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‘Leave double jeopardy alone’

Queensland Law Society President Rebecca Fogerty and Criminal Law Committee Chair Dominic Brunello at Parliament House.

Leave the double jeopardy rule as it is, Queensland Law Society (QLS) told a public hearing at Parliament House yesterday.

QLS President Rebecca Fogerty and Criminal Law Committee Chair Dominic Brunello told the Legal Affairs and Safety Committee of the Society’s concerns about the Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Bill 2023.

The Bill was introduced into Parliament in November last year, prompted by the 2022 report by Walter Sofronoff KC about the Commission of Inquiry into Forensic DNA Testing in Queensland.

Rebecca said the Society did not support the changes to the rule against double jeopardy, which would expand the offences to which the double jeopardy exception applied if there was fresh and compelling evidence.

“Our strong view is that the current exception for murder only strikes the appropriate balance between the need to maintain public confidence in our criminal justice system whilst upholding fundamental legislative principles,” she said.

“We do however support the introduction of another legislative pathway for defendants who have already unsuccessfully appealed to the Court of Appeal but then come into possession of further evidence.”

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Dominic said the proposed reforms would have far-reaching effects.

“Of course the reforms that are being proposed won’t just apply to applications to retry emanating from DNA evidence from the inquiry, they will apply to every application in any matter within the ambit of the offences that engage the provision,” he said.

“And that’s one of the Law Society’s major concerns – ‘function creep’ – you initiate a reform that interferes with a fundamental precept of the system in response to one episode of failure of an expert evidence unit, and if affects thereafter every case.

“Every defendant who is acquitted will have the spectre hanging over them that it’s not over.

“The concern is how much of a fundamental principle this is, and once fundamental precepts begin to be diminished, confidence in the system fades.”

Dominic said the double jeopardy rule protected against the power imbalance between the defendant and the state.

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“There is a fundamental inequality in arms, even with the most well-represented and well-funded defendant, and to constrain that power there is this long-standing principle … that they (the state) only get one shot at the prosecution to ensure that there is not an exercise which is oppressive,” he said.

“And it’s one reason why the Law Society supports the introduction of a further appeal right for a defendant but opposes the relaxation of the rule for the Crown, because there’s a different set of considerations at play.

“Defendants can have defective trials and appeals which are effectively no fault of their own, whereas the Crown should be bounds by its forensic decisions, its approach, and its ethics at trial because it is in a better position and the other side is a single individual against the might of the Crown.”

Dominic said the double jeopardy exception in the common law system had been examined in England and the QLS position aligned with the findings.

He said “a very erudite, comprehensive, careful analysis” had concluded that “the appropriate balance is to create an exception for homicide cases, which are qualitatively different in the eyes of the community because the consequence is so final for the victim, however not go further than that, to open the floodgates, or the Crown to retry acquitted people with all the risk that has to the system as a whole”.

The QLS representatives also pointed out the Society’s opposition to the Bill’s introduction of an unprecedented appeal test.

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“Miscarriage of justice is a very well-known test. To place the onus on the applicant to prove to the civil standard a negative that they are not guilty is not reflected in any current law I’m aware of in Australia,”  Dominic said.

The committee is due to table its report on 19 February.

Read the QLS submission here.

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