCAG). SCAG referred the matter to its Model Criminal Code Officers’ Committee (MCCOC), which prepared a discussion paper on this issue. This article considers the main safeguards provided to acquitted persons and notes that the retrospective application of the reforms would erode the rights of acquitted persons.
Part V considers whether the reforms proposed in the Bill and the MCCOC discussion paper would address the public’s dissatisfaction with the double jeopardy rule and how they would impact on the outcome of the Carroll case. It also recommends that the wording of the definition of ‘fresh’ evidence be changed to allow at the retrial a new interpretation of evidence originally put forward at the first trial. This would remedy the Carroll case and cases where there are advances in DNA technology after a person is acquitted.
Part 6 of this article considers whether DNA evidence has been useful in solving crimes in NSW and Queensland. In particular, the infallibility of DNA evidence is questioned. Also, this article considers whether many cases are likely to be reopened and acquitted persons retried as a result of DNA evidence.
In Carroll, a 17-month-old baby named Deidre Kennedy was found dead on the roof of a toilet block in Ipswich on 14 April 1973. She had been abducted, dressed in women’s underwear, sexually abused and strangled. A human bite mark was found on Deidre’s left thigh and a pubic hair was found on her body.
Carroll became a prime suspect when his former wife advised John Reynolds, a former constable at the Ipswich police station, that Carroll used to bite his daughter on the legs. Forensic technology was used to match Carroll’s teeth with the bite mark found on Deidre’s leg. ‘A plaster cast was made of Carroll’s teeth. Transparent plastic was placed over the cast and the biting edges of his teeth were marked up. The plastic was then lined up with the photograph of the bite mark on Deidre Kennedy’s thigh.’[3] Hair samples were taken from Carroll, but the hair analysis was unsatisfactory.
On 14 March 1985, Carroll was convicted of murdering Deidre Kennedy in a jury trial before Vasta J in the Supreme Court of Queensland. Carroll appealed his conviction. On 27 November 1985, the Court of Criminal Appeal of Queensland quashed Carroll’s murder conviction because the forensic evidence was unsafe and unsatisfactory. On an ABC television programme about the case, police investigator John Reynolds commented:
The appeal judges found there were areas of disagreement between the experts on vital matters. The appeal court stated that the forensic experts were different in their opinions, and so their forensic expertise could not be trusted. The difference in their expertise was all three said he was the murderer but they varied in different degrees of identifications.[4]
Dr Alex Forrest, a forensic odontologist, compared Carroll’s teeth with the bite marks found on Deidre Kennedy’s thigh.[5] Dr Forrest believed that the decision of the Court of Criminal Appeal of Queensland in 1985 was correct given that the forensic evidence at that time was incorrect. The forensic evidence at that time applied Carroll’s top teeth to the part of the bite mark created by the bottom teeth and vice versa.
Forensic odontology developed dramatically in the ten year period following Carroll’s acquittal of Deidre Kennedy’s murder. ‘Using pink dental wax, [Dr] Forrest first created a bite mark using the cast of Carroll’s teeth. This impression was then computer simulated.’[6] The new forensic odontology techniques looked at the shape and position of the teeth and the wounds that they made when they were dragged across tissues. Dr Forrest described the new techniques as ‘looking at the sort of barcode made by scraping teeth’.[7] He claimed that the match between Carroll’s teeth and the bite mark was very significant; in fact:
It was apparent to us, as we looked at the evidence and got more involved with our interpretation of it, that we were looking at a serious injustice, and this was an opportunity to redress something that, in some respects, occurred because of forensic dentistry.[8]
Consequently, Dr Forrest and his colleagues valued the importance of the advances in technology and their impact on the outcome of the case. This is something that Richard Ackland neglected to do when he said:
as to future cases, now that we have DNA technology to hand, it is difficult to conjure a situation where that technology would not be used in the forensic hunt for the truth. Why would DNA only become compelling after the event when it is already one of the available tools?[9]
There is no question that DNA technology would be used to seek out the truth in a case at the time of the first trial, but the point is that with the benefit of future DNA technology, the outcome of the first trial may be different. As Dr Forrest indicated above, this may lead to a serious injustice given the double jeopardy rule.
The Court of Criminal Appeal of Queensland’s decision to acquit Carroll on the murder charge provided closure to Carroll. If the Director of Public Prosecutions (DPP) had retried Carroll with murder or manslaughter, Carroll would have been able to successfully raise the double jeopardy defence pursuant to sections 17 and 576 of the Criminal Code Act 1899 (Qld).
In an effort to circumvent the double jeopardy rule, the DPP charged Carroll with perjury by arguing that he lied during the murder trial when he gave testimony that he did not kill Deidre Kennedy. Speaking for the Queensland Law Society, Sean Reedy criticised the use of perjury proceedings, saying that the DPP appeared to be relitigating the same matter twice.[10] The defence made an application before Muir J that the perjury trial should be stayed because the perjury proceedings constituted an abuse of process. Justice Muir held that there was no breach of the double jeopardy rule and that the perjury proceedings did not amount to an abuse of process because the new evidence was strong and different to the evidence put forward at the murder trial.[11] On 2 November 2000, Carroll was convicted of perjury in a jury trial before Muir J in the Supreme Court of Queensland. However, the Court of Criminal Appeal of Queensland held that the perjury trial should have been stayed as an abuse of process because the rule of double jeopardy had been substantially breached.[12] The Court of Criminal Appeal of Queensland held that the conviction for perjury should be set aside and that an acquittal should be entered. The Crown was granted special leave to appeal to the High Court, but the appeal was dismissed.
