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Burton, Kelley; Henriksen, Simone; Henriksen, Teddy --- "Double Jeopardy Exceptions in Queensland: One Bite at the Cherry" [2023] PrecedentAULA 63; (2023) 179 Precedent 21

Double jeopardy exceptions in Queensland: One bite at the cherry

By Kelley Burton, Simone Henriksen and Teddy Henriksen

Queensland’s double jeopardy exceptions came under the spotlight again on 24 April 2023 when a previously acquitted person was charged in relation to a murder more than a decade ago, on what police described as ‘fresh and compelling evidence’.^[1] The former Attorney-General and Minister for Justice in Queensland, Jarrod Bleijie, acknowledged ‘[a]dvances in technology, particularly DNA testing, means new evidence may become available years after a trial. It would be an injustice if that new evidence could not be considered by a jury’.^[2]

This article explores Queensland’s double jeopardy defence and exceptions, as well as the first two cases to take a bite at the cherry and test the double jeopardy exceptions.

DOUBLE JEOPARDY DEFENCE

At the outset, defining double jeopardy and identifying its rationale is a worthwhile endeavour. Double jeopardy is a defence designed to prevent an accused person from being retried for the same act or omission arising out of the same circumstances. Double jeopardy is distinct from double punishment as the latter prevents an accused person from being punished twice for the same act or omission arising out of the same circumstances.^[3]

The rationale for double jeopardy is to curb the State’s unfettered power and resources regarding retrials to ensure an efficient administration of justice, as well as closure for an accused person and their loved ones. In addition, double jeopardy helps to evade the loss of public confidence in the judicial system by preventing the same case being repeatedly retried, and thus precludes an inconsistent verdict in a subsequent trial. Queensland derived double jeopardy from England, where it has been sustained for approximately 800 years.^[4]

The Queensland double jeopardy defence is provided in the Criminal Code Act 1899 (Qld), s17. The application depends on two sequential steps. Initially, a court has to ascertain whether there was finality in the first trial, that is, a conviction or an acquittal. Secondly, that court has to determine whether the offences in the first and subsequent trials are alternatives. This second step depends on whether the offence in the subsequent trial is an alternative to the offence in the first trial and, if not, whether the offence in the first trial is an alternative to the offence in the subsequent trial. A court gives a general verdict where the offences are alternatives in the first trial. Further, a court gives a partial verdict where the offences are alternatives in the second trial.^[5] Offences are alternatives if they are specified as such in the Criminal Code Act 1899 (Qld) ch 61 or if they are joined on the indictment. The accused person cannot use the defence of double jeopardy unless the offences are alternatives. If the offences are alternatives, double jeopardy applies under s17 to prevent the subsequent trial. However, two double jeopardy defence exceptions were introduced in 2007.^[6]

DOUBLE JEOPARDY EXCEPTIONS

The double jeopardy exceptions enable the director of public prosecutions (DPP) to make one application to the Court of Appeal, which may make an order for an acquitted person to be retried.^[7] Both exceptions only apply where the accused person is acquitted.^[8] If the accused person is acquitted of the offence charged but convicted of a lesser offence, the double jeopardy exceptions will not apply.^[9] The Court of Appeal will only reopen a case if it is in the ‘interests of justice’, meaning that there is ‘likely’ to be a ‘fair retrial’.^[10] In making such an assessment, the Court of Appeal considers the time since the offence and ‘whether any police officer or prosecutor ... failed to act with reasonable diligence or expedition’.^[11]

The exceptions were introduced in response to a prominent Queensland case where the accused person was acquitted on appeal of murdering a toddler and the High Court stated that another trial using fresh evidence would breach double jeopardy and prosecuting the accused person for perjury would have undermined the earlier acquittal.^[12] The exceptions are intended to keep double jeopardy aligned with advances in forensic science.

