The Commission of Inquiry into Forensic DNA Testing (the inquiry), which handed down its final report on 13 December 2022, has sparked a renewed push for reform of Queensland’s double jeopardy laws.
Presently, the rule against double jeopardy prohibits successive prosecutions for the same offence in Queensland, with the exception of murder and some tainted acquittals. In the wake of the inquiry, the Attorney-General has indicated the Government’s intention to expand the exception to “other serious offences”.1
The commissioner’s findings are undoubtedly concerning and have potentially significant consequences for Queensland’s criminal justice system. However, the question whether to amend Queensland’s double jeopardy laws should be given due and proper consideration in the context of the rule’s importance in our criminal justice system.
This article discusses the commissioner’s findings, the rule against double jeopardy, and the risks in weakening the rule in the present legal landscape.
What did the commissioner find?
Commissioner Walter Sofronoff KC made a number of observations and findings relevant to the consideration of any reform of double jeopardy in Queensland.
Importantly, he found that “the methods, systems and processes used at the forensic DNA laboratory do not, in many ways, measure up to best practice”.2 The laboratory’s focus on turnaround times was driven, in large part, by years of chronic underfunding.
The commissioner observed that these issues of underfunding were well known at the highlights levels of Queensland Health and the Queensland Government as far back as early 2005.3
Various experts engaged to assist the inquiry also identified that the client service-provider funding model employed by the DNA laboratory and Queensland Police Service (QPS) risked undermining the laboratory’s scientific integrity:
“[A] funding model where police specifically pay for forensic services … can focus the attention of the forensic service provider solely to services and processes required by the police and not the broader justice system. In doing so it can reduce the independence of the decision making of the laboratory.”4
This misaligned funding model, at times, “led to outcomes which prioritised some QPS priorities (such as turnaround times) over broader criminal justice system priorities such as obtaining all forensic evidence relevant to a case, and explaining clearly the uncertainties and caveats that should properly be placed on results reported by the laboratory”.5
The DNA laboratory’s failures were also attributed to the location of the laboratory as an appendage of the Department of Health; mismanagement and dishonesty by senior managers; and, the culture of the laboratory as ineffective at allowing scientific disagreement to be ventilated.6
As was identified in the commissioner’s final report, the totality of these failings have serious negative ramifications for the criminal justice system:
“I do not doubt that the failure to obtain all of the evidence available from samples has affected some cases. In most cases that will have reduced the prospects of conviction by a failure to obtain evidence which could support a complaint. It is possible, but unlikely that the failures could have resulted in a wrong conviction. … The number of cases actually affected, and whether with different processes those cases would have resulted in different outcomes, cannot be quantified.”7
How many cases are affected?
The commissioner’s final report recommends that the Queensland Government retrospectively review two specific categories of cases to determine which cases or samples should be subject to further testing, analysis or interpretation, and that such review should be conducted “in accordance with a set of principles developed by the Queensland Government in consultation with stakeholders in the criminal justice system and made publicly available”.8
This review would eliminate the relevant samples which do not require re-testing; for example, where the case “has been resolved in the criminal justice system in a way that the DNA result would have had no effect on outcome or decision-making of the Crown or accused”.9
As the recommended set of principles and case review are yet to be finalised, the number of cases materially affected by the DNA laboratory’s failings remains unquantified. Nonetheless, this process may identify cases which call into question an acquittal, in circumstances where the proper provision of accurate expert DNA evidence would now increase the prosecution’s chances of a conviction were the person to be re-tried for the same offence.
It must be acknowledged that this situation arises through no fault of the acquitted person, but rather due to the various failings outlined above.
It is anticipated that the majority of cases that will be affected will be those where, due to a perceived lack of DNA evidence, charges against a person were either never laid, or were laid but later discontinued by the prosecution. The law does not affect the prosecution’s ability to now pursue a charge in either of these circumstances.
The rule against double jeopardy
Presently, the rule against double jeopardy prohibits successive prosecutions for the same offence in Queensland, with the exception of murder and some tainted acquittals.