In the High Court, Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ agreed that s 17 of the Criminal Code Act 1899 (Qld) did not apply. There was closure in the first trial: that is, Carroll was acquitted of murder in the Court of Criminal Appeal of Queensland. However, perjury is not an alternative verdict of murder. This means that during the murder trial, it was not possible to find Carroll guilty of perjury. Also, during the perjury trial, it was not possible to find Carroll guilty of murder. This meant that Carroll could not be successful in raising the double jeopardy defence pursuant to s 17 of the Criminal Code Act 1899 (Qld).
McHugh J construed s 17 of the Criminal Code Act 1899 (Qld) to exhaustively provide the circumstances in which an accused can raise the double jeopardy defence. However, His Honour maintained that s 17 of the Criminal Code Act 1899 (Qld) did not impede the Supreme Court of Queensland’s inherent jurisdiction to stay proceedings on the basis of an abuse of process. His Honour noted that the Supreme Court of Queensland has ‘all the jurisdiction that is necessary for the administration of justice in Queensland’.[13] This jurisdiction is very wide and would encapsulate staying proceedings on the basis ‘that they infringe the double jeopardy principle and constitute an abuse of process’.[14] This meant that if Carroll was convicted of perjury, it would overturn or undermine Carroll’s acquittal for murder.[15] The subsequent perjury proceedings put at risk the closure of the acquittal for murder, and therefore the subsequent perjury proceedings were an abuse of process. McHugh J asserted that even if totally new evidence were presented at the perjury proceedings, there would still be an abuse of process.[16]
Similarly to McHugh J, Gaudron and Gummow JJ claimed that the argument for making an exception to double jeopardy just because there was new evidence ‘lacked cogency’[17] and would deprive the double jeopardy rule of much of its content. Their Honours explained that the perjury proceedings were ‘vexatious or oppressive in the sense necessary to constitute an abuse of process; in substance there was an attempt to relitigate the earlier prosecution’.[18] Gleeson CJ and Hayne J also agreed that ‘once such manifest inconsistency appeared, then the case for a stay was irresistible’.[19]
The double jeopardy rule does not permit the retrial of acquitted persons for the same or similar offences arising out of the same factual situation. It treats acquittals as being unquestionable. Consequently, it encourages the efficient operation of the criminal justice system and efficient use of community resources because the same cases are not repeatedly brought before the courts.[21] Double jeopardy also ‘underpins the authority of the courts by avoiding the embarrassment of inconsistent verdicts on the same issue.’[22]
Another efficiency argument for maintaining the double jeopardy rule is that it requires the police to conduct competent investigations before the first trial because it prevents the retrial of an acquitted person.
Another argument for maintaining the double jeopardy rule is that it ‘acts as a curb on the unfettered power and resources of the State, stopping it from being a persecutor rather than a prosecutor’.[23] The abolition of double jeopardy would enable governments to use prosecutions against certain citizens that they hate.[24] The state has access to more resources and has more power than ordinary citizens. ‘[P]eople are at a huge disadvantage with DNA evidence, because they often lack the resources to match the police technology and they don’t have access to the crime scene, so they cannot test the evidence.’[25] Double jeopardy represents a ‘practical balance between the power of the State and the rights of the individual’.[26]
Double jeopardy also represents a practical balance between truth and justice. In a recent double jeopardy case in the High Court of Australia, Gleeson CJ and Hayne J quoted Lord Wilberforce:
any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility, and having reached that solution, it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty, and security, it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: those values cannot always coincide.[27]
Closing the book allows the acquitted person and his or her family to move on without being hounded for the rest of their lives.[28] The acquitted person would be psychologically distressed if their acquittal was quashed and they were retried. Corns argues that the psychological distress ‘outweighs the possibility of securing a conviction at a second attempt’.[29] However, such an argument is academic: it would be difficult to measure the psychological distress to the accused or place a value on a truthful conviction, let alone make a comparison between the two and prove that one outweighs the other.
Apart from the question of the psychological distress that the acquitted accused would suffer, it is essential that the acquitted accused receive a fair second trial. This may be impossible given that double jeopardy cases like Carroll have tended to be high profile and in the public eye for many years. Further, if an acquittal has been quashed, the accused is less likely to be presumed innocent at the retrial.
Despite there being many arguments in favour of the double jeopardy rule, there are also many arguments for amending its application. One argument is that there is a public interest in ensuring that criminals are convicted of the offences they commit.[30] This public interest is not always satisfied because of support for Blackstone’s maxim, ‘it is better that ten guilty persons escape than that one innocent person suffer’[31] — a maxim that recognises that innocent persons need to be protected. It has been submitted that the chances of an innocent person suffering from a wrongful conviction are increased with a retrial because the DPP would become more familiar with the defence’s arguments at the first trial.[32] Against this it can be argued that whether an innocent person suffers from a wrongful conviction or a guilty person escapes a truthful conviction, public confidence in the Australian criminal justice system diminishes. Further, if a guilty person escapes a truthful conviction, there is no justice or closure for the victim or the victim’s family. Finding truthful convictions is reason to amend the application of the double jeopardy rule and allow a retrial.
Another reason for amending the application of the rule is to allow it ‘to catch up with advances in forensic science’.[33] Advances in DNA technology enable better DNA evidence to be available. Consequently, better DNA evidence may arise after a person has been acquitted of an offence at a trial. The double jeopardy rule prevents the retrial of an acquitted person. As a result, the better DNA evidence cannot be used. However, this argument for changing the application of the double jeopardy rule because of advances in technology is tenuous given that developments in fingerprint technology were not a catalyst for such changes.[34]
The double jeopardy rule has been criticised as out of date because it dates back to the 12th century.[35] However, this argument is unconvincing because at the same time this rule has been supported for being a longstanding and major underpinning of our criminal justice system. The age of the rule is not overly relevant. The main question to be asked is, ‘Does the double jeopardy rule meet the community standards?’[36] But it is easier to ask the question than to measure community standards. Some members of the community have expressed dissatisfaction with the double jeopardy rule partly due to the outcome of Carroll,[37] a high profile case that has been adversely publicised in the media.
