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Monday, 26 May 2003
Page: 14960


Mr DUTTON (8:45 PM) —I rise tonight to speak on the Appropriation Bill (No. 1) 2003-2004 and to record my thanks to the Treasurer and to the government for delivering yet another responsible budget in very uncertain times. It has been said before that this is a government that has been about delivering outcomes for families and outcomes for small business. This budget certainly delivered on those aims. One of the aims that I had from my interest and involvement in the community in my electorate when I came into this place was to serve and further the cause of families, because of the importance of families to communities such as that of Dickson. My very strong belief is that this budget provided to those people in no small way. This government has not only delivered on things such as lower interest rates but also provided for more economic certainty than was ever the case when interest rates, unemployment and inflation were so high under the 13 years of the Labor government.

One of the concerns that I as a member in this place have is that when we come to Canberra and when we are in these great chambers we can sometimes lose touch with the views of so many in our community. An issue that I have campaigned on very hard is that of double jeopardy. I have campaigned very hard on that issue because it is an issue that I believe needs to be addressed by this parliament and, indeed, by the parliaments of each state government around the country. I commend the Carr government for the progressive legislative changes they have made in relation to double jeopardy in modernising a law which is 800 years old. It is a law which has also been modernised in the United Kingdom, where it originated. The Blair Labour government in the United Kingdom has taken the opportunity to update and modernise a number of aspects of the criminal law system, including that of double jeopardy. I commend that government as well for the way in which it has approached with an open mind this very serious issue, which causes grief to families and to members of our community.

It is an issue which is very well known in Queensland because of the infamous case of Raymond John Carroll. I know that some members in this place have spoken as well on the tragedy of the Carroll case. Carroll is a person who has twice been found guilty by separate juries and who has, subsequent to each of those findings, been found not guilty by a higher court on a legal technicality. It is an issue that I have fought very hard on in my community, because I believe that change needs to be made. Some who would misrepresent the view that I and other members of my community hold have said that we are about abolishing the principle of double jeopardy. It is quite the contrary, in fact. That is not what we are about. We are very much about modernising the concept of double jeopardy, providing for certainty and making provision within the criminal justice system for outcomes and closures for families—like families who have tragically lost people like Deirdre Kennedy, the 17-month-old child who was lost to Faye Kennedy and her family almost 30 years ago. This year marks the 30th anniversary of the tragic loss of Deirdre Kennedy in those dreadful circumstances that all Queenslanders and, I am sure, all Australians are aware of.

The ultimate outcome thus far in relation to the trial of Carroll—who, as I say, has been convicted twice of that murder—is that we have a situation where Carroll appealed to the High Court on grounds including that of double jeopardy and has in my view escaped justice to date. The overwhelming evidence that was produced in that trial and in the previous trials in my view proved that person's guilt. We have a situation where a principle which is 800 years old has robbed that family of justice. If we are about providing justice and fair outcomes to victims of crime and to their loved ones—who live in electorates such as mine, Dickson, and indeed in others right around the country—why shouldn't we be about righting the wrongs and providing for some fair outcomes for those people?

I have heard it said in this place that we should not be changing this principle simply because of the fact that it has been one of the cornerstones of our justice system for 800 years. In part, I agree with that argument. I am not advocating the abolition of double jeopardy, which is what some people who seek to misrepresent my view and my argument in relation to this matter would have you believe. Over the last few weeks, 15,000 signatures have been collected from people right around Queensland, and in particular from people in the south-east corner of Queensland, who have supported my calls for the upgrade and modernisation of double jeopardy. They share my view that double jeopardy is not a principle that should be abolished. It is one of the very important and fundamental cornerstones of the Australian criminal justice system. That is why we believe that the double jeopardy provisions should be retained and the principle modernised to provide justice in those cases where it has so far robbed people of that justice.

I have also heard people who misrepresent my view, and people who support my view, suggest that we should be looking at some overseas models. It has been suggested that we should be looking, for argument's sake, at the model in Scotland which has been adopted for about 300 years. It is a system which provides for three outcomes: a verdict of guilty, not guilty or not proven. We know that it is a system which, despite those people who advocate it, is only operating in Scotland. A not proven verdict means that the prosecution has not provided enough substantial proof to convict the individual of a crime but there remains considerable doubt regarding the offender's innocence. Under the Scot system, a person who has been given a not proven verdict cannot be retried for that same crime. That is a fundamental flaw in the argument that the Scot system would provide some justice or some outcome for those people under the Australian system who have been robbed by the outdated and antiquated double jeopardy provisions.

