Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

CRIMINAL CODE AMENDMENT BILL 2008 (No. 46)

Second Reading

[4.09 p.m.]

Mr LLEWELLYN (Lyons - Minister for Justice - 2R) - Mr Speaker, I move -

That the bill be now read the second time.

The current rule against double jeopardy prevents a person who has been acquitted or convicted of an offence from being tried again for an offence relating to the same conduct or event. The risk of retrial is known as 'double jeopardy'. The double jeopardy rule is an important safeguard to acquitted defendants, underpinned by specific legal principles such as the protection of citizens from harassment by the State, the need to encourage efficient investigation, and the need for finality in proceedings.

In Tasmania the double jeopardy rule in relation to serious offences is part of the Criminal Code Act 1924. Section 355(1)(b) allows an accused person to plead that he or she has already been acquitted or convicted. Section 362 states that where a person succeeds on that plea the judgment shall be that the person be discharged. The matter may also be raised during committal proceedings in the Court of Petty Sessions. However, the double jeopardy rule as it currently stands means that if a defendant is charged with the murder of the victim and acquitted, then the defendant cannot be charged again with the murder, no matter what new evidence is available. It is this clear injustice that the reform seeks to redress, while not overturning the sound reasons for the application of the rule in most cases.

In April 2003 a meeting of the Standing Committee of Attorneys-General referred the issue of double jeopardy to the Model Criminal Code Officers' Committee, which has since been renamed the Model Criminal Law Officers Committee. In March 2004 the committee reported to the Standing Committee of Attorneys-General recommending that the laws on double jeopardy should be changed so that a person acquitted of an offence would not be precluded by the rule against double jeopardy from being prosecuted for an administration of justice offence or the original or related offence in three circumstances:

· prosecution for an administration of justice offence connected to the original trial;

· retrial of the original or similar offence where there appears to be fresh and compelling evidence; and

· retrial of the original or similar offence where the acquittal is tainted.

In July 2006 the Council of Australian Governments agreed that reform of the rule against double jeopardy was an important criminal law policy reform that merited nationally-consistent treatment. A working group was set up to progress double jeopardy law reform on the basis of recommendations made by the Model Criminal Code Officers' Committee. The working group recommended adoption of those recommendations and in April 2007, the Council of Australian Governments agreed that jurisdictions would endeavour to implement the recommended reforms.

This bill amends the Criminal Code to allow for an exception to the rule in double jeopardy in three circumstances. Firstly, where a person has been acquitted of a very serious crime, that person can be retried for the original or a similar crime where there appears to be fresh and compelling evidence. A 'very serious' crime is defined in the bill as murder or attempted murder; manslaughter; the trafficking or manufacture of large commercial quantities of drugs; rape; and aggravated armed robbery. The bill defines evidence as 'fresh' if, with the exercise of reasonable diligence on the part of the prosecution, it could not have been brought to the primary trial. Because of recent rapid developments in forensic technology such as DNA analysis, evidence may become available that was not and could not have been available at the time of the original trial. Such evidence would be 'fresh' evidence under that definition. Evidence will be 'compelling' if it is reliable, substantial, and highly probative of the case against the acquitted person.

Secondly, the bill allows for retrial of a person who has been found not guilty where the original acquittal is 'tainted'. An acquittal is 'tainted' if the accused person or another person has been convicted of an administration of justice offence in connection with the proceedings in which the accused person was acquitted and it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been found guilty. Administration of justice offences include perjury; bribing or interfering with a juror, witness or judicial officer; and perverting or conspiring to pervert the course of justice. Because interference in a trial brings the administration of justice into disrepute, the offenders must not be able to profit from it and the rationale for allowing a retrial for a tainted acquittal is different from the rationale for a 'fresh and compelling evidence' retrial. As a result, this exception applies to 'serious' crimes which covers a broader range than the 'very serious' crimes to which the 'fresh and compelling evidence' exception applies.

In the interests of trying to achieve commonality in the application of this exception across jurisdictions, the list of 'serious' crimes which appears in the new Appendix D is based on the offences listed by the Model Criminal Code Officer's Committee and accepted by the Council of Australian Governments. The 'tainted acquittal' exception applies whether the administration of justice offence was committed by the acquitted person or by another person. This should operate as a disincentive to associates of an accused contemplating the commission of an administration of justice offence, for example, situations where organised crime or the family or friends of an accused interfere with a trial.

Thirdly, the bill allows an acquitted person to be prosecuted for an administration of justice crime where that crime is connected to the original trial. This exception is to apply to acquittals for all indictable offences and is not limited by the serious crime threshold, on the basis that if an administration of justice crime has been committed, then the guilty party should be brought to trial for the administration of justice crime, no matter what category of offence was originally being tried. This means that in situations where the original crime was not sufficiently serious to trigger either of the two double jeopardy exceptions allowing for retrial, the prosecution can still pursue the administration of justice crime. For example, if fresh evidence arises that a key witness in a burglary trial was induced to give false evidence by the defendant who was later acquitted, a prosecution of the acquitted person for corruption of a witness may be ordered by the court.