The upshot of this community dissatisfaction is that the double jeopardy rule is being reviewed in Queensland and NSW and is unlikely to be maintained in its current form. However, the rule is unlikely to be abolished altogether because it is of long standing and serves to protect acquitted persons. It is more likely that the application of the rule will be amended to reach a balance between the arguments for and against.
Main Safeguards of the Bill
In summary, the main safeguards provided by the Bill to acquitted persons are as follows.
(1) Only one retrial is allowed.
(2) The offence must be a very serious offence.
(3) The DPP must consent to re-investigations.
(4) The DPP must apply to the Court of Criminal Appeal for a retrial.
(5) The evidence must be fresh and compelling and not just new.
(6) The retrial must be in the interests of justice. These safeguards will be looked at in turn. 1 Only One Retrial Is Allowed
Section 9A of the Bill allows an accused who has been acquitted to be retried. This departure from the double jeopardy rule will continue to encourage the efficient operation of the criminal justice system because a case will not be constantly brought before the courts: only one retrial is allowed.[38] By allowing only one retrial, the Bill prevents the State from being a persecutor and curbs the resources of the State. As a result, the acquitted person and his or her family cannot be hounded for the rest of their lives and they would obtain closure after the retrial.
By allowing a retrial, the Bill helps to ensure that criminals are convicted of offences they commit. However, it also increases the chances of convicting an innocent person because the DPP would become familiar with the defence’s arguments at the first trial.
The president of the Council for Civil Liberties, Cameron Murphy, criticises the idea of the retrial because it is ‘likely to encourage sloppy policing’[39] in the investigation before the first trial. However, the drafters of the legislation have taken this into account by allowing a retrial only if there is ‘fresh and compelling’ evidence and if the Director of Public Prosecutions consents to further investigation. 2 The Offence Must Be A Very Serious Offence
To safeguard the rights of acquitted persons, s 9A of the Bill allows a retrial only where the person has been acquitted of a ‘very serious offence’. Very serious offences are murder, manslaughter and offences punishable by life imprisonment.[40] This means that accused persons who have been acquitted of offences that are not very serious will be free, as the double jeopardy rule will operate and prevent them from being retried.
The Bill covers only very serious offences, in an effort to minimise the impact of the departure from the double jeopardy rule. As mentioned above, this rule dates back to the 12th century and is a major underpinning of the criminal justice system in NSW and Queensland. Any departure from it represents an erosion of the rights of acquitted persons. 3 The DPP Must Consent to Reinvestigations
The Bill does not automatically allow a retrial. It contains safeguards to protect acquitted persons; for example, the DPP must consent to a further investigation.[41] The DPP would give such consent only if fresh and compelling evidence is likely to arise or if it is in the public interest.[42] By appointing the DPP as a gatekeeper, the Bill requires competent police investigations to occur before the first trial. It encourages efficiency and does not provide a remedy for sloppy policing. 4 The DPP Must Apply to the Court of Criminal Appeal for a Retrial
In addition to the DPP being a gatekeeper over further investigations, the Court of Criminal Appeal is a judicial gatekeeper over applications for retrials, because the DPP must apply to the Court of Criminal Appeal for a retrial.[43] The DPP must make this application within two days after an acquitted person is charged.[44] This judicial gatekeeping role is important because numerous inconsistent verdicts would be embarrassing to the courts and the criminal justice system. Another reason for insisting upon a judicial gatekeeping role is that if the Court of Criminal Appeal quashes an acquittal, the accused is less likely to be presumed innocent at the retrial.
Before allowing a retrial, the Court of Criminal Appeal must consider whether there is ‘fresh and compelling evidence against the acquitted person in relation to the offence’[45] and whether ‘in all the circumstances it is in the interests of justice for the order to be made’.[46] The NSW Legislation Review Committee recognised that the standard of proof to be used by the Court of Criminal Appeal when deciding whether to allow a retrial should be high enough to prevent the groundless erosion of rights of acquitted persons but ‘should not be so high that the Court of Criminal Appeal is perceived to be influencing the final decision on conviction or acquittal, which would impinge upon the right to trial by jury’.[47] Consequently, the wording of the Bill is crucial. 5 The Evidence Must Be Fresh and Compelling and Not Just New
The Bill requires the evidence to be ‘fresh’. In an effort to decrease the varying judicial interpretations of the term ‘fresh’, it has been defined in the Bill. The term ‘fresh’ connotes evidence that ‘was not adduced in the proceedings in which the person was acquitted and … could not have been adduced in those proceedings with the exercise of reasonable diligence’.[48] The drafters of the Bill have thus attempted to restrict the application of the double jeopardy rule so that evidence derived from advances in DNA technology can be utilised in a retrial.
The term ‘fresh’ has been used as distinct from the term ‘new’ because ‘fresh’ is much narrower in scope. Consequently, the use of the term ‘fresh’ as opposed to the term ‘new’ is unlikely to reprieve sloppy policing because a second trial will not be allowed if the evidence was merely overlooked at the first trial.
The University of NSW (UNSW) Council for Civil Liberties have suggested that the term ‘reasonable diligence’, which is contained in the definition of ‘fresh’, is insufficient because it will encourage ‘sloppy investigation and prosecution’.[49] They suggest that a higher standard of diligence be required, ‘given the resources and power of the state’.[50] The effect of increasing the standard of diligence will be to reopen fewer cases and help to safeguard the rights of the acquitted accused.