The first double jeopardy exception applies where the offence is murder, and fresh and compelling evidence emerges after the accused person’s acquittal.^[13] Fresh and compelling are critical elements. Fresh evidence is defined as ‘not adduced in the proceedings in which the person was acquitted’ and ‘could not have been adduced in those proceedings with the exercise of reasonable diligence’.^[14] Compelling evidence is ‘reliable’, ‘substantial’ and ‘highly probative of the case against the acquitted person’.^[15] While this double jeopardy exception is limited to murder, another exception applies to a wider range of offences.

The other double jeopardy exception applies to a tainted acquittal of a 25 year offence.^[16] A 25 year offence ‘means an offence punishable by imprisonment for life or for a period of 25 years or more’.^[17] A tainted acquittal transpires where an accused person is convicted of an administration of justice offence, and but for that offence, they would have been ‘more likely than not’ convicted of the 25 year offence.^[18] An example of an administration of justice offence is perjury.^[19] Importantly, both double jeopardy exceptions only permit a case to be reopened once^[20] and the first case to take a bite at the cherry was Director of Public Prosecutions v TAL.^[21]

FIRST CASE TO TEST THE EXCEPTIONS

The Queensland Court of Appeal decision in Director of Public Prosecutions v TAL is significant because it was the first application under the double jeopardy exceptions in Queensland for the retrial of a person who was acquitted of murder.

Facts of original trial

On 20 September 1987, a woman was found dead in the bedroom of her home. The woman had been stabbed four times in the chest and five times in the back.^[22] The woman was last seen alive on the evening of 12 September 1987 when she attended a work function.^[23] The state of the decomposition of the woman’s body and several other facts suggested that she had been killed that evening after returning home from the work function.^[24]

The deceased woman and the respondent had been in a romantic relationship for some weeks prior to her death.^[25] The couple were seen together at the function on the evening of 12 September 1987.^[26] After the function, the woman and the respondent returned together to the woman’s home where they watched television and had coffee.^[27] The respondent could not remember if he had been in the woman’s bedroom on the evening of 12 September but confirmed that he had on previous occasions.^[28] The respondent cooperated with police, giving samples of his blood and hair and access to his car.^[29]

Evidence was collected from the murder scene and the respondent’s car. Blood samples from the pillow found next to the body were consistent with that of the respondent.^[30] Blood found on the underwear of the deceased was also consistent with that of the respondent.^[31] Hairs found on the deceased’s clothing were visually consistent with those of the respondent.^[32] No relevant evidence was found in the respondent’s car.^[33] No murder weapon was ever found.^[34] The respondent was charged with the murder of the woman but was acquitted at trial.^[35]

The evidence led by the DPP in the application for retrial

New DNA evidence arose out of a comparison of DNA undertaken in a laboratory in Victoria, which received samples from authorities in Queensland, in 1990. DNA extracted from the pillow fabric found at the murder scene in 1987 was compared with that of the respondent. A match was found between the respondent’s DNA profile and DNA found on the sample of the pillow fabric labelled ‘3A4’ and a partial match with the sample ‘3A3’.^[36] The probability of a partial match with the technology at the time was expected to be one person in 600.^[37]

Sample 3A4 was tested again in 1999 in Queensland. This test showed a partial match with the respondent.^[38] With advances in technology, it was found that the ‘probability that the DNA in sample 3A4 was contributed by somebody other than the respondent was said to be about one in 4800 based upon Queensland Caucasian data.’^[39] Samples 3A3 and 3A4 were tested again in July 2000 and it was found that the probability that the DNA on the fabric had come from someone other than the respondent was one in 82 billion.^[40] A further test was carried out in March 2015, increasing the probability that someone other than the respondent contributed to the DNA to more than one in 100 billion.^[41]

Was this evidence ‘fresh’?

There was no dispute that the evidence was fresh as defined in s678D(2). The evidence was in the form of new DNA comparisons, which were not available at trial and only became available due to advances in technology.^[42]

Was the evidence ‘compelling’?

The DNA evidence was found not to be compelling as defined in s678D(3).^[43] Three key issues arose regarding the DNA evidence led by the DPP.