There are various reasons of legal principle and policy which underpin the double jeopardy rule, including that “a person should not be harassed by multiple prosecutions about the same issue, the need for finality in proceedings, the sanctity of a jury verdict, the prevention of wrongful conviction and the need to encourage efficient investigations”.10
The rule against double jeopardy works hand in hand with the principle of finality in criminal law, which is important to the proper and economical allocation of public resources. At its core, however, the rule against double jeopardy is also a fundamental control on state power, given that in every case, the power and resources of the state will be greater than those of an individual accused of a crime.11
The rule is central to the accusatorial character of Australia’s criminal trial process. This process is not, by its very nature, a search for the truth of what occurred, but rather a search for whether the prosecution (as a representative of the Crown) is able to prove the accused’s guilt to the requisite standard.12
The accusatorial system maintains the integrity of the investigative process and “enshrines the principle that confines police and prosecution authorities to one chance to put their case against an accused”.13
The fundamental nature of the rule against double jeopardy within Australia’s criminal justice system is recognised by s34 of the Human Rights Act 2019 (Qld), which provides: “A person must not be punished more than once for an offence in relation to which the person has already been finally convicted or acquitted in accordance with law.”
In this way, the rule against double jeopardy encourages efficient police investigations, safeguards against the use of prosecutions as a tool of state oppression, and acts as a bulwark against repeated attempts to subject an accused to the criminal justice process.
Murder as an exception to the double jeopardy rule
In Queensland, the only exceptions to the rule against double jeopardy are for murder, when “fresh and compelling evidence” is discovered, and tainted acquittals. These exceptions were introduced in 2007 by way of the Criminal Code (Double Jeopardy) Amendment Bill 2007 (Double Jeopardy Bill), which modified the application of the double jeopardy rule (in relation to murder) “to enable a person acquitted of murder or a lesser offence to be retried for murder if there is fresh and compelling evidence of guilt”.14
Section 678B of the Criminal Code 1899 (Qld) states:
“The Court may, on the application of the director of public prosecutions, order an acquitted person to be retried for the offence of murder if satisfied that –
- there is fresh and compelling evidence against the acquitted person in relation to the offence; and
- in all the circumstances it is in the interests of justicefor the order to be made.” [emphasis added]
This preservation of the rule against double jeopardy, with a narrow exception for murder and some tainted acquittals, strikes an appropriate balance between the need to maintain public confidence in the criminal justice system while upholding fundamental legislative principles.
While other Australian jurisdictions have diluted the rule against double jeopardy, significant work has been done by the Law Commission of England and Wales ‘UK Law Commission), whose findings and recommendations have laid the foundation for laws limiting the rule in the UK and in other jurisdictions.
Relevantly, the UK Law Commission has observed:
“It is, of course, always the case that the law (and particularly the criminal law) should represent the prevailing values of society, and it is important to recognise that such values can and do change. Even so, double jeopardy serves to maintain confidence in the criminal justice system in a way that is too easily underestimated. The reaction to a particular case can be vocal, powerful and immediate. In a highly charged atmosphere which might understandably arise it may be all too easy to discount the reassurance gained by reflecting, in less emotive circumstances, on long-standing traditional bulwarks of individual liberty.”15
The UK Law Commission went on to note:
“That does not necessarily mean that no exception can be justified. Any exception must, however, be limited to those types of case where the damage to the credibility of the criminal justice system by an apparently illegitimate acquittal is manifest, and so serious that it overrides the values implicit in the rule against double jeopardy. The boundaries of any such exception must be clear cut and notorious. Thus the question whether there should be an exception at all is inextricably bound up with the scope of any exception. Is it possible to identify a category of cases in respect of which the objective of achieving accurate outcomes clearly outweighs the justifications underlying the rule against double jeopardy?”16
On this basis, the UK Law Commission considered whether there was a specific category of cases, within the larger category of offences potentially attracting a life sentence, which are serious enough to justify the application of a new evidence exception to the rule against double jeopardy.