‘Fresh’ and ‘reasonable diligence’ are not the only terms to be criticised; the term ‘compelling’ has also been attacked. Section 9D of the Bill defines evidence as ‘compelling’ if it is reliable, substantial and highly probative of the case against the acquitted person. The UNSW Council for Civil Liberties submitted that the term ‘highly probative’ is inadequate because the evidence should be more than ‘highly probative’. They suggest that the term ‘compelling’ should canvass evidence that ‘could likely have eliminated all reasonable doubt’.[51] Their submission would dramatically raise the standard of ‘compelling’ above that of ‘highly probative’. The effect of this submission is to safeguard the rights of the acquitted accused and not to reprieve sloppy policing. 6 The Retrial Must Be in the Interests of Justice
The Court of Criminal Appeal is restricted to only allowing a retrial if it is in the interests of justice. The term ‘interests of justice’ is a broad term that encompasses many factors. However, the drafters of the consultation Bill have made an effort to identify three factors that must be taken into consideration in determining whether a retrial of an acquitted person is in the interests of justice. These factors are: ‘(a) whether existing circumstances make a fair trial unlikely, (b) the length of time since the acquitted person allegedly committed the offence, [and] (c) whether the police officer or prosecutor has failed to act with reasonable diligence or expedition in connection with a retrial of the acquitted person.’[52]
Factor (b) requires the Court of Criminal Appeal to consider the time elapsed since the acquitted person committed the offence. This is an interesting factor because it attempts to mitigate the fact that there is no time limit within which the retrial must occur. However, despite the provision of factor (b), an acquitted person may be retried many years after the offence occurred. This severely impinges upon the rights of acquitted persons, yet is said to be done in the interests of justice. To counteract this, the NSW Legislation Review Committee recommended that a limit be introduced on the time between the offence and/or first trial and the application for a retrial.[53] This would help to alleviate the erosion of rights of acquitted persons because it would give them closure once the time limit expired.
Retrospectivity
The possibility of a retrial of offences that occurred many years ago is increased because the Bill is retrospective. Retrospective application of the Bill means that it will apply to offences that occurred prior to the commencement of the Bill. This represents erosion of the rights of acquitted persons because old cases may be reopened and persons acquitted of offences many years ago may be subjected to a retrial. On the other hand, the retrospective Bill offers the victim and/or the victim’s family the opportunity to secure a truthful outcome and closure.
The MCCOC recommends
that the laws on double jeopardy be changed so that a person acquitted of an offence would not be precluded by the rule against double jeopardy from being prosecuted for an administration of justice offence or the original or related offence in three circumstances:
1. prosecution for an administration of justice offence connected to the original trial,
2. retrial of the original or similar offence where there is fresh and compelling evidence, and 3. retrial of the original or similar offence where the acquittal is tainted.[55]
This article focuses upon the second circumstance because the ‘fresh and compelling evidence’ exception to the double jeopardy rule is harder to justify.[56]
The MCCOC considered the submissions in February 2004 and released a report in March 2004. In a 22 March 2004 press release, the Justice Minister said ‘[w]hilst the Commonwealth, Queensland, NSW and Western Australia agreed that fresh and compelling evidence could provide an exception to the double jeopardy rule in strict circumstances, the remainder of the States and Territories could not agree on this issue.’[57] The SCAG was to meet again in July 2004.
Main Safeguards of the MCCOC Proposal
The MCCOC proposals to reform the double jeopardy rule are very similar to the NSW consultation draft Bill. In particular, one of the recommendations in the MCCOC discussion paper permits a retrial of the original or a similar offence if there is fresh and compelling evidence. Pursuant to the MCCOC’s proposal, the main safeguards provided to the accused are:
(1) only one retrial is allowed (2) the offence must be a very serious offence (3) the DPP must consent to reinvestigations (4) the DPP must apply to the Court of Criminal Appeal for a retrial (5) the evidence must be fresh and compelling and not just new (6) the retrial must be in the interests of justice. 1 Only One Retrial Is Allowed
Identically to the NSW Bill, the MCCOC discussion paper allows only one retrial.[58]
Legal Aid Queensland submits that ‘[t]he “closure” argument is based on the assumption that the system will infallibly be able to identify and remedy unwarranted acquittals by one re-trial.’[59] Legal Aid Queensland also suggests that allowing one retrial is a compromise between closure and the production of fresh and compelling evidence as a result of new science.[60] 2 The Offence Must Be A Very Serious Offence
There is a major difference in the definition of the term ‘very serious offence’. Under the NSW consultation draft Bill the term ‘very serious offence’ means murder, manslaughter or other offences punishable by imprisonment for life. The term ‘very serious offence’ in the MCCOC’s discussion paper proposal is much broader and means ‘any indictable offence punishable by imprisonment for life or for more than a period of 15 years or more’.[61] Consequently, the MCCOC’s proposal requires a lesser penalty threshold and would enable more acquitted persons to be retried. This represents a greater impingement upon the rights of acquitted persons. The MCCOC considers that an even lower penalty threshold could not be justified because it would represent a significant departure from the double jeopardy rule.[62] The Law Council of Australia submits that the definition of ‘very serious offence’ in the MCCOC ‘is arbitrary and would operate in an uneven manner across jurisdictions’.[63]
In its subsequent report (March 2004) the MCCOC agreed that the fresh and compelling evidence exception should apply to ‘murder, manslaughter and such serious drug offences that attract life imprisonment under the Model Criminal Code’ and was ‘inclined to think that the list should also include the most aggravated forms of rape and armed robbery.’[64] However, the MCCOC recognised that the elements and penalties of offences in the States and Territories may be different and that this would cause problems for uniform double jeopardy reforms.[65] 3 The DPP Must Consent to Reinvestigations