Because creating exceptions to the rule against double jeopardy is a significant departure from the common law, the bill includes several safeguards to protect the rights of the accused and the interests of justice. Firstly, a court may only order a retrial, or the prosecution of an administration of justice offence, if it is satisfied that 'in all the circumstances it is in the interests of justice for the order to be made'. In determining whether it is in the interests of justice for an order to be made, the court must have regard in particular to the length of time since the acquitted person allegedly committed the offence and whether any police officer or prosecutor has failed to act with reasonable diligence or expedition in connection with the application for the order.

Secondly, a police officer will not be allowed to carry out or authorise the reinvestigation of the actions of an acquitted person unless the Director of Public Prosecutions has advised that in his opinion the acquittal would not be a bar to the trial of the acquitted person and has given written consent to the investigation. In this context, 'police reinvestigation' means any investigation in connection with the possible retrial, or prosecution for an administration of justice offence, of an acquitted person for the offence of which they were previously acquitted, if that investigation involves any arrest, questioning or search of the acquitted person, any forensic procedure carried out on the person, or any search or seizure of premises or property of or occupied by the person, whether with or without the consent of the acquitted person.

The Director of Public Prosecutions may not give consent to a police reinvestigation unless satisfied that there is, or there is likely to be as a result of the investigation, sufficient new evidence to warrant the conduct of the investigation and it is in the public interest for the investigation to proceed.

There will be an 'urgency' exception to the requirement for the Director of Public Prosecutions to give prior approval to police reinvestigation. This is to allow a commissioned police officer to authorise investigative action without consent if the action is necessary as a matter of urgency to prevent the investigation being substantially and irrevocably prejudiced and it is not reasonably practical to obtain the DPP's consent before taking the action. However, the DPP must be advised as soon as practicable of any investigative action taken on the basis of urgency, and consent will be required for the continuation of a reinvestigation commenced under the urgency exception.

Thirdly, not more than one application for a retrial may be made in relation to an acquittal. If a person is acquitted at retrial, the prosecution will be precluded from making an application for a further retrial on the basis of further fresh and compelling evidence. This safeguard will provide certainty for acquitted persons against the risk of persistent retrials, and will encourage diligent police and prosecution action during reinvestigation and retrials. However, the above safeguard will not apply if a retrial is 'tainted' due to the commission of an administration of justice offence.

Fourthly, to prevent any risk of prejudice to a possible retrial of an acquitted person, the court will have the power to suppress the publication of any matter. Fifthly, time limits will be imposed on applications for retrials and the subsequent presentation of indictments for the retrial of acquitted persons. These time limits will minimise uncertainty for an acquitted person whose case has been reopened, ensure that the Director of Public Prosecutions will move quickly to apply for a retrial and then act upon a retrial order, and ensure that the Crown has a very strong case before even applying for a retrial. The court may extend these periods if there are good reasons to do so.

Sixthly, at the retrial of the accused person, the prosecution will not be entitled to refer to the fact that the court has found that there appears to be fresh and compelling evidence against an acquitted person or that the accused person more likely than not would have been convicted but for the commission of the administration of justice offence. At a trial for an administration of justice offence, the prosecution will not be able to refer to the fact that the court has found that there appears to be fresh evidence of that offence.

The exceptions to the rule against double jeopardy will apply to acquittals in other jurisdictions subject to constitutional limitations. The bill provides that all the exceptions to the rule against double jeopardy apply retrospectively. This means, for example, that a person acquitted of murder 20 years ago could be retried if there is fresh and compelling evidence, for example DNA evidence, which is now available linking them to the crime. The bill also amends the Criminal Code to clarify that, where a prosecution appeal against sentence is successful, the court should not have regard to the simple fact that the offender is being sentenced a second time.

'Double jeopardy' principles have been cited by the courts in relation to prosecution appeals against sentence. In this context the 'double jeopardy' is that a convicted person is facing being sentenced for a second time for the same offence. Even if a prosecution appeal against sentence is successful, 'double jeopardy' considerations sometimes result in an appeal court not imposing a new sentence or discounting the substituted sentence. If sentences that have been accepted by appeal courts as inadequate remain uncorrected, this may have a tendency to lower sentencing tariffs, and persons convicted of crimes may be able to escape appropriate punishment. As a matter of principle, 'double jeopardy' considerations should not be given precedence over the community's interest in seeing crimes appropriately punished.

The Council of Australian Government's working group recommended that all jurisdictions should implement reforms to provide that, when a court is considering a prosecution appeal against sentence, no principle of 'sentencing double jeopardy' should be taken into consideration by the court when determining whether to exercise its discretion to impose a different sentence or in determining what sentence to impose.