The not proven verdict has a 300-year-old history in Scotland and has been the subject of debate and criticism since at least 1827, when Sir Walter Scott labelled it `the bastard verdict'. In Scotland in recent times there has been a vigorous campaign to abolish the ability of juries to give a not proven verdict. The campaign was spearheaded by the father of a murdered girl whose accused killer was declared not proven. The argument against the system was that the verdict left victims' families in limbo without a resolution either way, with no closure—not dissimilar in many ways to the lack of closure that is provided for families who are robbed under the current provisions of the double jeopardy system that operates in Australia.

A not proven verdict also leaves the defendant tainted with a verdict of `less than innocent'. In 2000, 23 per cent of Scotland's 4,000 acquittals were declared not proven. That means that about 920 defendants were left without the clearance of an official exoneration and that 920 victims of crime and their families were left wondering if the guilty party was walking free. It is a system that is flawed also because it removes the cut and dried ability of a court to award costs to one party or another. This can necessitate a second judicial inquiry into costs. It further complicates the judicial process, as the second inquiry can be lengthier and more complex than the trial itself.

I say to the House tonight that this Howard government is very much about providing better outcomes for Australian families. One of the ways we can do that is to ensure that the injustices that families like the Kennedy family have endured now for 30 years never happen again. That is why I have been part of his campaign to modernise—not to abolish but to modernise—the provisions of double jeopardy as it operates in the Australian criminal law system.

I call on the attorneys-general around Australia—and, indeed, on the federal Attorney-General—to further consider this principle. If they are, as the Premier in Queensland talks about, for providing some justice, some equity, some equality and some uniformity across Australia then they should indeed adopt the model which has been rightly adopted by the New South Wales government. The New South Wales government in its modernisation of the double jeopardy provisions has provided a system where, essentially, if new evidence does come to light then the police make approaches to the Attorney-General of the day—quite properly so. The police then are removed from the whole process. The Attorney-General then takes the decision that there is new evidence, if that is what is adduced by what is before him. If he then arrives at the decision that new evidence has been produced and that a new trial should be granted, the Attorney-General then makes application to the Court of Criminal Appeal.

If people are after a watertight system as best we can provide it, and a transparent system that provides for some certainty and some outcome, then that is about as close to perfect as we can get in this current system. Not only does it remove police from any ability to make a decision in relation to a second trial; it also removes the Attorney-General and therefore, some would argue, any political motivation that might exist for the Attorney of the day. It places, quite rightly, that decision to again pursue the defendant with the Court of Criminal Appeal of the day. The Court of Criminal Appeal then makes the decision based on the evidence that is before it that, yes, there is sufficient new evidence that has been adduced from that provided by the police—or wherever the evidence may have come from—to grant another chance at justice.

I really do implore the state government tonight to put aside arguments and distractions where people are talking about abolishing double jeopardy, because that is not what we are doing. That is a furphy that has been introduced into the argument, and it is convenient for the sake of some people's arguments. We know that the Scottish system is a failed one; we know that people in Scotland do not agree with that system. And we know that we are about providing for fair outcomes. To be able to do that, we need to adopt a policy which modernises double jeopardy. It is a fundamental cornerstone of our justice system and it is a system which we do not recommend abolishing but which we do recommend updating.

There are other refinements that need to be made to our criminal law system to iron out these difficulties that we have from time to time. Make no mistake about it: this is not wholesale change which provides for some sort of ability for the state to pursue relentlessly some person who has previously been found not guilty. It does not provide that at all, and that is not what we are advocating. What we are talking about in the circumstance is providing for a fairer outcome for the people of Australian society. In my view, we need to put aside some of these arguments and distractions that other people have put forward and deal very quickly with the issue at hand.

I renew my call tonight not just to the Queensland Premier but indeed to the state Attorney-General to listen to, I believe, the 99 per cent of Queenslanders who support the modernisation of double jeopardy to ensure that the tragedy and the circumstances that the Kennedy family have gone through for 30 years never happen again. We want a system which provides that certainty, that outcome and that closure for families. If we do not provide that then we are going to see forevermore the difficulties that have been presented to the Kennedy family and to other families. If we are going to be honest about the situation and the system that we are faced with at the moment, we have fundamentally a very good legal system. There are problems that we need to iron out. We do not need to make wholesale change and replace the whole verdict system; we need to make changes which modernise the system and make it fairer for all Australian families.

Debate interrupted.