It concluded that the only offence justified to come within the scope of any exception to the rule is murder. Importantly, the UK Law Commission identified the widespread perception “that murder is not just more serious than other offences but qualitatively different”, where the effect of this difference is that a manifestly illegitimate acquittal for murder “sufficiently damages the reputation of the criminal justice system so as to justify overriding the rule against double jeopardy”.17
In this way, murder continues to be regarded as a crime standing out from all others because its consequences are so final as to be irreversible:
“The harm caused by homicide is absolutely irremediable, whereas the harm caused by many other crimes is remediable to a degree. Even in crimes of violence which leave some permanent physical disfigurement or psychological effects, the victim retains his or her life and, therefore, the possibility of further pleasures and achievements, whereas death is final. This finality makes it proper to regard death as the most serious harm that can be inflicted on another…”18
This was, in effect, the position taken by the Queensland Government in its previous consideration of exceptions to the rule against double jeopardy. Explanatory notes to the 2007 Double Jeopardy Bill highlighted that a key safeguard of the Bill was its application only to a charge of murder where fresh and compelling evidence was identified.19
Further, the Government at the time recognised the risks attending to any further watering down of the rule against double jeopardy in the Queensland context vis-a-vis its New South Wales counterpart:
“In this bill I have tried to draw the balance between the two principles – that the guilty should be convicted and that acquitted persons should not live the rest of their lives under threat of retrial – more finely. The earlier bill provided for a retrial where ‘fresh and compelling evidence’ had come to light in any case where the accused was to be tried for a ‘life sentence offence’. That applies only to a few very serious offences in New South Wales, but it means rather more offences here. In this bill I propose that the fresh evidence retrial should only apply to prosecutions for murder. … If this bill is passed, we will be largely following the English and New South Wales examples, but we will be modifying them to suit the local criminal law…”20
What are the risks with broadening the exceptions to the rule against double jeopardy?
In this context, there four key risks to broadening the exceptions to the rule against double jeopardy. These include:
- the potential to undermine the accusatorial nature of our criminal justice system
- the limited ability to keep the power and resources of the state in proper check, and the corresponding possibility of ill-intentioned prosecutions
- offending the fundamental legal principle of retrospectivity
- engaging the principle of finality of judgments and threshold issues about whether the DNA evidence can be said to be ‘fresh and compelling’.
First, weakening the rule against double jeopardy undermines the basal accusatorial character of our criminal justice system and substitutes, in its place, an inquisitorial “search for truth”. The Honorable Michael Kirby AC CMG highlights the dangers of this approach:
“This would alter, in a fundamental way, the relationship between the state, police and prosecution agencies and the individual. The change would not be one conducive to liberty. Such a fundamental disconformity should not be introduced without a serious re-examination of its compatibility with the accusatorial form of criminal trial that is basic to the Australian criminal justice system.”21
Second, it would further limit the ability to keep the power and resources of the state in proper check and raises the possibility of politically targeted or ill-intentioned prosecutions. As the Supreme Court of the United States of America has stated, “to permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear the defendant down so that even though innocent he may be found guilty”.22
Third, broadening the exceptions and applying them to any cases arising from the review recommended by the DNA Inquiry would offend the principle of retrospectivity, given that it would necessarily need to apply to acquittals occurring after any reforms have commenced. In this respect, a key safeguard provided in the 2007 Double Jeopardy Bill was that the exceptions to the double jeopardy rule applied only to acquittals occurring after its commencement.