In Attorney-General v McDonald [2002] TASSC 120, it appeared that the Tasmanian Court of Criminal Appeal was itself moving away from the approach, based on the principle of sentencing double jeopardy, of the automatic discounting of an appropriate sentence seen in earlier cases. However, this amendment makes it clear that, while the court may take into account exceptional circumstances occurring after the imposition of the original sentence, the mere fact that a person is facing sentencing for the second time for the same offence is not such a circumstance. I commend the bill to the House.

[4.28 p.m.]

Mr MICHAEL HODGMAN (Denison) - This is the bill which partially abolishes the double jeopardy rule which has been part of our great common law legal system for more than 800 years, eight centuries.

It involves the rule autrefois acquit, which means I have been otherwise acquitted. It is known as the double jeopardy rule and it must, and I repeat must, be carefully considered before the Parliament moves to take away rights which have been part of our great common law system for eight centuries.

Because I recently presented a paper on the subject, I wish to put before the Parliament today a number of comments about this legislation. I have told the Attorney-General that the Opposition, the State Liberals, will not vote against the bill. But we have a clear duty to understand exactly what we are doing because, as I said, it partially abolishes a rule which has been part of our common law system for 800 years.

I start by referring to and agreeing with some comments made by the Attorney-General in his second reading speech. He correctly stated at the commencement of his address to the House that the current rule against double jeopardy prevents a person who has been acquitted or convicted of an offence from being tried again for an offence relating to the same conduct or event. The risk of retrial is known as 'double jeopardy'.

The Attorney went on to say that the double jeopardy rule is an important safeguard to acquitted defendants, underpinned by specific legal principles, such as the protection of citizens from harassment by the State, the need to encourage efficient investigation and the need for finality in proceedings.

Dealing with this bill and the agreement entered into July 2006 by the Council of Australian Governments, which agreed that reform of the rule against double jeopardy was an important criminal law policy reform that merited nationally consistent treatment, the establishment of a working group and now this bill, the Attorney correctly stated that the bill amends the Criminal Code to allow for an exception to the rule in double jeopardy in three circumstances. I want to emphasise that. We are in very distinguished company. We are creating an exception to the rule; we are not abolishing the rule. But even an exception has to be watched carefully because sometimes little exceptions tend to grow. Sometimes those who have achieved a small exception will then say now we will press on to make it a bigger exception.

Firstly, where a person has been acquitted of a very serious crime such as murder, attempted murder, manslaughter, trafficking or manufacture of large commercial quantities of drugs, rape and aggravated armed robbery - yes, I agree they are all serious crimes. Secondly, the evidence must be fresh and that means if with the exercise of reasonable diligence on the part of the prosecution, he could not have been brought to the primary trial. Thirdly, it must be compelling - that is to say reliable, substantial and highly probative of the case against the acquitted person.

In dealing with tainted acquittals, an acquittal is tainted if the accused person or another person has been convicted of an administration of justice offence in connection with proceedings in which the accused person was acquitted and it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been found guilty.

I might just allude to my earlier comment that we recently had in the Chamber this afternoon listening to the debate, a former Mayor of Launceston, Alderman Graeme Beams, a current alderman, Alderman Frank Nott, and our friend the Mayor of Dorset, Councillor Peter Partridge. It is wonderful to see such ornamental members of local government coming to the Parliament.

Mr Hidding - Ornamental?

Mr MICHAEL HODGMAN - I say he is an ornament to local government and you have said the same thing to me. Wonderful that he is here.

Mr SPEAKER - I do not think that they will need this bill, though, will they?

Mr MICHAEL HODGMAN - I don't think so, Sir. I thank Mr Hidding for his continual assistance. We are very fortunate to have him. The double jeopardy rule has been, in recent years, a major matter of debate amongst the media, particularly in cases of special notoriety. The Stephen Lawrence case in the United Kingdom particularly brought the rule to public attention.

The United Kingdom Parliament in 2003 passed the Criminal Justice Act 2003 UK which abolishes double jeopardy in special circumstances. In 2006 the New South Wales Parliament passed the Crimes Appeal and Review Amendment Double Jeopardy Act 2006, which allowed for further prosecutions where there is fresh and compelling evidence or proof of tainted acquittals. The arguments against the abolition of the double jeopardy rule articulated by the Bar Council in England were, in summary:

'1. The rule of double jeopardy is of constitutional importance, recognised throughout the common law world and applied in virtually all developed legal systems.'

I repeat: 'all developed legal systems.'

'2. There is a real risk of harassment from the state and the press where both believe that the acquitted defendant should be retried.'

Just imagine you are a citizen; the state, the government, want you retried; the media wants you retried and the Bar Council of England points out that there is a real risk of harassment from the state and the press where both believe that the acquitted defendant should be retried.

'3. There is a real risk that disappointed investigators, particularly in high profile cases, may well wish immediately to recommence investigations after an acquittal, particularly if there is pressure from the media, victims or politicians. Those with previous convictions known to the investigating officer would also be a target. Officers with a personal animus against an accused may wish to pursue him or her despite an acquittal.