Identically to the Bill, the MCCOC discussion paper requires the DPP to consent to a further investigation.[66] The DPP would give such consent only if sufficient new evidence is likely to arise or if it is in the public interest.[67] 4 The DPP Must Apply to the Court of Criminal Appeal for a Retrial
Akin to the Bill, the MCCOC discussion paper selects the Court of Criminal Appeal as a judicial gatekeeper over applications for retrials: that is, the DPP must apply to the Court of Criminal Appeal for a retrial.[68]
The MCCOC supports the use of the DPP as a gatekeeper to authorise re- investigations because ‘[m]odern criminal trial reform initiatives emphasise the need for a closer alliance between investigating police and prosecutors’.[69] Also, there is no need to appoint another judicial gatekeeper because the Court of Criminal Appeal would have a filtering role.[70]
Legal Aid Queensland is concerned acquitted persons are not protected considering that the public is likely to know that the Court of Appeal has decided that a strong case exists.[71]
The MCCOC discussion paper required the DPP to apply to the Court of Criminal Appeal (CCA) within two days after an acquitted person is charged.[72] The subsequent MCCOC report recommends that the two day period be extended to 10 days and that the DPP be able to apply to the CCA for leave to extend the 10 day period.[73]
In addition, the MCCOC thought that ‘a time limit should be placed on appeals against acquittals. That limit should be 28 days with a power to apply to the CCA for leave to extend the period.’[74] 5 The Evidence Must Be Fresh and Compelling and Not Just New
It is interesting to note that the definitions of ‘fresh’ and ‘compelling’ are identical in the NSW consultation draft Bill and the MCCOC’s proposal.[75] Legal Aid Queensland suggests practical difficulties: it cannot be predicted ‘how and when new forensic techniques will be available, nor even the sorts of physical items which might, in future, reveal evidence. This has implications for the preservation of exhibits and files, if not crime scenes’.[76] Preserving exhibits, files and crime scenes may result in an ‘unsound use of community resources’.[77] Legal Aid Queensland questions what will happen if ‘fresh and compelling’ evidence arises after a retrial.[78]
Legal Aid Queensland concedes that police officers are generally devoted in their investigations and are unlikely to become sloppy if the law is reformed to allow a retrial where there is fresh and compelling evidence.[79] Legal Aid Queensland are, however, concerned that an investigation before the first trial may not be conducted with reasonable diligence because of inadequate funding.[80] 6 The Retrial Must Be in the Interests of Justice
The MCCOC’s definition of the term ‘interests of justice’ is similar to that in the NSW consultation draft Bill but much more verbose and perhaps more comprehensive.[81] The additional matters for consideration under the MCCOC proposal are ‘the objective seriousness of the facts of the case, whether the person was acquitted before or after the commencement of this Division’.[82] The MCCOC proposal specifically takes into consideration the time since the acquitted person allegedly committed the offence or was acquitted, whereas the Bill only specifically takes into consideration the length of time since the acquitted person allegedly committed the offence. Perhaps this difference is trivial given that the time of the offence must be earlier than the time of the acquittal. It also appears that the drafters of the Bill intended to take into consideration the time since the acquittal.[83]
Retrospectivity
Despite the above safeguards provided to acquitted persons, the discussion paper recommends the retrospective application of the reforms to double jeopardy. This is consistent with the Bill. Legal Aid Queensland submits that ‘the persistent threat of re-investigation ... pose[s] a heavy burden on the acquitted’.[84] The MCCOC was unpersuaded by the submissions against retrospectivity because ‘(a) the whole idea of the proposals entails revisiting what has gone before and (b) the proposals do not entail changing the law of liability — merely exposure to it’.[85] Consequently, the MCCOC Report March 2004 recommends the reforms be retrospective.
In addition to bite mark evidence, there was pubic hair evidence. A pubic hair was obtained from Deidre Kennedy’s body during investigations before the murder trial, which was the first trial. The pubic hair evidence was ‘destroyed in a laboratory bungle’[86] and was not conclusive in the first trial. Justice Michael Kirby asserts that if the pubic hair was preserved, DNA evidence could today ‘conclusively state whether the hair came from Mr Carroll or not.’[87] Given this, it must be determined whether the Bill and MCCOC-proposed reforms achieve their purpose and enable a retrial where DNA evidence is available after an acquittal.
Assume that the pubic hair was obtained before the first trial and adduced in that trial, but DNA technology was not advanced enough to conclusively prove that the pubic hair came from the accused. Consequently, the accused was acquitted of an offence. Assume that DNA technology improved over time and eventually could conclusively prove that the pubic hair came from the accused. What needs to be determined is whether the pubic hair evidence would constitute ‘fresh and compelling’ evidence under the Bill or the MCCOC proposal. As discussed above, both the Bill and MCCOC discussion paper define ‘fresh’ as ‘was not adduced in the proceedings in which the person was acquitted and … could not have been adduced in those proceedings with the exercise of due diligence’.[88] The pubic hair evidence was adduced in the first trial where the person was acquitted. Putting the DNA technology interpretation of the pubic hair evidence forward at a trial after a person is acquitted would constitute the reinterpretation of old evidence and would not be fresh evidence. Therefore, it would not meet the safeguard of ‘fresh’ evidence.
Further, the DPP would not be able to withhold such pubic hair evidence from the first trial, hoping that DNA technology would improve and would be able to conclusively prove that the pubic hair came from the accused. The reason to support this argument is that the definition of ‘fresh’ states that pubic hair evidence ‘could not have been adduced in those proceedings with the exercise of reasonable diligence’.[89]
In addition to being ‘fresh’, the evidence must be ‘compelling’. The pubic hair evidence that has been interpreted by DNA technology may not amount to ‘compelling evidence’ because it may not be ‘reliable, substantial and … highly probative of the case against the acquitted person’.[90] The reliability of DNA evidence must be questioned because of the number of cases in Queensland and NSW where DNA evidence has been bungled. The reliability of DNA evidence is discussed in more detail in part VI of this article.
