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Monday, 26 May 2003
Page: 14951


Mr PYNE (8:08 PM) —Law and order has become a touchstone issue in contemporary Australia. The Commonwealth government recognises its responsibilities in this area and is continuing to act to protect Australians now and in the future. This budget alone will provide a record amount of Commonwealth money over four years for initiatives in the Attorney-General's justice and customs portfolio. The Australian Federal Police received a massive funding boost in last year's budget of $398 million over four years. The Australian Federal Police's capacity to investigate terrorism has been further strengthened by the doubling of its strike team capability, which has been allocated $14.6 million in 2003-04, and by a focus on enhancing cooperative arrangements with partner agencies. This budget also continues our commitment to the Australian Customs Service, which is receiving an additional $218.2 million over four years, representing a funding increase of more than 50 per cent since 1996. The Australian Crime Commission has been allocated an extra $30 million over four years to investigate money laundering and tax evasion resulting from organised criminal activity.

The Tough on Drugs initiatives will receive a further $12 million to support key new measures. An additional $4 million is being allocated in 2003-04 to continue the National Crime Prevention program. This initiative was launched in 1997 as part of the Commonwealth government's response to community concerns about crime and violence and the impact it has on people's lives. A key priority of the National Crime Prevention program is the prevention of juvenile offending. Australia's financial intelligence capabilities through the Australian Transaction Reports and Analysis Centre, also known as AUSTRAC, will be boosted by $8.2 million in the 2003-04 budget to tackle money laundering. This represents a 51 per cent increase on existing funding. The full promise of the new proceeds of crime legislation can now be realised due to additional resources for the Commonwealth Director of Public Prosecutions and the Insolvency and Trustee Service Australia. The Australian high-tech crime centre will be formally opened in 2003 to improve national coordination in response to high-tech crime threats, including threats to the national information infrastructure.

The Howard government is demonstrating that we need innovative solutions to tackle the crime problem. Knee-jerk and populist-driven reactions, like mandatory sentencing and capital punishment, do not drive down crime rates. While we need creative solutions, we also need to get the fundamentals right. I grieve for those parents and many others who have witnessed the failure of, or have been failed by, the legal system. The legal system was designed and is managed by human beings. We are all flawed and sometimes the results of our work are flawed. For that reason, we rely on precedent—on the experiences of our predecessors—and we should endeavour to do this in as dispassionate a way as possible. What is required of government is an objective, unemotional assessment of what is good for the individual, for families and, as well, for society as a whole.

It is into this climate that I wish to wade today in examining the case for abolishing the legal principle of double jeopardy. Put simply, the basis of the principle of double jeopardy, which has been present in our legal system since the 12th century, is that an accused cannot be tried for the same crime twice. It has two objectives: to deliver certainty to an accused who is found innocent and to ensure that a prosecution is undertaken in such a way that the state does not use its power over the individual inappropriately. Instead, the onus should be on the state to make sure that it gets the job right the first time. Indeed, it is the very responsibility of the prosecution to come to court with its best case knowing that it will not get a second chance that protects the professionalism of our court system. The corollary to that is, faced with the prospect of being able to have a second chance, the shoddiness that may creep into the prosecution case may infect the whole court system.

The arguments in favour of retaining the principle of double jeopardy cross an interesting divide. There are those who would claim to be conservative who feel uncomfortable that a basic tenet of our legal system for 900 years is being called into question, and there are those who are liberal and who subscribe to the view that double jeopardy is a brake on the power and reach of the state in the titanic battle between the state and the individual. Regardless of which view one comes from, both would argue that abolishing the principle of double jeopardy is something we should not rush into. We need to pause and take stock of the arguments. The argument put forward by the Premier of New South Wales is that forensic technology is now such that we can, with certainty, gather the evidence necessary to reopen cases and try defendants where previously our research may have been inconclusive or non-existent. This is superficially appealing.