4. There is a very serious risk that any new trial will be unfair. The [UK] Law Commission has acknowledged this. Any tribunal would know that the case had already been to the Court of Appeal and the Court of Appeal was satisfied that there was "new and compelling evidence". This is likely to be used in high profile cases and will run the risk that a fair subsequent trial would be impossible.

5. That in any event, the prosecution would have precise knowledge of the defendant's case and be able to review and strengthen its own case in the light of that knowledge.

6. Whilst the Government proposes that fresh evidence should only be taken into account where it "could not reasonably have been available for the first trial" it is our view that such situations are likely to be commonplace because of inadequate investigation in the first place. It is likely that prosecutors will be able to satisfy the court of appeal that there was "no reason" to suspect that that particular witness could give material evidence.

7. Abolition of the rule against double jeopardy is liable to encourage unreasonable expectations in victims, create media campaigns and rob the process of finality.'

The Bar Council went on to conclude that in any event no-one had produced any hard figures to justify such a departure from the established international norm. The proportion of those who are acquitted who are in fact guilty is completely unknown. I would have to say, in my view and quite seriously, it would be very small. There can be no rational basis other than prejudice for suggesting that someone who has been acquitted after a full trial was, in fact, guilty.

The United Kingdom's main civil liberties lobby group, Liberty, took the view - and I quote it verbatim:

'Removing the protection of double jeopardy may well help convict a handful more serious criminals; unfortunately, it will also lead to the repeated prosecution of many who are innocent people. For innocent people, even once acquitted, their ordeal won't be over. And police and prosecutors, knowing that they can have a "second bash," won't have to tackle real problems of incompetent investigation in the first place.'

The senior Conservative MP, the Right Honourable Peter Lilley, put it succinctly when writing in the Daily Telegraph:

'The double jeopardy rule persisted for eight centuries for four very good reasons. It protects the individual from harassment by the state; it forces the prosecution to get all its ducks in a row before taking a case to court; and it reassures all innocent people, once acquitted, that they will not face a second trial. Finally, any second trial would inevitably be prejudiced if a judge first rule that new facts were "compelling evidence" of guilt.

There remains the problem where an acquitted person later admits to a significant crime. In such cases, options which have been considered as an alternative to making an exception to the double jeopardy rule involve a greater use or strengthening of the law of perjury. Interestingly one of the supporters of this approach in the United Kingdom was the Association of Chief Police Officers. They suggested there is a strong public interest to investigate and prosecute witnesses, including defendants, for perjury where their evidence has been palpably incredible. There is a culture that condones perjury. Where a defendant who has given evidence and called witnesses is convicted the court should be more ready to infer perjury and call upon the police to investigate.

In fact the Leader of the Opposition, in discussions with me, understood the situation in relation to perjury and under our Criminal Code of course if you commit perjury you could be retried, as in fact happened to a woman whom I defended. She was charged with murdering her husband. Mr Jim Wilkinson appeared at her trial and she was acquitted of the charge of murdering her husband. Then there were further investigations by the police which led them to believe that in explaining her case to the court she had committed perjury, so she was charged with perjury. Mr Wilkinson's firm briefed me to appear for her. In the event she was acquitted but she could have been convicted.

I am told that in the United Kingdom a person who committed a murder and then later boasted that he had lied his way out of it to escape conviction was charged with and convicted of perjury. The learned judge in sentencing him said this:

'It is appropriate that I should sentence you to the penalty which would have been imposed upon you had you been convicted of murder. I can't do that because the death penalty is not available but I am going to do the next best thing: you are sentenced to life imprisonment'.

The fellow in the dock nearly fell over and he appealed. He said this was wrong but the House of Lords said no, it was not. The penalty for perjury can be very high and in that case he got life.

In an article in The Times, Michael Straddling suggested:

'While there are instances of those acquitted of serious offences subsequently confessing to the crime, surely a less radical and more effective solution would be to increase sentencing powers for perjury.'

And I add 'or conspiracy to pervert the course of justice'. The article continued:

'A discretionary life sentence for those who, say, admit to murder after acquittal would allow for justice and the retention of the double jeopardy rule.'

That is exactly what happened in the case to which I have just referred.

