Double Jeopardy and the Bowraville Decision: Where to now?


by Craig Longman

Head, Legal Strategies and Snr Researcher

Jumbunna: Institute for Indigenous Education and Research (JIER), Research Unit
THIS IS AN EXCERPT OF THE ARTICLE Craig has written for Speaking Out ABC.
The link of which is below.

….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 — 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”.

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.

THE COMMUNITY IS HOLDING A RALLY AT NSW Parliament House on Thursday 20th September 10am. Come stand with them to find justice for their children.