First, the identification and storage of samples during 1980 to 2000 was not as sophisticated as it is today.^[44] The identification and storage practices used during this period may have had an impact upon the integrity and reliability of DNA samples collected and stored.^[45] This meant that the evidence was not reliable.^[46]

Second, the fact that the respondent’s DNA was found on the samples of the pillow fabric was not conclusive that it had come from his blood. DNA may come from sources such as skin cells as well as from blood.^[47] Further, biological material, such as skin cells, may be deposited onto a surface indirectly. For example, skin cells can be deposited by one person touching the body or clothing of another person, which can then be transferred to another surface.^[48] The DNA evidence was not compelling because it only established that the respondent had been in the deceased woman’s home.^[49] It was insufficient to prove that the respondent killed the woman and therefore not probative of this fact.^[50] It was acknowledged that evidence of the respondent’s DNA was key to a finding of guilt, however, this needed to be established beyond reasonable doubt.^[51] The fact that the DNA could have been deposited innocently challenged the burden of proof.

Third, at trial the prosecution advanced a theory that the blood on the pillow had been deposited when the respondent injured himself when he killed the woman. However, there was no evidence to establish that the respondent had suffered any injury. And so, the Court of Appeal refused the application for a retrial. While the first case to test the double jeopardy exceptions failed to re-open the case, there is a second case in progress.

SECOND CASE TO TEST THE EXCEPTIONS

In December 2022, Queensland detectives reopened the investigation to a murder committed more than a decade ago after receiving what the police described as ‘fresh and compelling evidence’.^[52] At that time, police noted that they would apply for a previously acquitted person to be retried for the offence of murder in connection with their investigation.^[53] On 24 April 2023, as a result of those investigations, an acquitted person was charged again in relation to the murder.^[54]

Importantly, there are legal restrictions preventing the publication of information identifying a person who is the subject of an application to be retried under double jeopardy exceptions.^[55] In particular, the Criminal Code Act 1899 (Qld), s678K states:

‘(1) A person must not publish any matter for the purpose of identifying or having the effect of identifying an acquitted person who is being retried under this chapter or who is the subject of–

(a) a police investigation, or an application for a police investigation, mentioned in section 678I; or

(b) an application for a retrial, or an order for retrial, under this chapter.

(2) Subsection (1) does not apply if the publication is authorised by order of the Court or of the court before which the acquitted person is being retried.

(3) The relevant court may make an order authorising publication only if the court is satisfied that it is in the interests of justice to make the order.

(4) Before making an order under this section, the relevant court must give the acquitted person a reasonable opportunity to be heard on the application for the order.

(5) The relevant court may at any time vary or revoke an order under this section.

(6) The prohibition on publication under this section ceases to have effect, subject to any order under this section, when the first of the following paragraphs apply–

(a) there is no longer any step that could be taken which would lead to the acquitted person being retried under this chapter;

(b) if the acquitted person is retried under this chapter – the trial ends.

(7) Nothing in this section affects any prohibition of the publication of any matter under any other Act or law.

(8) A contravention of a prohibition on publication under this section is punishable as contempt of the Supreme Court.’

Consequently, while there is still a chance for the acquitted person in the second case to be retried for murder, we cannot explore this case any further at this time.

CONCLUSION

There is only one opportunity to reopen an acquittal for murder on the basis of the double jeopardy exceptions and the first Queensland case failed to do so.^[56] While the DNA evidence in the first case was ‘fresh’, it was not ‘compelling’, and so the Court of Appeal refused the application to reopen the murder case. This first case underscores the very high bar that needs to be met before the Court of Appeal will make an order for a retrial for murder following an acquittal. For now, the second Queensland case to take a bite at the cherry cannot be explored further because there is a restriction on publication and the acquitted person could still be retried. As a result, we need to watch this space.