So having put those principles on the line, the Opposition has carefully analysed this bill and we find the following. First, it is very limited. We agree with the assessment that it will only apply in a very few cases. Secondly, there will not be a retrial unless a judge of the Supreme Court of Tasmania authorises it, and we have great confidence in our judiciary. So it is not just a case of saying, 'We are going to have another bash.' The Director of Public Prosecutions will have to go before a judge of the Supreme Court and produce the evidence. What does he have to prove? That the evidence is fresh and that it was not previously available. Is that known to the law? Yes; a right of appeal on the grounds of fresh evidence in criminal and civil proceedings has been part of our law since the Charter of Justice and part of the law of Tasmania for more than a century-and-a-half. So it is not an unusual thing. It is fresh evidence but is it compelling? There is nothing wrong with a judge determining whether the evidence is compelling and whether, had that evidence been available, the result might have been different in that the person would have been convicted. That does not bind a future jury. So I disagree with the Bar Council of England in their assessment that because a judge had said it was compelling evidence that would automatically mean a jury would find it was. The jury might find - as they did in the case of the young lady I defended - that the evidence was not sufficient and so she was acquitted of perjury. Finally, in the case of a tainted conviction a judge is probably in the best position to determine whether the bribery, perjury or conspiracy was such as to taint the acquittal.

So on balance we will not oppose the legislation. It is going to come in right around Australia. Those States which are lucky enough to have a criminal code - Tasmania, Queensland and Western Australia - will find it easy to deal with this because, as the Attorney has correctly pointed out, the right is contained in our Criminal Code. It is a common law right but it is there in black and white and it can be amended. I would be the first to suggest that, having been amended by this bill when it becomes law, if there is a case of abuse then the public will know pretty quickly about it. If, for example, the application before the judge is rejected as being without merit then that is an end of the matter and there will not be a retrial. If the application is granted, there will be a retrial but the Crown will have to go back into the Supreme Court and put its case to 12 good and true men and women who will determine whether or not the Crown has proved the guilt of the accused.

What are those time-honoured words in the Supreme Court of Tasmania when the jury comes back to deliver its verdict? The judge's associate says to the jury, 'Mr Foreman, have the ladies and gentlemen of the jury reached a verdict?'. The foreman indicates, 'We have, Your Honour'. 'How say you? Is the prisoner at the bar, William Michael Hodgman, guilty or not guilty?' The foreman replies, 'Not guilty'. The associate then says, 'Hearken to your verdict as the court records it. You say that William Michael Hodgman is not guilty and that is the verdict of you all?'. 'Yes, Your Honour, it is.' The judge then says, 'Discharge the prisoner'.

Alternatively it goes like this. 'How say you? Is the prisoner at the bar, William Michael Hodgman, guilty or not guilty?' 'Guilty, Your Honour.' 'That is the verdict of you all?' 'It is, Your honour.' 'Hearken to your verdict as the court records it.' Now listen to those words - 'Hearken to your verdict' - because they are crucial. It is the jury's verdict in the Supreme Court of Tasmania, the oldest Supreme Court in the Commonwealth of Australia and, if I might say, the smallest but the best with great judges. 'Do you say that the prisoner at the bar, William Michael Hodgman, is guilty and so say you all?' 'Yes, Your Honour.' The judge then says, 'I remand the prisoner in custody for sentencing'.

The jury's verdict is recorded in the Supreme Court of Tasmania and under this bill tainted acquittals can be reopened, so why have we agreed not to oppose it? Because if clear, fresh and compelling evidence comes to light which, had it been available at the time of the original trial, would have led to the conviction of the accused for a serious crime such as murder, it is no longer possible to say that this person can hide behind the double jeopardy rule and say, 'You cannot touch me'. Therefore we do not oppose the bill, but we place on record that these conditions are taking away a right which has existed for 800 years in certain specific cases. We believe they are sufficiently narrow that we can take the position of not opposing the bill. We will not be proposing any amendments, nor will we be seeking to take this bill into Committee.

[4.50 p.m.]

Mr McKIM (Franklin - Leader of the Greens) - I have to say that I have approached this bill with some trepidation. As members would know, I am not a legal expert but I do take very seriously my responsibilities in the justice portfolio for the Greens and hope I have made reasonable contributions on legal matters in the past. I find some legal issues the most challenging non-moral issues that we have to deal with in this House and there is probably a reasonable argument that this is on some levels a moral issue. It is certainly a philosophical issue of some interest and complexity.

I have thought a lot about this bill since it was tabled. I have done some reading on it and I think we have to acknowledge that we are tampering with one of the most fundamental aspects of our justice system here. It is not something we should be doing lightly or something we should be doing without appropriate consideration and deliberation. I hope I have given appropriate consideration and deliberation to this amendment bill.

Double jeopardy is a fundamental aspect of our justice system. Currently the rule against double jeopardy prevents a person who has been acquitted or convicted of an offence from being tried again for an offence relating to the same conduct or event. As the minister said in his second reading speech, the risk of retrial is known as 'double jeopardy'. This is based on a very sound philosophical position and also on natural justice. That is why I think we should consider this very carefully before we tamper with the current provisions.

If that was the only aspect of this bill I was thinking of, my decision on recommending a position on this bill to my colleagues would have been quite easy, but it was not because there are also some compelling arguments as to why we should change the Criminal Code. The minister has made those arguments in his second reading speech and I will touch on a couple of them going forward in my speech.

