Double jeopardy and the Bowraville decision: Where to now? – RN


Updated

September 14, 2018 07:08:23

The NSW Court of Criminal Appeal has refused an application by the NSW Attorney-General to retry the person police suspect of killing three Aboriginal children in Bowraville between 1990 and 1991.

The first of the children, Colleen Walker, disappeared 28 years ago this week. A month later, in October 1990, 4-year-old Evelyn Greenup disappeared following a house party.

The following January, 16-year-old Clinton Speedy-Duroux went missing.

Initially, police treated the children’s disappearances as missing persons cases. In January 1991, Clinton’s body was found.

Much has been written in recent history about the deaths.

The killings have been the subject of two police investigations, multiple trials, a coronial inquest, a parliamentary inquiry, substantial media coverage and a podcast.

The most in-depth consideration was by the parliamentary inquiry, which found an initial police investigation was critically flawed. The inquiry heard evidence from family members that they had been met with indifference or scepticism from police when reporting their children missing.

A second police investigation went a long way to healing the rifts with the Aboriginal community in Bowraville, and found evidence that had not previously been uncovered.

The history has been long, and police clearly believe they have their man.

It is equally clear that two different juries did not agree; first in 1994, when the respondent ā€” who can not be named for legal reasons ā€” was acquitted of the Clinton’s murder, and then in 2006 when the respondent was acquitted of the murder of Evelyn Greenup.

Double jeopardy

The hearing before the Court of Criminal Appeal in December last year saw two central tenets of the criminal justice system in conflict: The fundamental nature of the rule against “double jeopardy” relied upon by the respondent (which provides that ordinarily a person who has been acquitted of an offence is protected by the principle and cannot be tried again for that offence), and the “public interest in ensuring that serious offences are brought to justice” relied upon by the Attorney-General.

In New South Wales prior to 2006, the principle of double jeopardy had no legislated exception.

Following the acquittal of the respondent for Evelyn’s death, however, the families started actively campaigning to change the law in NSW ā€” and they succeeded.

So it is that since October 2006, it has been possible to apply to retry a person for a crime in particular circumstances.

However, until last year no-one had tested the changes. And until this week we had no decisions of the court on the interpretation of the law.

In a 90-page unanimous judgement, the Court of Criminal Appeal held that any application must be based, as a starting point, on evidence that was not available at the time of the former trial.

In so finding, they accepted the respondent’s legal argument that it was not sufficient that evidence not be admissible; it had to be, in practice, unable to (with the exercise of reasonable diligence) have been “tendered” or “brought forward” in the proceedings in which the person was acquitted.

The court held that the evidence that related to the killing of Colleen Walker was “available”, even if inadmissible, at the latter trial of Evelyn, and therefore could not be considered “fresh”.

Risk that a serial killer remains free

There can be no doubt that this week’s judgement will be influential.

The case is unique in many ways, not least because it represents the most extreme examples of the ends of the spectrum: On the one hand, the risk that a serial killer remains free; on the other hand, the dangerous threat to liberty that arises if the state is able to retry its citizens for crimes a jury has acquitted them, not once but twice.

Similar provisions exist in other jurisdictions in Australia and courts facing such applications in the future will likely look to today’s judgement in determining where the balance lies.

But in the legal analysis, one should not lose sight of the extraordinary impact that the Bowraville community’s campaign has already had on the NSW legal and political system.

Few thought a parliamentary inquiry would be established, yet it was. That inquiry, drawing on the lessons from the first “critically flawed” police investigation, proposed recommendations that initiated cultural training for police officers, solicitors and judicial officers across Australia.

Inquiry gave voice to a community

It gave a voice to a community long ignored by mainstream media.

Fewer still ever thought the matter would come before the Court of Criminal Appeal, yet it has. Applications to numerous attorneys-general were rejected before the most recent was successful.

And for families who had expressed their frustration over the fact that a criminal court had never considered the three killings together, the highest court in New South Wales has just done so.

So where to next for the families and community of Bowraville?

There is an avenue to a High Court application, however only the lawyers for the Attorney-General know what merit lies there.

Regardless of that outcome, in a politic such as ours that prioritises parliamentary sovereignty, there always remains the ability to legislate further changes to the law where the political will exists.

It is likely that, for now, the community’s eyes will turn to the NSW Parliament to see what its response will be to any renewed calls for action.

Craig D. Longman is Head, Legal Strategies and Senior Researcher, Jumbunna: Institute for Indigenous Education and Research (JIER), University of Technology Sydney.

Topics:

laws,

courts-and-trials,

bowraville-2449,

australia

First posted

September 14, 2018 05:00:00



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