But there is another approach. While we should certainly be using the DNA research and forensic technology available to us in current cases to ensure that criminals are brought to justice successfully, it is not so clear whether this technology should be used to reopen cases hitherto closed. To do so would overturn 900 years of legal practice in a way that would suggest that the state can move the goalposts on the citizen. In other words, this new technology should be used for our future and current investigations. Maybe the double jeopardy rule should be altered from the present onwards, but to remove it retrospectively seems to me to be unfair. In a world where the state already has the dice loaded in its favour vis-a-vis the individual, to retrospectively change the law in this way would appear to be making the odds for the individual insurmountable. It should be resisted.

This evening I suggest that rather than abolish our system of rules regarding double jeopardy we consider the halfway house option of introducing a new third verdict alternative. Last month, Perth man John Button received $460,000 as an ex gratia compensation claim, a year after his 1963 manslaughter conviction was quashed. Mr Button served 5½ years of a 10-year prison term, after being found guilty of running down his then 17-year-old girlfriend, Rosemary Anderson. Mr Button's conviction stood for almost 40 years, despite the death row confession of serial killer Eric Cooke and an absence of any forensic evidence on Mr Button's car. Meanwhile in Queensland, accused killer Raymond John Carroll, twice found guilty over the murder of 17-month-old Deirdre Kennedy, walks free after three successful appeals on legal technicalities, including double jeopardy. How would abolishing double jeopardy affect these men, their families and the families of their victims?

In the case of Raymond John Carroll, allowing another trial to proceed would probably go a long way to seeing justice served and giving some peace of mind to the victim's family. In the case of John Button, it would probably lead to acute anxiety, sleepless nights and, if he were charged again, emotional and financial strain that would almost certainly destroy him and his family. Mr Button's 40-year nightmare would continue for the rest of his life. It also raises the question of how adequately an accused could defend themselves if required to engage legal representation for a second trial. How do we protect someone who has spent their entire savings on a legal defence, only to discover that they must stand trial again with no savings to appoint a lawyer for a second trial?

There is a strong argument that double jeopardy still has an important role to play in fettering state power. No-one should assume that the state has an unblemished record in conducting fair and proper criminal law prosecutions. There are famous instances where ham-fisted prosecutions have resulted in wrongful detention. Internationally, the Guildford Four case in the 1970s in the United Kingdom and, more recently, the Tulia drug case in the United States are two examples where convictions were overturned following questionable practices by the prosecution. Similarly, there is interesting new research which highlights DNA studies that prove high rates of wrongful convictions have been achieved for death row inmates, partly because of public pressure to convict someone—anyone—for heinous crimes.

Double jeopardy has been a cornerstone of most legal systems for centuries. There is a risk that by abolishing this doctrine altogether we may be throwing the baby out with the bathwater. It seems that we are at a classic impasse: we are damned if we do abolish double jeopardy and we are damned if we do not. But there is an alternative that provides the best of both worlds. Scotland's criminal legal system provides three possible verdicts: guilty, not guilty and not proven. A not guilty verdict invokes the protection of double jeopardy, allowing a clearly innocent person to go about their life completely vindicated. A not proven verdict allows, with some restraints on oppressive prosecution, the case to be reopened with new evidence. There is no statutory, case law or universally accepted definition of the not proven verdict, nor of the difference between not proven and not guilty. In the 1964 case of McNicol v. HMA, Lord Justice General Clyde gave the following opinion:

The three choices are in fact much more logical and in accordance with principle than merely to give a jury two. Juries are not all-seeing and all-knowing. They are merely human beings and they can never know with certainty that a man is guilty. The furthest they can go against him is to hold on the evidence led before them it is proved beyond reasonable doubt that the accused did commit the crime. The true alternative to that verdict is that the Crown has not proved its case beyond reasonable doubt and the truly logical alternative, therefore, is a verdict of not proven. But there are cases where a jury can go further in the accused's favour. The crucial Crown witness may be disbelieved or may be proved discreditable and the defence may be shown to be a true defence which they accept. In that case a jury may well be prepared to hold it positively established by the evidence that the accused did not commit the crime and the appropriate verdict would then be a verdict of not guilty.