The UNSW Council for Civil Liberties correctly identifies that Carroll is a Queensland case and that the Bill will not impact upon the outcome in Carroll.[91] It concludes that even if Carroll were a NSW case, it would not fall within the scope of the Bill. The reason for this is that the evidence relating to the bite marks presented at the perjury trial was not fresh evidence but merely a ‘reinterpretation of old evidence by a “fresh set of witnesses”’.[92] Also, the ‘new confession evidence [was] unreliable because it involved a jailhouse confession to which “no weight at all could be attached”’.[93] This means that the additional evidence put forward at the perjury trial would not meet the ‘fresh and compelling’ safeguard in the Bill. Further, the UNSW Council for Civil Liberties questions why the NSW Bill would be introduced, because there appears to be no NSW case that falls within the scope of the Bill.[94]
The reforms under the MCCOC discussion paper are just as ineffective as the Bill. The Law Council of Australia submits that the outcome of Carroll would not be affected by the ‘fresh and compelling evidence’ reforms.[95] Therefore, the need for the reforms as they are presently drafted should be questioned. Perhaps the discussion paper should be redrafted to address the public’s dissatisfaction with the double jeopardy rules and the outcome of the Carroll case.
Similarly, Legal Aid Queensland also submits that ‘the proposed reforms of the double jeopardy rule would have had no impact on the outcome in the Carroll case.’[96] They submit that there was no ‘fresh and compelling evidence’ found after Carroll was acquitted of murder. This means that the Carroll case does not satisfy the ‘fresh and compelling’ safeguard and the outcome of this case will be the same under the MCCOC discussion paper.
Consequently, the Bill and the MCCOC discussion paper will both be unsuccessful because they will not remedy the outcome of Carroll or cases where advances in DNA technology after a person is acquitted provide a reinterpretation of evidence put forward at the first trial. To address this, the definition of ‘fresh’ may be redrafted as evidence that:
(i) was not adduced in the proceedings in which the person was acquitted and could not have been adduced in those proceedings with the exercise of reasonable diligence, or (ii) was adduced in the proceedings in which the person was acquitted, but could be reinterpreted due to advances in DNA technology that have occurred since those proceedings.
The recommended wording of ‘fresh’ involves a wider departure from the double jeopardy rule. It would be more effective than the Bill or the MCCOC discussion paper at addressing Carroll or cases where advances in DNA technology after a person is acquitted provide a reinterpretation of evidence put forward at the first trial.
On the other hand, perhaps the current definition of ‘compelling’, in the Bill and the MCCOC discussion paper, is necessary to safeguard an acquitted person — especially given that, in a number of cases in Queensland and NSW, DNA evidence has been mismanaged or misinterpreted.
Service’s 2003–2004 Annual Report.[100] Further, 1219 people had been matched to DNA found at crime scenes.[101] This includes the DNA of 285 prisoners that was matched to unsolved cases.[102] In NSW, the police found 2842 hits on DNA databases where they had no other evidence.[103] DNA evidence has been used to convict people of offences as well as to overturn convictions.[104]
Despite the benefits of DNA evidence, it has costs. There are numerous examples of cases, in Queensland and NSW, where DNA evidence has been bungled. The use of DNA evidence is likely to be challenged on the following grounds:
(1) The handling of DNA samples has been attacked because they pass through several hands before the DNA analysis is finalised. To overcome this, each handler must be available as a witness at the relevant trial and must have followed the appropriate handling protocols to prevent contamination or fabrication.[105]
(2) The statistical calculations used to determine the weight of the DNA evidence have been questioned.[106] The two relevant statistics are the match probability and the likelihood ratio. The match probability ‘is the probability that a person other than the suspect, randomly selected from the population, will have the same profile as that found at the crime scene.’[107] The likelihood ratio ‘is the ratio of the probability of a match if the DNA in the crime scene sample and that from the suspect came from the same person, to the probability of a match if they came from different persons’.[108] Gans and Urbas advocate that ‘the risks of false and misleading results from DNA identification are not cause to reject its use by crime investigators, particularly where there is independent evidence about a suspect’s guilt or innocence.’[109]
However, Dr Atchison hopes ‘the DNA evidence only type of case will never reach a court’.[110] To address this issue, judges should caution juries when they evaluate the statistical calculations and DNA evidence.[111]
(3) Another challenge for DNA evidence is that identical twins have identical nuclear DNA.[112] This means that allowing a retrial on the basis of fresh and compelling evidence may result in the wrong twin being convicted of an offence.
(4) Conflicting expert interpretations of DNA evidence undermine its ‘veracity and credibility’.[113] To address this, the experts interpreting the results must have specialised knowledge and skill.[114]
(5) Juries have difficulties reconciling conflicting interpretations of the DNA evidence[115] and understanding the jargon.[116] However, the High Court has espoused that ‘juries are frequently called upon to resolve conflicts between experts’. Their Honours held that if a case involved difficult and sophisticated expert evidence, it should not automatically mean it was ‘beyond the capacity of the jury to resolve’.[117] To address this, juries should receive written information or watch a video explaining DNA evidence.[118]
(6) Using DNA evidence involves increased financial costs for forensic expertise, laboratory equipment and the management of information databases.[119] Any compromise in the quality[120] of these would result in a much greater cost to the community in the form of miscarriages of justice.[121]
Given the lack of certainty and uniformity in DNA analysis, the stringent definition of ‘compelling’ in the Bill and the discussion paper is justified to prevent innocent acquitted persons from suffering conviction at a retrial. After all, Blackstone’s maxim states, ‘it is better that ten guilty persons escape than that one innocent person suffer’.[122]
This article was written in June 2004. Between then and April 2005, the double jeopardy issue remained on SCAG’s agenda. Queensland, NSW, Western Australia and the Commonwealth agreed that an exception to the double jeopardy rule could be justified on the basis of fresh and compelling evidence, and the other states and territories disagreed with this. Despite the support from NSW and Queensland, the Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW) and the MCCOC proposals are not law in NSW or Queensland at April 2005. It is anticipated that if these two jurisdictions reform the double jeopardy rule, the laws in these two jurisdictions will be similar. As the states and territories cannot agree on the fresh and compelling exception to the double jeopardy rule, all states and territories are considering whether an exception is justified on the ground of a tainted acquittal. SCAG is meeting in July 2005 to consider the tainted acquittal exception to double jeopardy.
