CRIMINAL PROCEDURE AMENDMENT (DOUBLE JEOPARDY AND OTHER MATTERS) BILL 2011

I rise to speak in the debate on the Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011. The bill will improve community safety by ensuring outcomes and reducing complexity while delivering on a key government election commitment. I begin my contribution by putting on the public record my sympathies to the victims of crime, whose lives are turned upside down due to absolutely no fault of their own.

If justice is not seen to be done when someone is wrongfully acquitted, particularly when compelling evidence arrives at a later date, that makes matters far worse. I talk from personal experience. The father of my brother-in-law was murdered in his mechanics store in Brunswick. In that circumstance the person was convicted, but over some 10 years my brother-in-law, his family, his mother, my sister and others have lived with it every single day of their lives. The victims of crime are often forgotten when these situations arise. With these changes to the double jeopardy laws we are seeking to ensure that when evidence is later found that somebody has committed a crime there is an opportunity to seek a retrial and have justice done.

There are a number of things I want to talk about, but firstly it is important to define double jeopardy, which is a procedural defence that forbids a defendant from being retried on the same or similar charges following a legitimate acquittal or conviction.

We all remember the 1999 thriller Double Jeopardy, which stars Tommy Lee Jones and Ashley Judd. It depicts a woman who is framed for murdering her husband, who is later found to be alive, and then has the ability to carry out the deed because she has already been tried. We say it happens only in Hollywood, but in Australia many situations have arisen, and previous speakers have spoken of them, in which further evidence has come to light at a later time. Changes to the double jeopardy laws would in those circumstances allow a retrial.

I cite the case of the Walsh Street acquittals, the future of which still hangs in the balance. The double jeopardy rule has prevented the accused from being tried twice for the same events. Many members of the public would argue that it is in the public interest to get a conviction when it comes to these sorts of cases.

The deaths in 1988 of Steven Tynan and Damian Eyre prompted a public response that grew to become Blue Ribbon Day, and many of us in this house wear a blue ribbon during September to honour the policemen and women who have died serving the community. Many members of the public have maintained their rage when people such as the four who were brought before the courts and charged with the Walsh Street murders were all acquitted, and certainly the changes to these laws will provide the opportunity for these cases to be tried again if there is compelling evidence.

The Council of Australian Governments argued for these changes in June 2007, and I am pleased that the opposition is supporting the bill; however, I note that we have been very late in changing these laws and have fallen behind other states and jurisdictions. When the opposition was in government, it had every opportunity to do something about it; the former Attorney-General had the opportunity but did not take it up.

It is disappointing to see when you look at the other jurisdictions in the UK or New Zealand that they have already introduced similar legislation.

In Australia, Victoria lags behind all the other states. South Australia changed its laws in 2008, Western Australia in September 2011 and Tasmania in 2008 when amendments were introduced to allow retrial of serious cases in 2008. In October 2007, Queensland modified its laws to allow for retrials when fresh and compelling evidence became available after an acquittal of murder or a tainted acquittal for a crime carrying a 25-year or longer sentence. In all these states the laws were changed when the opportunity presented itself. As I mentioned, the Council of Australian Governments recommended the changes in 2007, but the Brumby government refused to adopt them.

We are certainly honouring our election commitment of getting on with the job, and in doing this we have set three specific reasons for retrial.

They make it very clear and ensure that there is the opportunity to seek a retrial: firstly, on fresh and compelling evidence; secondly, where there is a tainted acquittal: and, thirdly, when fresh evidence that an administration of justice has been committed. These are three opportunities to seek a retrial. I want to talk a little bit about those three instances, starting with when there is an opportunity for fresh and compelling evidence against a person, which really refers to DNA evidence. Obviously DNA evidence was not available before but is available now, and if it links a person to a murder or points to a person having committed a murder, then the exemption from the double jeopardy principle will apply. These are all serious crimes which range from murder and manslaughter to arson causing death, from trafficking large commercial quantities of drugs of dependence to sexual penetration, rape and robbery.

The second area to which the law applies is where the original acquittal was tainted -- for example, when an administration of justice offence such as bribery of a witness or perjury takes place. In this instance the exemption will apply for offences with a maximum of 15 years imprisonment or more. We are not talking about minor crimes; we are talking about major crimes, and if it can be determined that evidence has been tainted, then the law would allow a retrial.

The third area to which the law applies is where fresh evidence has arisen that a person has committed an administration of justice offence in respect of acquittal. This also applies to indictable offences.

In all of these cases the reforms allow for an assurance that there are safeguards and provisions. Let me say there is only one more opportunity to get a go at this. The Director of Public Prosecutions needs written authorisation when there are search warrants, and police will not have the opportunity to have another go at trialling somebody. The evidence needs to be compelling to enforce a second trial, and a retrial will not be looked at unless there is that sort of evidence.

This is a very important bill that honours a commitment we took to the election, and it will improve safety within our community. Cases like Walsh Street need to be solved, and justice needs to be done. I commend the bill to the house.