Associate Professor Kelley Burton is the Law Discipline Lead for the School of Law and Society at the University of the Sunshine Coast (UniSC), Co-convenor of the Legal Education Associate Deans Network, lawyer and mediator. Kelley has expertise in criminal law and procedure, and evidence.

Dr Simone Henriksen is an Associate Lecturer in Law at UniSC. Simone's research areas include the regulation and governance of the health care sector. Simone also has a particular interest in law reform around the exceptions to double jeopardy in Queensland.

Dr Teddy Henriksen is a Lecturer in Law at UniSC. Teddy’s research interests focus on how the law, including intellectual property law, affects people gaining timely, affordable access to the medicines they need. Teddy also has an interest in exceptions to double jeopardy.

^[1] QPS Media, ‘Double Jeopardy – Murder arrest’, myPolice Queensland Police News (24 April 2023) <https://mypolice.qld.gov.au/news/2023/04/24/double-jeopardy-murder-arrest/>; ‘Police seek retrial of man under state's double-jeopardy laws’, In Queensland (24 April 2023) <https://inqld.com.au/news/2023/04/24/police-seek-retrial-of-man-under-states-double-jeopardy-laws/>; W Barnsley, ‘Queensland’s double jeopardy laws used to charge man over 2009 murder after “fresh” evidence’, 7NEWS.com.au (24 April 2023) <https://7news.com.au/news/qld/queenslands-double-jeopardy-laws-used-to-charge-man-over-2009-murder-after-fresh-evidence-c-10439265>.

^[2] J Bleijie, ‘Double jeopardy reform means justice for victims’, The Queensland Cabinet and Ministerial Directory (Media Statement, 1 May 2014) <https://statements.qld.gov.au/statements/74602>.

^[3] Criminal Code Act 1899 (Qld) (Criminal Code) s16.

^[4] K Burton, ‘Double Jeopardy: The Queensland Reform’ (2008) 28(3) Proctor 21–22.

^[5] O’Halloran v O’Byrne [1973] WASC 103, [7]–[10].

^[6] Criminal Code, above note 3, ch 68.

^[7] Ibid ss678, 678B(1) and 678C(1).

^[8] Ibid s678A(1).

^[9] Ibid s678A(2).

^[10] Ibid ss678C(1)(b) and 678F(2).

^[11] Ibid s678F(3).

^[12] R v Carroll (2002) 213 CLR 635.

^[13] Criminal Code, above note 3, s678B.

^[14] Ibid s678D(2).

^[15] Ibid s678D(3).

^[16] Ibid s678C and E.

^[17] Ibid s678(1).

^[18] Ibid s678E(2).

^[19] Ibid s678(1), ch 16 and s124.

^[20] Ibid s678G(1).

^[21] [2019] QCA 279 (DPP v TAL).

^[22] Ibid [2].

^[23] Ibid [3].

^[24] Ibid.

^[25] Ibid [4].

^[26] Ibid.

^[27] Ibid [5].

^[28] Ibid.

^[29] Ibid.

^[30] Ibid [6].

^[31] Ibid [7].

^[32] Ibid [8].

^[33] Ibid [9].

^[34] Ibid [10].

^[35] Ibid [12].

^[36] Ibid [13].

^[37] Ibid.

^[38] Ibid [14].

^[39] Ibid.

^[40] Ibid.

^[41] Ibid.

^[42] Ibid [13]–[14].

^[43] Criminal Code, above note 3, s678D(3).

^[44] DPP v TAL, above note 21, [53].

^[45] Ibid.

^[46] Ibid [66].

^[47] Ibid [54].

^[48] Ibid.

^[49] Ibid [65].

^[50] Ibid.

^[51] Ibid [63].

^[52] ‘Double Jeopardy – Murder arrest’, above note 1.

^[53] Ibid.

^[54] Ibid; ‘Police seek retrial of man under state's double-jeopardy laws’ and Barnsley, above note 1.

^[55] Criminal Code, above note 3, s678K.

^[56] DPP v TAL, above note 21.