[1] [2002] HCA 55 (‘Carroll’).
[2] Ibid.
[3] SBS Television, ‘Double Jeopardy’, Insight programme 25 July 2002 <http://www.sbs.com.au/insight/archive.php3?archive=1&artmon=7&arty=2002#
> at 7 June 2004.
[4] ABC Television, ‘Double Bind’, Australian Story programme 7 April 2003 <http://www.abc.net.au/austory/transcripts/s820880.htm> at 7 June 2004.
[5] Ibid.
[6] SBS Television, ‘Double Jeopardy’, above n 3.
[7] ABC Television, ‘Double Bind’, above n 4.
[8] Ibid.
[9] Richard Ackland, ‘Backward Step Follows Advances’, Sydney Morning Herald, (Sydney), 14 February 2003.
[10] ABC Local Radio, ‘Case of Double Jeopardy in Queensland’, PM radio programme 5 December 2002 <http://www.abc.net.au/pm/stories/s741669.htm> at 7 June 2004.
[11] R v Carroll [2000] QSC 308, [65].
[12] R v Carroll [2001] QCA 394, [64], [72].
[13] R v Carroll [2002] HCA 55, [145] (quoting from Constitution of Queensland 2001 (Qld), s 58).
[14] R v Carroll [2002] HCA 55, [145].
[15] Ibid [147].
[16] Ibid [118].
[17] Ibid [113].
[18] Ibid [114].
[19] Ibid [42].
[20] Michael Friedland, Double Jeopardy (1969), 6.
[21] Chris Corns, ‘Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?’ (2003) 27 Crim LJ 80, 86.
[22] CE Colvin, S Linden and J McKechnie, Criminal Law in Queensland and Western Australia (3rd ed 2001), 678.
[23] Richard Yallop, ‘Split Verdict on Retrials’, The Australian 11 February 2003, 9.
[24] ABC Radio National, ‘Case of Double Jeopardy in Queensland’, above n 10.
[25] Yallop, above n 23, 9.
[26] Ibid.
[27] Lord Wilberforce in The Ampthill Peerage [1977] AC 547 at 569 quoted in R v Carroll [2002] HCA 55 [22].
[28] Paola Totaro, ‘Carr to End Immunity of Second Trial’, Sydney Morning Herald, 10 February 2003.
[29] Corns, above n 21, 86.
[30] Colvin et al, above n 22, 463.
[31] R v Carroll [2002] HCA 55; Blackstone, Commentaries (first published 1769, 1966 ed) 352.
[32] Corns, above n 21.
[33] ABC Television, ‘Double Bind’, above n 4.
[34] Ackland, above n 9.
[35] Honourable Justice Michael Kirby, ‘Carroll, Double Jeopardy and International Human Rights Law’ (2003) 27 Crim LJ 231, 232.
[36] David Nason and Scott Emerson, ‘Mason Joins Push for Review’, The Australian 13 December 2002, 1.
[37] R v Carroll [2002] HCA 55.
[38] Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW), s 9C(3).
[39] Totaro, above n 28.
[40] Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW), s 9B.
[41] Ibid s 9K(3).
[42] Ibid s 9K(4).
[43] Ibid s 9G.
[44] Ibid s 9G(2).
[45] Ibid s 9C.
[46] Ibid.
[47] Parliament of NSW Legislation Review Committee, Consultation Draft Bill – Criminal Appeal Amendment (Double Jeopardy) Bill 2003, Draft Report (2003) 8.
[48] Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW), s 9D.
[49] Roslyn Cook, Sharona Coutts, David Poole et al, Submission of the University of New South Wales Council for Civil Liberties to the NSW Attorney-General’s Community Consultation of the Draft Criminal Appeal Amendment (Double Jeopardy) Bill (2003) University of New South Wales Council for Civil Liberties 12 <http://www.nswccl.org.au/unswccl/issues/double%20jeopardy%20nsw.php> at 18 April 2005.
[50] Ibid.
[51] Ibid (emphasis in original).
[52] Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW), s 9(F)(2).
[53] Parliament of NSW Legislation Review Committee, Consultation Draft Bill, above n 47, 7. 54 Model Criminal Code Officers’ Committee of the Standing Committee of Attorneys-General (MCCOC), Discussion Paper – Model Criminal Code – Chapter 2 – Issue Estoppel, Double Jeopardy and Prosecution Appeals against Acquittals (November 2003) Australian Government Attorney-General’s Department <http://www.ag.gov.au/agd/WWW/rwpattach.nsf/viewasattachmentpersonal/(CF D7369FCAE9B8F32F341DBE097801FF)~0+Double+Jeopardy+discusion+paper. pdf/$file/0+Double+Jeopardy+discusion+paper.pdf> at 18 April 2005. 55 MCCOC, Double Jeopardy – MCCOC Report — March 2004 (2004) Australian Government Attorney-General’s Department <http://www.ag.gov.au/agd/WWW/rwpattach.nsf/personal/DF02560DFF8762DD
CA256E61007BC55B/$FILE/Double+Jeopardy+Report+25+Mar.pdf> at 18 April 2005.
[56] Ibid. 57 Senator the Hon Chris Ellison, Double Jeopardy Reform Still on the Agenda (2004) Australian Government Attorney-General’s Department <http://www.ag.gov.au/agd/WWW/justiceministerHome.nsf/Page/Media_Release s_2004_1st_Quarter_22_March_2004_-_Double_jeopardy_reform_still_on_the_a genda> at 18 April 2005.
