Almost a quarter of a century ago three Aboriginal children, Colleen Walker, Clinton Speedy-Duroux and Evelyn Greenup, were murdered in Bowraville and their killer still walks free. The circumstances surrounding the three children’s murders have clear similarities, however the legal system at the time prevented all the murders being tried together. This meant crucial evidence was missing from each trial and justice has not been done.
In November 2014 a NSW parliamentary committee recommended that the parliament look at changing the law so that artificial barriers preventing a fresh murder trial could be removed. This requires a change to the way the principle of “double jeopardy” operates where the rules of evidence have changed over time.
The Committee unanimously recommended:
That the NSW Government review section 102 of the Crimes (Appeal and Review) Act 2001 to clarify the definition of ‘adduced’, and in doing so consider:
• the legal or other ramifications of defining adduced as ‘admitted’, particularly on the finality of prosecutions
• the matters considered by the English courts under the equivalent UK legislation
• the merit of replacing section 102 of the Crimes (Appeal and Review) Act 2001 with the provisions in section 461 of the Criminal Appeals Act 2004 (WA), and
• the merit of expressly broadening the scope of the provision to enable a retrial where a change in the law renders evidence admissible at a later date.
In seeking to progress this recommendation, this office has drafted the Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2015 for consultation, and we are now seeking public submissions.
Submissions will be accepted until 10 April 2015 – download submission form
We are seeking broad stakeholder engagement on the following questions:
1. Do you support the objects of the Bill?
2. Will the draft Bill be effective in implementing Recommendation 8 of the Committee’s Report?
3. What would be the broader impacts (positive and negative) of the draft Bill on the criminal justice system?
4. Are there any better, alternative models to achieve the same outcome?
5. Any further comment.
Submissions can be made by: email to [email protected] or post to David Shoebridge, Parliament House, Macquarie St, Sydney NSW 2000.
Note: All submissions will be treated as public documents, however all requests for confidentiality will be accepted.
For further information, contact the Office of David Shoebridge on (02) 9230 3030.
By way of background, please see the Committee Report, particularly Chapter 5 on double jeopardy, and Chapter 6 for discussion of the interpretation of s102 in relation to Bowraville, and analysis of possible avenues for law reform.
The need for the Bill
In 1995, there was an attempt to prosecute two of the murder trials together, under the previous, more restrictive common law evidence rules regarding propensity and similar fact evidence. That was denied, and instead each of the murders was tried separately, and the same accused person was acquitted in each.
Running the three trials together, with what the Evidence Act 1995 terms tendency and coincidence reasoning, would considerably strengthen the prosecution case. This type of evidence was used to convict serial murderer Ivan Milat for seven joined murder charges.
‘Double jeopardy’ exception legislation was passed in 2006 to allow the Court of Criminal Appeal to order a retrial following a murder acquittal if there is ‘fresh and compelling’ evidence and it is considered to be in the interests of justice (Part 8, Division 2, Crimes (Appeals and Review) Act 2001). ‘Fresh evidence’ is defined as evidence which was not and could not have been adduced in the trial (s102). It is not a barrier to retrial that the evidence was inadmissible at the time of the first trial (s102(4)).
After an extensive homicide re-investigation by a police Strikeforce, further evidence has come to light, and based on that and the change to tendency and coincidence law, the families of the Bowraville victims asked the DPP to apply to the Court of Criminal Appeal for a retrial. They have now been denied by the previous Director of Public Prosecutions and two former Attorneys-General, on the basis that the evidence did not meet the test for retrial under the exception to ‘double jeopardy’.
Despite the 2006 law being passed with Bowraville in mind (it was mentioned by several members of Parliament in debate), there was a difficulty with the term ‘adduced’. It was considered that the Bowraville murders could not be retried because the prosecution tendered some evidence of one murder in the trial of another of the murders, but it was not admitted under the common law of evidence. What ‘adduced’ means is yet untested in NSW courts.
If ‘fresh’ evidence included evidence that was not and could not have been admitted into evidence (as opposed to tendered in court but rejected by the judge as inadmissible), it would remove a significant barrier a retrial for the Bowraville murders. The tendency and coincidence evidence was not admissible under the old evidence law, and now could be, under the Evidence Act.
The Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2015 would insert into section 102:
(2A) Evidence is also fresh if:
(a) it was inadmissible in the proceedings in which the person was acquitted, and
(b) as a result of a change in the law since the acquittal, it would now be admissible if the acquitted person was to be retried.
Concerns may be raised that such an amendment would ‘open the floodgates’ to retrials. However in 2003, the UK passed double jeopardy legislation with a similar test for ‘new evidence’, and in the ten years until the end of 2013, only 13 applications for retrials were made by the DPP, 9 of which were successful (Marilyn McMahon, ‘Retrials of persons acquitted of indictable offences in England and Australia’, pp173-174). Given the UK’s substantially larger population than NSW, the numbers of retrials of acquitted persons on the basis of previously inadmissible evidence would be expected to be quite limited.
Further information on the Bowraville murders
– Bowraville Murders: MPs Breakdown As Report Bolsters Hopes For Justice, by Amy McQuire, New Matilda
– The Ghosts of Bowraville, by Amy McQuire, Tracker Magazine
– Bowraville murders: after the NSW inquiry, the elusive justice families seek is one step closer, by Larissa Behrendt, The Guardian