5 May 2016

2nd Reading Speech

The Hon. ADAM SEARLE ( 12:24 ): I lead for the New South Wales Opposition on this bill. The Opposition also does not support the Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2015. This of course is an enormously difficult issue. No doubt in this particular case, the Bowraville murders, a gross injustice has been done to not only three families but also of course the wider community, and that is to say nothing of the wider impact that such matters have on the administration of the system of criminal justice. I think instances such as the Bowraville murders really do bring the administration of our criminal justice system into disrepute.

Of course it is a testament to the commitment and resilience of that community and the families that they have kept their campaign for justice going since the time of those murders, even to the present moment. I take this opportunity to acknowledge their efforts, their commitment and their resilience. Given the way this debate is going, that journey still has some way to go. Like the Minister, I acknowledge that we meet on the lands of traditional owners and I pay my respects to their elders past and present.

I also recognise the efforts of Detective Inspector Gary Jubelin in this matter. I encountered Detective Inspector Jubelin when he was a witness in a trial that I had carriage of many years ago and I was impressed by him as an officer of the NSW Police Force. What I have learned of his role in connection with this matter has deepened my appreciation of Detective Inspector Jubelin as an officer. Nevertheless, although this legislation has been brought forward to try to correct the injustice that has occurred, for the reasons that I will shortly outline, I do not believe that it would do so. In trying to correct a past wrong to particular families and to a particular community, we may do further harm to the administration of criminal justice in this State.

In 2006 the New South Wales Parliament did change the law with respect to double jeopardy to allow an exception to the rule that citizens should not be tried for the same offence twice. Of course, the rule against double jeopardy prevents a person who has been acquitted from being tried again for the same offence. It is one of the key protections in our legal system for individuals. Its rationale is to prevent multiple attempts to convict an individual and also to bring finality to criminal proceedings.

It is a statement of the obvious to say that the State will always have vastly greater resources than any individual in a criminal trial. So the principle is also one of fairness—allowing multiple attempts to pursue an individual through a criminal prosecution encourages inadequacies in prosecution. There is also something unseemly about the power of the State being brought to bear against a citizen for the same offence or for the same facts situation more than once. That is why in the debate yesterday on those cognate crimes bills the Opposition took the view that we thought there was something seriously untoward about serious crime prevention orders being brought on the same facts situation against persons who are in fact acquitted of serous criminal offences.

It would be inconsistent with our approach taken yesterday to support this legislation today. We know that two trials in relation to the Bowraville murders resulted in acquittals. It is a matter of record now, and I think it is broadly accepted, that the police investigation was bungled, incompetent and, in my view, racist.

The consequences for the families, the wider community and I think the system of criminal justice have been appalling. The 2006 change to the law was at the time controversial. Its intention was to allow a retrial following a murder acquittal if there is “fresh and compelling evidence and it is in the interests of justice”. It is quite clear that the intention of the legislature in enacting that provision as an exception to the rule against double jeopardy was that fresh evidence really meant newly acquired or newly discovered evidence, as I understand it.

The bill before the House proposes to redefine that to say that evidence is also fresh if it was merely inadmissible in the proceedings in which the person was acquitted, and as a result of substantive legislative change in the law of evidence since the acquittal, it would now be admissible. If enacted, that would bring about a great and fundamental change to the law. I pay tribute to the work of the Legislative Council Standing Committee on Law and Justice and its inquiry, and I congratulate all of its members on the unanimous recommendations it made.

The Minister has identified two of those recommendations, one of which is that the New South Wales Government review section 102 of the Crimes (Appeal and Review) Act to clarify the definition of “adduced” and to consider certain things which have been outlined and which I will not repeat. A former Chief Judge at Common Law and former Royal Commissioner, Mr James Wood, QC, delivered a report after he inquired into those matters. He examined, as he was required to do, a number of potential issues, one of which was: what does the word “adduced” mean? Does it merely mean evidence that was brought to the court although not admitted into evidence? Does it mean evidence that was admitted?