[58] MCCOC, Discussion Paper, above n 54, s 2.8.5(3), 106.
[59] Legal Aid Queensland, Response to Discussion Paper: Issue Estoppel, Double Jeopardy & Prosecution Appeals Against Acquittals (2004) 7 <http://www.legalaid.qld.gov.au/publications/doublejeopardy.pdf> at 8 June 2004.
[60] Ibid, 9.
[61] MCCOC, Discussion Paper, above n 54, 88.
[62] Ibid, 91.
[63] Law Council of Australia, Submission on “Discussion Paper: Model Criminal Code: Chapter 2: Issue Estoppel, Double Jeopardy and Prosecution Appeals against Acquittals” (7 April 2004) [6]
<http://www.lawcouncil.asn.au/get/submissions/2394502352> at 8 June 2004.
[64] MCCOC, Double Jeopardy: MCCOC Report – March 2004, above n 55, [3]; see Recommendation 3.
[65] Ibid [3].
[66] Ibid, Recommendation 2; MCCOC, Discussion Paper, above n 54, 120.
[67] MCCOC, Discussion Paper, above n 54, 120.
[68] Ibid 116.
[69] MCCOC, Double Jeopardy: MCCOC Report – March 2004, above n 55, [2].
[70] MCCOC, Discussion Paper, above n 54, 114.
[71] Legal Aid Queensland, above n 59, 9–10.
[72] MCCOC, Discussion Paper, above n 54, 116.
[73] MCCOC, Double Jeopardy: MCCOC Report – March 2004, above n 55, [6]; Recommendation 6.
[74] Ibid [7]; Recommendation 7.
[75] MCCOC, Discussion Paper, above n 54, 108.
[76] Legal Aid Queensland, above n 59, 8.
[77] Ibid.
[78] Ibid 9.
[79] Ibid 10.
[80] Ibid.
[81] MCCOC, Discussion Paper, above n 54, 114.
[82] Ibid.
[83] Parliament of NSW Legislation Review Committee, Consultation Draft Bill, above n 47, 7.
[84] Legal Aid Queensland, above n 59, 9.
[85] MCCOC, Double Jeopardy: MCCOC Report – March 2004, above n 55, [4]; Recommendation 4.
[86] J Walker, ‘Body of Evidence’ Weekend Australian 15 February 2003, 21.
[87] Kirby, above n 35, 238.
[88] Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW), s 9D; MCCOC, Discussion Paper, above n 54, 108.
[89] Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW), s 9D; MCCOC, Discussion Paper, above n 54, 108.
[90] Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW), s 9D; MCCOC, Discussion Paper, above n 54, 108.
[91] Cook et al, above n 49, 7.
[92] Ibid (emphasis in original), citing R v Carroll [2001] QCA 394 [62] (Williams JA; McMurdo P and Holmes J agreeing).
[93] Cook et al, above n 49, 7, citing R v Carroll [2001] QCA 394 [65].
[94] Cook et al, above n 49, 7.
[95] Law Council of Australia, above n 63, [25].
[96] Legal Aid Queensland, above n 59, 4.
[97] MCCOC, Discussion Paper, above n 54, 108; Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW), s 9D.
[98] Law Council of Australia, above n 63, [20]; Corns, above n 21, 99.
[99] James Wood, ‘Forensic Sciences from the Judicial Perspective’ (2003) 6 TJR 149, 150; Jeremy Gans and Gregor Urbas, ‘DNA Identification in the Criminal Justice System’ (2002) 226 Australian Institute of Criminology Trends and Issues in Crime and Criminal Justice 1, 5.
[100] Bob Atkinson, 2003–2004 Annual Report (2004) Queensland Police Service 25 <http://www.police.qld.gov.au/pr/services/reports/03_04/pdf/AnnualReport03_04. pdf> at 18 April 2005.
[101] Ibid.
[102] Ibid 25.
[103] K E Moroney, 2003-2004 Annual Report (2004) NSW Police 81 <http://www.police.nsw.gov.au/__data/assets/pdf_file/9192/annual_report_2003- 2004_v3.pdf> at 18 April 2005.
[104] For example, R v Button [2001] QCA 133.
[105] R v Sing [2002] NSWCCA 20.
[106] R v Milat (1996) 87 A Crim R 446; Pantoja v R (1996) 88 A Crim R 554; R v Gallagher [2001] NSWSC 462; R v GK [2001] NSWCCA 33; R v Galli [2001] NSWCCA 504.
[107] Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96 (2003) 1096.
[108] Ibid.
[109] Gans and Urbas, above n 99, 5.
[110] Bentley Atchison, ‘DNA Statistics May Be Misleading’ (2003) February Law Society Journal 68, 70.
[111] Australian Law Reform Commission, above n 107, 1103.
[112] Gans and Urbas, above n 99, 1.
[113] Mark Findlay and Julia Grix, ‘Challenging Forensic Evidence? Observations on the Use of DNA in Certain Criminal Trials’ (2003) 14(3) Current Issues in Criminal Justice 269, 278.
[114] R v Sing [2002] NSWCCA 20.
[115] R v Tran (1990) 50 A Crim R 233.
[116] R v Tran (1990) 50 A Crim R 233; R v Keir [2002] NSWCCA 30; Findlay and Grix, above n 113, 274.
[117] Velevski v The Queen [2002] HCA 4, [182].
[118] Australian Law Reform Commission, above n 107, 1102, 1103.
[119] Gans and Urbas, above n 99, 6.
[120] Gregor Urbas, ‘DNA Evidence in Criminal Appeals and Post-Conviction Inquiries: Are New Forms of Review Required?’ [2002] MqLawJl 6; (2002) 2 Macquarie Law Journal 141, 148.
[121] R v Button [2001] QCA 133.
[122] Blackstone, above n 31, 352.
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