Page 2008 - Week 06 - Thursday, 9 June 2016
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The flipside to the double jeopardy rule, of course, is that there can be exceptional and extreme circumstances where a person should be retried in the interests of justice. Justice is not an esoteric legal principle. It is a concept that encompasses victims’ perspectives on justice as well as the community’s perspective on justice. The Victims of Crime Commissioner has articulated this in his call for these double jeopardy reforms to go further. One need only look at the community outcry that has occurred in relation to some of the more controversial cases to understand that the community places a high value on ensuring that people who are guilty of crimes receive the appropriate sanction.
The way we respond to criminal justice issues also changes over time as technology and community standards change and evolve. One clear difference today that we did not have when the double jeopardy principle was founded is advanced DNA evidence. Science can now provide conclusive DNA evidence that may implicate a person in crimes, or also acquit them, and the law needs to evolve to deal with that. The law has in fact evolved quite substantially in past decades to deal with changing technology and scientific advancements.
There are real and harrowing examples in Australia where people’s common understanding of justice has run into the double jeopardy principle. One example is the Bowraville murders, a case involving the tragic killing of three Aboriginal children. The perpetrator is yet to be brought to justice. The families of the victims of the Bowraville murders have campaigned for many years to retry a suspect who was acquitted in separate trials for two of the murders but has not been tried for the three murders together.
Particularly given the care that the government has taken in presenting this reform, with its numerous safeguards, I accept the proposed changes to double jeopardy laws. But I do want to use this opportunity to emphasise a different but related issue. That is the issue of right to appeal laws. While double jeopardy applies when a person who was found innocent is charged for the second time based on new evidence, right to appeal laws allow a person who has been found guilty of a serious crime to make a new appeal where fresh and compelling evidence emerges that should be examined in the interests of justice.
Put simply, if we are acknowledging that fresh and compelling evidence can be used to condemn someone, we should also acknowledge that it can be used to release someone who is in prison. Ensuring that the innocent are not imprisoned is also a foundational principle of our criminal justice system. Especially as a human rights jurisdiction, the ACT should be adopting best practice to ensure this does not occur. I think we have all seen examples where people have been imprisoned for crimes they did not commit and it has taken tireless work by family, friends and often advocacy groups to bring these cases to light.
I mentioned earlier the value that the community places on ensuring that people who are guilty of crimes receive the appropriate sanction. The community also places a very high value on ensuring that innocent people are not imprisoned. Again, there are prominent cases of innocent people who have been imprisoned, who have lost their liberty and whose lives have been irrevocably changed.
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