This is all well covered in last week's Law Report on ABC Radio National (see transcript here.) It all arises from the Carroll case, where a twice convicted man still walks free (and according to the mother of the murdered baby, he would come into the shop where she worked and expect her to serve him at the check out. See the transcript of the Australian Story episode in which this part of the story was told.)
I still don't feel that I know enough about the Carroll case to comment fully about it. The part that I need to know more about is how badly they got the dental evidence at the first trial wrong (it appears that the match was "upside down", which sounds like some basic incompetence on the part of the expert witnesses. However, the dental evidence was re-visited in the second trial.)
I do not for the life of me understand why (on the appeal from the first trial) the court of appeal said that the trial judge should not have allowed in evidence from Carroll's first wife that it appeared to her that he used to bite his daughter in the same manner as appeared on the murdered baby (see Australian Story transcript.)
Anyway, even without understanding the whole Carroll case fully, the fact that Queensland's AG can't accept even a cautious reform of this ancient law is what drives me crazy.
And rushing in to support her is the current President of the Queensland Law Society (Rob Davis), who argues in precisely the manner which causes reasonable people to lose confidence in the legal system. The proposed reform as explained in the Law Report is this:
"The New South Wales model puts forward a very feasible solution... because it provides that the police on finding new evidence by way of DNA, for argument’s sake, that they would make application to the Director of Prosecutions if the Director of Prosecutions felt that there was fresh and compelling evidence they could make application to the Court of Criminal Appeal, so there are those two safeguards in place. The Court of Criminal Appeal could order one extra re-trial and the matter could then proceed, or they could dismiss it."
It would also only apply to "serious crime".
How does Rob Davis approach this? By huffing and puffing as follows:
"Rob Davis: Double jeopardy’s one of those things which sets us aside from totalitarian societies where governments can and do use the power of the legal system to oppress individuals.
Annie Warburton: But we’re just talking about proposals to allow the state just one more go at an accused person, in the case of serious crime where compelling, fresh new evidence has arisen. Surely that’s not oppressive?
Rob Davis: Yes, it is, because even one prosecution of an individual can absolutely destroy that individual in terms of their finances. The state has power to enlist the assistance of the best legal talent in bringing prosecutions; individuals have to rely on their own financial resources. Legal Aid is not always available, and when a person is prosecuted and the state fails, that individual doesn’t get compensated for all the time and effort and money that they’ve had to spend in defending their claim."
Well look Rob, if it's the financial burden on the innocent that you are worried about, that could be easily dealt with by the government providing for a guarantee of legal aid to all persons who face a second trial. For God's sake, the suggested reform is likely to result in a second trial once in a blue moon.
"Annie Warburton: The mother of murdered baby Deidre Kennedy, and the federal politician Peter Dutton, who’s been supporting her campaign all these years, maintain very forcefully that the majority of people want at least that small step towards reform to allow one more prosecution in serious cases where there’s compelling new evidence. Do you agree that that’s what most people want?
Rob Davis: No I don’t. Look, it’s a very tragic case and this is not a comment in relation to the horrendous situation that they found themselves in, but this is not one of those areas where you can just put one side to the public and say what does the public want, you also have to put to the public what’s the importance to them of being able to live their life in a free and open society. Do we want a society which is more oppressive, more totalitarian, where the individual can become inconvenient to the state and suffer repeated prosecutions. Or are we prepared to accept that to have a free and open society there are some costs. And one of the costs is that sometimes there may be guilty people who go free. But surely that’s far more preferable than a society in which many innocent people are either crushed by the power of the state, or can go to jail for crimes that they didn’t commit."
What a crock. Doesn't he trust the courts in the supervisory role they would have in even allowing a second trial to take place?
He is just displaying legal conservatism at its worst. It is the type of argument that is exploited by criminal lawyers in particular, because they know that certain redundant laws of evidence or criminal procedure can be used to their advantage.
This was dealt with well by Richard Ackland in his column in the Sydney Morning Herald this week. He is often very "precious" and I frequently do not agree with him, but this time I do. His column was about the attacks that a couple of prominant Sydney criminal lawyers made against Crown Prosecutor Margaret Cunneen after she gave a talk at a law school earlier this year. To quote from the column:
"Among the most salient of Cunneen's points is that technology has made the gathering of evidence in criminal cases more extensive, and indeed more reliable, than at any previous time. But that has led to more complex trials, because the challenge by defendants to the admissibility of strong, probative material, such as DNA evidence, takes on a greater importance.
Further, she thought that it might be time to consider whether the pendulum has swung too far in favour of protection of the rights of the accused. "What must not be lost in the rhetoric of the criminal law and our zeal to afford every possible protection to accused persons is the fact that every time a guilty person is acquitted, the law, in a sense, has failed the community it exists to serve."
She knew it was heresy to say such a thing because it confronts some of the law's basic articles of faith, not to mention leaps of faith. Cunneen added, "There seems to be a fashion, among some in the criminal justice system, for a kind of misplaced altruism, that it is somehow a noble thing to assist a criminal to evade conviction."
And her final flourish: "Justice isn't achieved by ambush, trickery, dragging proceedings out in a war of attrition with witnesses. It's achieved by honesty, balance and proportion." '
The final point made by Ackland sums it up well:
"The Crown prosecutor's belief that the emphasis on process in criminal cases comes at the expense of discovering the truth, is something that should be said loudly and often. It appears that confidence in the administration of justice depends on keeping these issues quarantined from illumination.
That her speech was used to have her removed from prosecuting various retrials of earlier Sydney rape cases is illustrative of the very point her Sir Ninian Stephen Lecture made."
If you live in Queensland, or indeed any other State which similarly refuses to take the double jeopardy reform movement seriously, I suggest you write to your local member, and also to the opposition party to see what their policy is. I certainly intend to.
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