I want to place on the record that it is my absolute understanding, and I certainly believe the understanding of minister and the shadow, that we are not abolishing protections but in fact creating exemptions to current protections. That is of some comfort to me because I would not support a complete abolition of those protections.

Another aspect of this matter that concerns me is that this might end up being the thin end of the wedge. I guess the slippery-slide argument is another analogy that is often put. Interestingly enough, it is an argument most put against measures that I sometimes bring into this House, such as gay marriage. One of the arguments against that is that people are worried that it will be the thin end of the wedge, so I acknowledge the irony inherent in my raising a similar argument. I would be very concerned if what we did today was the start of a far more serious erosion of legal protections that currently exist, and I want to place that very firmly on the record.

The minister has made it clear in his second reading speech that this bill relates to matters that have been progressed through SCAG, and I think it is appropriate if this is to be done that it be done consistently around the country, although I acknowledge that there are differences in acts in different jurisdictions that relate to the creation of crimes. There is a Crimes Act in some jurisdictions and a Criminal Code in others, but I acknowledge and place on the record that Tasmania is not moving alone on this issue.

This bill seeks to amend the code to allow for an exception to the rule in double jeopardy in three very specific circumstances: firstly, where there is fresh and compelling evidence, and that has to be in relation to an acquittal of a very serious crime. The first point I want to make - and this is a matter that I would like the minister to address - is that what we are doing here is saying where a person has been acquitted of a crime, if there is fresh and compelling evidence, then that person can be charged again.

Firstly, in relation to the definition of 'serious' crime it talks about the trafficking or manufacture of large commercial quantities of drugs. The other crimes, I might add, are very clear, and I understand the definitions that would apply in terms of attempted murder, murder, manslaughter, rape and aggravated armed robbery, but is 'the trafficking and manufacture of large commercial quantities of drugs' defined anywhere or is that a subjective definition? What is a 'large' commercial quantity? Is it different to a commercial quantity of drugs? If you are able to clarify that I would appreciate it.

Secondly, what we are doing here is creating an exception to the rule in double jeopardy in the circumstance where a person has been acquitted of a very serious crime and fresh and compelling evidence arises, and that could be, for example, DNA evidence which was not available at a previous trial due to the evolution of technology in the interim. Does this bill cover the situation where a person has been convicted of a very serious crime and DNA evidence then comes to light whereby they think they can run an argument that they are not guilty, or is that already covered under current law? If Mr Hodgman or Mr Llewellyn is able to assist me there I would appreciate it, because it seems to me -

Mr Llewellyn - I think that's covered by the normal avenues of appeal.

Mr McKIM - If you are able to clarify that in your response I would appreciate it; I will just mount the argument. It seems to me that it is quite reasonable and proper that if DNA evidence arises where a person has been acquitted they can then, in these very narrowly-defined circumstances, be retried. But what if a person has been convicted, say, 20 years ago, and DNA evidence arises in the interim that that person believes can prove their innocence? Do they already have the capacity to take that to appeal or should this bill create a provision for them to ask for a retrial on that basis?

Mr Michael Hodgman - I believe they could take a petition of mercy to the Court of Criminal Appeal and have their case reopened under the existing law.

Mr McKIM - I place on the record that I would prefer to see them able to achieve a retrial through the same mechanism as the Crown would seek a retrial once this bill is passed.

Mr Michael Hodgman - In reply in trying to assist you, they may well find that the evidence is so good that the Court of Criminal Appeal says, 'We'll now quash the conviction, you don't have to go through a retrial'.

Mr McKIM - Maybe we should give them both options.

Mr Michael Hodgman - Fair enough.

Mr McKIM - I just place that matter -

Mr Michael Hodgman - Sometimes 20 years later it's impossible to have a retrial because witnesses have died, et cetera, or left the State.

Mr McKIM - Yes, thank you; I am indebted to the shadow. I go back to the issue of what constitutes a large commercial quantity of drugs. That is in relation to the first exemption. By the way, I think the evolution of DNA technology is one of the stronger arguments for this amendment bill.

The second very narrow circumstance is where a person has been found not guilty but the original acquittal is tainted and that relates to a person who has been convicted of an administration of justice offence in connection with the proceedings in which the accused person was acquitted. I understand that there is a further test that it must be more likely than not that but for the commission of the administration of justice offence, the accused person would have been found guilty. I understand that and I think that is appropriate, although I do approach this entire bill with some trepidation and a level of concern.

The third circumstance is that the bill allows an acquitted person to be prosecuted through an administration of justice crime where that crime is connected to the original trial and I do not have any serious issues that I wish to raise on that basis.