The consensus from the expert legal bodies was that its technical meaning was evidence produced but not necessarily brought into evidence. I must say from my decade and a half of legal practice the meaning was not so clear. I think the term “adduced” has been used fairly interchangeably with both of those concepts. Former Justice Wood reached the obvious conclusion in regard to making substantive changes to the law, in light of the fact that the 2006 amendments have not been subject to any judicial interpretation and have not been used or engaged with, that there should not be any legislative change.

A range of stakeholders were asked to comment on different reform proposals, one of which was changing “adduced” and “admitted”, and another was a change which is embodied in the legislation that is now before the Parliament which was whether fresh evidence in section 102 should be expressly extended to include evidence previously inadmissible but made admissible due to a later change. Stakeholders gave a lot of consideration to that second proposition.

The Director of Public Prosecutions, the Law Society of NSW, the NSW Bar Association and Legal Aid NSW made the point that its effect would not only be in connection with the Bowraville matter but there would be unintended increases in applications for retrials because it would have a broader impact. They also pointed out that there would be a significant departure from the current provision and it would provide the foundation to greatly broaden the number of matters that may well be considered. Of significant concern was the fact that previously unadmitted evidence could, if this change were made, constitute fresh evidence following a change in the law and that could lead to a wider number of matters.

The Public Defenders described such a change as being totally unacceptable and a scandalous erosion of the fundamental human right, that is, the right to protection against being pursued twice for the same criminal matter. There was a fair degree of consensus amongst the stakeholders most directly concerned with this area that none of the reform options should be embraced: the terms “adduced” and “admitted” should not be interchanged and there should not be the extension of the definition of “fresh”. The Western Australian legislation was described as strange, unhelpful and uncertain and, having read it, I tend to agree. It too has not been the subject of judicial interpretation.

The English and Welsh cases do not really provide much support or assistance in the difficulties in which we find ourselves. Former Justice Wood concluded that the disadvantages of changing the law were clear and certainly outweighed any advantages to the interests of justice and would be a further encroachment on the rule against double jeopardy. The uncertainty of the effect of any proposed amendments to the statute was not a good thing and should not be embarked upon. There would also be a departure from the approach across many jurisdictions and there would be damage to the principle of finality of prosecutions. The Opposition fully agrees with those observations.

The Opposition believes that changing the law in the way sought would involve some retrospectivity in the criminal law by applying laws other than those that were applicable at the time, which is a very significant change in the way in which we ordinarily approach criminal matters. Even with proposed changes in the criminal law, the usual rule is that those changes, even procedural ones, are prospective, not retrospective. I think the intention of this bill is that it would reach back in time to assist those in the Bowraville community and while that is an understandable objective in order to try to secure justice for those families and that community, it would not be limited to that matter.

The Opposition believes that the rule against double jeopardy has a sound basis in principle and its weakening imposes dangers to the rule of law and protection of individuals. We know that persons from Indigenous backgrounds are well and truly over-represented in our criminal justice system and people may well be brought unintentionally into the net of these expanded provisions, if they were enacted. I do not say that in any way being critical of the author of this bill; I understand that like all the members of the law and justice committee he is trying to right an historic wrong.

Having closely considered the matter the Opposition respectfully but profoundly disagrees with the path chosen in this bill and is not able to support it. The difficulty is obviously with the original police investigation. The Opposition notes that the NSW Police Force is one of only two stakeholders to support the changes, and given the embarrassment it must feel in this matter, that is understandable. The Opposition also thinks the prospect of this legislative change effectively being used against a particular individual is also troubling. The idea of Parliament legislating with respect to a single matter or a single individual is also troubling as a matter of principle, and that is one of the reasons why the Kable legislation was struck down by the High Court. It is possible this legislation could face the same fate.

For all of those reasons, and with the best will in the world, and recognising the goodwill and the good intentions of the author of the bill and those who will support it in this place, the Government and the Opposition as the alternative government, are forced to take that broader view of the impact of the change on the system, not without mindfulness and being cognisant of the impact on the individual case and the families and the communities. It is a hard call, and we have to make that call by opposing this legislation.