Further, in relation to a retrial for murder there must be “fresh and compelling evidence against the acquitted person in relation to the offence”.23 However, evidence will only be fresh if it “was not adduced in the proceedings in which the person was acquitted”; and “could not have been adduced in those proceedings with the exercise of reasonable diligence”.24
As the Queensland Court of Appeal recently stated in Director of Public Prosecutions v TAL, this fresh evidence test engages the principles relating to the finality of judgments and the conclusiveness of jury verdicts:
“Because of the significance accorded to a jury verdict as conclusive and inscrutable, and because of the operation of the principle of finality, the power to order a second trial on this ground has been limited. First, there is the requirement for the evidence to be ‘fresh’ in the technical sense of that term. The reason for that requirement is obvious. In many cases, perhaps in most contested cases, it will be possible, by means of further efforts after a guilty verdict, to add to and strengthen a case as originally conducted. To permit a retrial because more evidence has emerged when it could reasonably have been obtained for the first trial would offend the principle of finality which requires each party to put forward their best case once and for all. Second, there is the requirement that the new evidence could have led (with a defined level of probability) to a different result. This requirement ensures that due deference is given to a jury’s verdict as a true verdict even in hindsight. The satisfaction of these two requirements demonstrates that there has been a miscarriage of justice.”25 [emphasis added]
As regards the DNA evidence in that case, the court went on to state:
“The Criminal Code establishes a stringent series of conditions that must be met before a person can be tried again for murder after a jury’s acquittal because the presumption is that the jury’s verdict was a true verdict. The stringency is there because the legislature has recognised that, while circumstances might arise that justify a second trial, and while advances in techniques of proof will give rise to new forms of proof that satisfy the strict statutory requirements, a retrial of an acquitted person is an extraordinary proceeding.”26
In this way, the law sets a high threshold for any retrial for murder to appropriately account for the extraordinary circumstances that must exist to justify putting a person in double jeopardy. This exception for murder only on the terms of the current provisions (fresh and compelling evidence and in the interests of justice) seeks to strike a balance between the need to maintain public confidence in the criminal justice system while upholding fundamental legislative principles.
The risks attending any further dilution of the rule against double jeopardy are heightened in the present landscape of intense media scrutiny and public interest. These circumstances “are not always well suited to the adoption of sound law reform that challenges fundamental principles that have existed for hundreds of years”.27 Reform of the rule against double jeopardy should be approached with great caution.
Ultimately, the DNA laboratory’s failings (as a Government-funded authority) are the result of a quest for “quick reporting of results to the detriment of high-quality science”.28 There is a strong argument that the consequences of these failings should not ordinarily be borne by individual defendants who have answered a charge in the usual course of criminal justice proceedings according to law.
If such a change is to be seriously and properly considered, it should be referred to a law reform body for thorough and impartial examination.
Dr Brooke Thompson is a Queensland Law Society Senior Policy Solicitor.
Footnotes
1 Rachel Riga, ‘Queensland government accepts recommendations from the DNA lab inquiry, foreshadows changes to double jeopardy laws’, ABC News (online, 15 December 2022).
2 Walter Sofronoff KC, ‘Commission of Inquiry into Forensic DNA testing in Queensland’(Final report, 13 December 2022) xii [32].
3 Ibid 12-13 [90].
4 Ibid 467 [1537].
5 Ibid 473 [1563].
6 Ibid xii [34].
7 Ibid xii [33].
8 Ibid, recommendations 13-14.
9 Ibid 52 [221].
10 Criminal Code (Double Jeopardy) Amendment Bill 2007, Explanatory Notes, 1 legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2007-1293. See also the Hon. Michael Kirby AC CMG in ‘Carroll, Double Jeopardy and International Human Rights Law’ (2003) 27 Criminal Law Journal 1, 14-21.
11 Kirby (n10) 14.
12 Ibid 15.
13 Ibid 32-3.
14 Criminal Code (Double Jeopardy) Amendment Bill 2007, Explanatory Notes, 1, legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2007-1293.
15 The Law Commission, ‘Double Jeopardy and Prosecution Appeals’ (Final Report, Law Com. No.267, March 2001) 39 [4.18], s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/03/lc267__Double_Jeopardy_Report.pdf.
16 Ibid 40 [4.22].
17 Ibid 41-2 [4.29-30].
18 Andrew Ashworth, Principles of Criminal Law (3rd ed., 1999) 263, as quoted in Law Commission (n15) 42 [4.31].
19 Criminal Code (Double Jeopardy) Amendment Bill 2007, Explanatory Notes, 4.
20 Queensland, Parliamentary Debates, Legislative Council of Queensland, 19 April 2007, 1387 (Peter Wellington).
21 Kirby (n10) 33.
22 United States v Scott (1978) 437 US 82, 98 Ct 2187.
23 Criminal Code Act 1899 (Cth) s678B.
24 Criminal Code Act 1899 (Cth) s678D(2).
25 Director of Prosecutions v TAL [2019] QCA 279, [24] (emphasis added).
26 Ibid [68].
27 Kirby (n10) 34.
28 Sofronoff (n2) xii [32].
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