There are a number of safeguards - maybe six, I think - built into this bill in relation to circumstances which have to arise before a court can order a retrial. I do not intend to go to all of those in detail but I did want to raise a matter on the sixth of those and this is on page 6 of your second reading speech, Minister. You say that at the retrial of the accused person, the prosecution will not be entitled to refer to the fact that the court has found that there appears to be fresh and compelling evidence against an acquitted person or that the accused person, more likely than not, would have been convicted but for the commission of the administration of justice offence. Just to be clear, I think that is entirely appropriate. I am not arguing against that. But it raised the question in my mind on whether there is any prohibition on the prosecution from even being able to mention an original trial. I do not know how this operates currently because I know that people are retried. In fact, there has been one very high profile person who has been retried recently in Tasmania and on the point of interjection is Mr Hidding with a puzzled look on his face which says, 'Who is that?'. It is Mr Green.

Mr Hidding - Well, indeed.

Mr McKIM - The point I am making is that I do not know what the current law is in relation to what reference can be made by the prosecution to any original trial.

Mr Michael Hodgman - You can refer to the evidence in the previous trial. So if a witness gives different evidence, you can say, 'But, didn't you say??' But that is it. You do not go into the verdict or anything else, only the evidence.

Mr McKIM - You are prohibited from going to the verdict?

Mr Michael Hodgman - Absolutely.

Mr McKIM - Mr Hodgman, that would apply in the event that someone was retried under the auspices of this bill?

Mr Michael Hodgman - The judge tells the jury, 'If you know the result of the earlier trial, ignore it. You now have to look at it afresh.'

Mr McKIM - That will apply equally, once this bill is passed, to retrials on the exemptions that we are granting in this bill?

Mr Michael Hodgman - Correct.

Mr McKIM - Thank you. I am, again, indebted to you for that clarification.

Mr Michael Hodgman - Thank you.

Mr McKIM - You are getting an easy run here, Minister. The shadow is doing most of your work for you.

Mr Llewellyn - All interruptions are disorderly.

Mr McKIM - I agree, but I am not silly enough to fall into that trap, Minister. That is all I really wanted to say on the detail of this bill. As I said, I still have philosophical concerns with what we are doing because we are seeking to tamper with one of the most fundamental aspects of our justice system and one of the most fundamental protections built into our justice system.

Mr Llewellyn - Do you have philosophical amendments?

Mr McKIM - Thank you for the segue, Minister - he has asked if I have philosophical amendments. I actually do. Well, it is not a philosophical amendment; it is an amendment that will seek to insert a sunset clause of 31 December 2013 into this act. What I am not trying to do is ensure that the effect of this amendment act will expire on 31 December 2013 although that is, in practical terms, what the amendment will do. What I am trying to do here is ensure that Parliament revisits this matter in about five years' time. In other words, Parliament would have to come back, have another think about it, have a look at how it has worked and then make a conscious decision to proceed down the course that this bill sets.

Mr Llewellyn - The Parliament can do that anyway.

Mr McKIM - By interjection, the minister quite rightly points out that Parliament can do it anyway. This Parliament always remains the master of its own destiny. This amendment sets a default position that unless the Parliament comes back and makes a proactive decision, then these measures will lapse.

Mr Llewellyn - I think the member should find a seat in the upper House.

Mr McKIM - Mr Parkinson might have one going in a couple of years, Mr Llewellyn, mightn't he? He has been doing such a bad job recently - a couple of legal matters under way himself at the moment - defamation, calling Mr Burch a thief and a liar. Dear me.

Mr SPEAKER - Order. I think we should get back on to the bill.

Mr McKIM - What I am proposing in this amendment is that today we insert in this bill a requirement to ensure that the Parliament comes back and makes a decision to carry on with these reforms. I expect the Parliament would decide to carry on with them. I am not expecting that the Parliament would actually refuse to consider these matters and just allow them to lapse. I think that is unlikely. We make amendments and laws in this place and sometimes there are unintended consequences to what we do. Because we are human beings and we are fallible, we cannot foresee all of the impacts of the laws that we make in this place. So in a way this amendment is an acknowledgment of our fallibility in here.

On that basis it affords me some level of comfort and it also affords me a level of comfort because if it is included I will be able to go home tonight in the knowledge that if we do have it badly wrong - if what we are doing in here does lead to a fundamental erosion of natural justice - that the Parliament will be required to at least consider the impacts of these amendments prior to 31 December 2013 and if it does not then these amendments will lapse. I will be seeking to have this bill taken into the committee stage so that I am able to move my amendment. We have some reservations but we do not intend to oppose this bill. And so that it is not thought that I am holding the House hostage in any way, even if the minister does not support our amendment, we still do not intend to oppose this bill. We are not trying to be unreasonable here. We are just trying to offer some level of comfort to all legislators and to the community that we acknowledge our fallibility as parliamentarians and acknowledge that these amendments may have consequences that we cannot foresee. We believe it is appropriate that Parliament reconsiders this matter within about five years if it wishes the effect of these provisions to continue.

[5.10 p.m.]