The advantages of the third verdict alternative are threefold. Firstly, the benefits of double jeopardy are retained, giving security and certainty to all Australians who have been wrongly or maliciously accused and found not guilty. We all share a sense of outrage that Raymond John Carroll is a free man due to the double jeopardy rule, but I am not comfortable with a criminal law system that completely abandons the principle of double jeopardy. I think most Australians would likewise baulk at the thought that they or their loved ones could be repeatedly brought before the court over the same allegation. The second advantage of the third verdict alternative is that prosecutions which fail for a procedural or technical reason do not put the jury in the invidious position of effectively finding the accused innocent in circumstances where available evidence points to probable guilt. There have been countless examples where technical difficulties or the actions of one hold out member of the jury frustrate justice. The O.J. Simpson trial is one such instance where the not proven verdict might have ultimately delivered a more sensible outcome. Thirdly, it draws on an ancient legal tradition, thereby providing some level of precedent and legitimacy to the proposal.

There is a risk that the third verdict system is good in theory but bad in practice. More specifically, there is a view that in a difficult trial a jury will take the soft option and deliver a not proven verdict. The alternative view is that with proper judicial instruction the not proven verdict will not be overused or become a judicial cop-out. A criticism of the third verdict system is that a not proven verdict attaches a certain stigma to the accused in that they are effectively found to be not innocent—or, as it was articulated in a 1994 United Kingdom consultation paper, the connotation is, `We think you did it, but we're not absolutely sure.' The alternative view is that even those persons found not guilty do not always escape some degree of stigma. A case in point is Lindy Chamberlain who, despite being found not guilty, still suffers from having a stained character.

In the same consultation paper it is argued that:

The public makes up its own mind about a case on what it has heard of the evidence and its attitude to the accused is not wholly determined by the verdict. There are cases where a not proven verdict is welcomed by a sympathetic public, and equally those where a guilty verdict has been perceived as unjust. The question of stigma is more complicated than a simple attachment to the not proven verdict.

Another criticism of the Scottish system is the question of judicial direction to juries. On occasions judges have attempted to explain to juries the difference and significance between the two acquittal verdicts, but this has sometimes resulted in appeals on grounds of misdirection. In practice, the appeal court has instructed trial judges not to attempt to explain the difference to juries. I stress that the three-verdict system has been in place in Scotland since the 17th century; it is not a new creation.

A misconception of the not proven verdict is that it prevents anyone else being convicted of that crime. This is incorrect. If there is evidence that someone other than the person tried may have committed the crime then it can and should be investigated. The Scottish experience shows that the not proven verdict is used in one-third of acquittals by juries and in one-fifth of acquittals in non-jury trials. Other statistics collected by the Criminal Justice Statistics Unit of the Scottish Office of Home and Health show that some types of court make more use of the not proven verdict than others. Among their findings is that juries make proportionately more use of the not proven verdict, returning it in 42 per cent of High Court acquittals and 33 per cent of Sheriff Court acquittals—that is not in all decisions, just in acquittals—than do justices and sheriffs, who return it in about 21 per cent of acquittals in the summary cases that they hear alone.

Australian legislators could also introduce additional measures to constrain the scope and operation of the third verdict system, including a provision that limits the number of trials to two. Another option that has been publicly flagged is to allow the Attorney-General to set aside the double jeopardy protection on a case by case basis. On face value this option appears to have merit, but the politics of law and order means that we run the risk of this option being invoked only in cases where a frenzy has erupted in the media.

The double jeopardy rule should not be surrendered without appropriate consideration. It certainly should not be abandoned as a knee-jerk reaction in an election campaign, but there is something very wrong with a system that allows an innocent person to be retried ad nauseam or a system that allows the plainly guilty to walk away innocent because of a legal technicality. Adopting the third verdict alternative has the potential to overcome both conundrums. I thank the House.