Mr LLEWELLYN (Lyons - Minister for Justice) - I thank the shadow attorneys-general for their comments. Mr Hodgman mentioned that this provision has been in the Criminal Code and criminal law for a long time. This is a very serious issue and, as I mentioned in the second reading speech, it has been considered over a long period of time. Changes were made, as again the honourable member for Denison, Mr Hodgman, pointed out, in the British Parliament and they have now been followed up by similar provisions in the Australian context, but only through a fairly long and carefully assessed process involving the ministerial council of attorneys-general and more recently the Council of Australian Governments.

So we have a national approach and all jurisdictions have agreed that they will take this action. It obviously takes a slightly different form in the different States because they have different legislation but the fundamentals associated with the double jeopardy issue are the same in the three areas: the prosecution for an administration of justice offence connected to the original trial, the retrial of an original or similar offence where there appears to be fresh and compelling evidence, and a retrial of the original or similar offence where the acquittal is tainted. They are the three areas where we are changing the law.

The member for Franklin, Mr McKim, raised a couple of questions and also foreshadowed an amendment. In regard to his first question - what constitutes a very serious crime or a crime with regard to a large commercial quantity of drugs? - there is no real definition of a large commercial quantity but that is a matter of discretion for the Court of Appeal when the application is actually made. The court will determine in that instance whether or not it fits that criterion of a large commercial quantity. That is the only thing we can do if we do not have that defined. It would be difficult to define it. One would have to say so many kilograms of this drug or so many grams of that one or whatever. It is a matter of some discretion but in this case the court is the right instrument to provide that discretion.

Mr McKim - Current law prescribes certain levels that relate to a commercial or a non-commercial quantity of drugs. Are you saying those levels are not relevant in any determination of what is a large commercial quantity of drugs and that it is entirely a matter of the discretion of the Court of Appeal?

Mr LLEWELLYN - The Misuse of Drugs Act has a schedule which determines the trafficable quantities of drugs et cetera.

Mr McKim - That is right and what I am asking you to confirm is that that is irrelevant in terms of any judgment made by the Court of Appeal about what constitutes a large commercial quantity of drugs.

Mr LLEWELLYN - It would have to be at least as much as the definition but to be large it would have to be above that, so the definition would be a matter for the court.

The other issue canvassed probably received an answer from Mr Hodgman. If you have a look in the Criminal Code section 419, 'Prerogative of mercy' it says:

'The Attorney-General, on the consideration of any petition for the exercise of His Majesty's mercy, having reference to the conviction of any person or to any sentence passed on a convicted person, may -

(a) refer the whole case to the Court, and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b) if he desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon, and the Court shall consider the point so referred and furnish the Attorney-General with its opinion thereon accordingly.'

Now, of course, once an opinion is given there is also a prerogative of the Attorney-General to issue, with the Premier's consent, a pardon through the Governor. I think there is adequate opportunity for the sort of thing that the honourable member mentioned to occur. If in the future someone was convicted of a serious offence and new evidence arose as a result of that, say DNA evidence, that person could actually have that matter appealed and be acquitted. There was another case recently that was brought to my attention where that very fact occurred with Attorney-General Hull in Victoria, but unfortunately the poor person who was acquitted due to the evidence had already been executed a long time ago, so I suppose he was pardoned in retrospect. It did not help him too much but from his family's and descendants' point of view it would have been of great assistance. That was an application just recently of that very point.

As to the sunset clause, I just ask the member for Franklin, Mr McKim, to consider this. He is contemplating a five-year review in the legislation. It may well be, and it is highly probable, that not one case will occur between now and 2013.

Mr McKim - I would say that is unlikely. I reckon DNA will probably mean that at least one case will occur, but I take your point that it is at least possible that no cases will occur.

Mr LLEWELLYN - This application is very narrow - and I think it is unlikely, personally. The other thing is that this is nationally-consistent legislation which has already been applied in some other States where there is no sunset clause as such. The amendment says that the act expires on 31 December 2013, which means that if you did not review the legislation it would not exist any more.

Mr McKim - These amendments would not exist in the Criminal Code any more.

Mr LLEWELLYN - There could have been a case to have a provision in there that Parliament reconsider the matter after -

Mr McKim - That is, in effect, what this amendment does.

Mr LLEWELLYN - I know, but it is putting another onus on the Parliament. I accept that that is what the member wants to do. Given the context of what I have just said and the fact that the Parliament can actually review this if it wishes to in the future anyway, I am not persuaded by the amendment.

I thank members for their contributions and their concern about this complex issue. It is one of longstanding law. It is a bit like the issue I had to deal with some years ago on the question of adverse possession of land. I remember the department came to see me and said, 'Minister, you cannot really deal with this issue. It goes back to the Magna Carta and we not really want to meddle with this provision.' I think we have a much simpler system now in that regard because if the owner of land pays the rates on the land, they own the land and if they do not, they do not own the land, and it is pretty clear in this definition now.

I think we can change law that is enshrined in history if we wish but we do have to be very careful, and I accept that point. I thank members for their contributions.

Bill read the second time.