The Flip Side of Double Jeopardy – Australian First for Prisoners’ Right to Appeal

Many of the Australian States have addressed the circumstance of when a defendant is found not guilty but evidence re-analysed years later implicates them in a rape or murder by allowing the State to retry the defendant. However, in an Australian first, South Australia has recently passed legislation that brings a similar right to convicted defendants. In this post, Adelaide Law School’s Kellie Toole analyses the amendments against the need to consider more systemic changes to the conduct of criminal trials in the State.

Thanks to the 1999 thriller starring Ashley Judd and Tommy Lee Jones, many Australians are familiar with the legal principle of ‘double jeopardy’, and hopefully are also aware that the principle was wildly misrepresented in that movie.[1]

It is less well known that double jeopardy is just one part of the broader ‘principle of finality’, which not only stops a person acquitted of a crime from being tried again for the same crime, but also limits the appeal rights of people convicted of criminal offences.

South Australia has just expanded the rights of any person to appeal their conviction and sentence. While this is a great advance for individual defendants, the Parliament took a narrow approach to the problem of wrongful convictions and failed to consider systematic changes to the conduct of criminal trials.

The finality principle is well founded. When a defendant is found not guilty they should not have to constantly watch over their shoulder wondering whether they will be prosecuted again. Similarly, victims of crime and those close to them should not have to live in fear of traumatic crimes being re-lived through baseless appeals.

However, closing the door on criminal matters prevents the court from intervening where new evidence suggests that mistakes were made in the past. This has become a significant issue in recent years where scientific developments, particularly the ability to re-test DNA, have created doubt about original decisions that cannot be reconsidered either for or against a criminal defendant.

The advances in forensic science raised the question: if a defendant is found not guilty but evidence re-analysed years later implicates them in a rape or murder, shouldn’t they be tried again?

South Australia responded to this question in 2008 by limiting the application of double jeopardy so that a person can be re-tried where ‘fresh’ and ‘compelling’ evidence of certain serious crimes comes to light.[2]

However, until now the finality principle had not been modified to benefit defendants who are wrongly convicted. As is still the case throughout the rest of Australia, defendants were entitled to a fair trial and then only one appeal.

Once the right to appeal was exhausted, a person could petition for mercy to the state Governor, who routinely refers it to the Attorney General. As the petitions were not heard in an open court, and legal advice given in relation to them was not available through freedom of information applications,[3] there was a lack of transparency regarding their consideration and a general perception that political rather than legal factors determined whether they were successful. In the rare case of a successful petition, the person is only pardoned and their conviction stands.

There is also a constitutional right of appeal to the High Court,[4] but special leave needs to be granted and the established practice is that the High Court cannot receive evidence on appeal from a state court exercising state jurisdiction.[5]

The question then has arisen that if ‘fresh’ and ‘compelling’ evidence can justify the re-trial of an acquitted person, should it not justify another appeal for a convicted person?

In an Australian first, on 19 March 2013 the South Australian Parliament passed the Statutes Amendment (Appeals) Bill 2012 to enact Part 11 of the Criminal Law Consolidation Act 1935 (SA) that will allow second and further appeals against conviction and sentence.

The Bill reflects the language of the provisions limiting double jeopardy, but goes beyond bringing parity to the state and defendants, and gives greater latitude to convicted people than it does to police or prosecutors.

The Director of Public Prosecutions can only re-try a serious offence, such as murder or ‘aggravated’ rape. However, a person convicted of any offence, no matter how minor and in which court, can now apply for second and further appeals.

The Bill has addressed concerns that prisoners will waste court resources by lodging appeals without any merit by requiring that an appellant must satisfy two judges of the Supreme Court not only that there is ‘fresh’ and ‘compelling’ evidence, but that the appeal should be heard ‘in the interests of justice’ if there has been a ‘substantial miscarriage of justice’.

If the Supreme Court is satisfied that an error was made in the initial trial and appeal, it can quash the conviction and direct a verdict of not guilty, or order a new trial.

The standard required for an appeal to be allowed is not so low that it will open the floodgates for disgruntled prisoners to pursue frivolous appeals, but is not so high that the right will be impossible to exercise. It is a welcome advance for defendants’ rights that is also sensitive to the interests of the broader community.

However, the Parliament was invited by the Legislative Review Committee to consider measures to try and avoid wrongful convictions and deliver a fairer trial process for all defendants. This challenge was declined in favour of the limited approach of simply correcting mistakes as they occur, on the basis that ‘South Australia is not Texas. This State is not awash with wrongful convictions and the falsely imprisoned.’[6]

Scientific and expert evidence has become a critical and confusing area. It is highly persuasive to judges and juries and yet very difficult for them to understand, especially when presented and challenged on a partisan basis under the adversarial system.

A number of options were put to Parliament to demystify scientific evidence for courts. This included encouraging the prosecution and the defence to agree on certain evidence before trial and present it to the court on a bipartisan basis, and allowing judges and juries to question expert witnesses as necessary.[7]

Unfortunately, the Parliament opted not to take a systematic review of the pre-trial and trial procedures related to the presentation of specialised evidence. Even more unfortunately it did not offer an indication that such a review was likely any time in the future.

Rather Parliament seems to have decided that rather than take innovative steps to optimise fairness at trial, it will introduce the minimal steps necessary to rectify unfairness at trial and be satisfied with the very modest standard of fairness of ‘higher than in Texas’.

Kellie Toole is an Associate Lecturer at the Adelaide Law School. In 2006 she spent 4 months volunteering at the Gulf Region Advocacy Center (GRACE) in Houston Texas working with poor people facing the death penalty.

[1] Ashley Judd was framed by her husband for his supposed murder, and was convicted and imprisoned for the offence. She learned in prison that upon release she could openly kill her husband because double jeopardy would prevent her being charged with the same murder twice. In fact, double jeopardy only prevents someone being charged with the same offence on the same facts, not in entirely different circumstances, and only applies where a person has been acquitted. ABC Television, ‘Double Bind’, Australian Story, 7 April 2003 provides a good discussion of the principle and its effect.

[2] Criminal Law Consolidation Act 1935 (SA) part 10.

[3] Osland v Secretary to the Department of Justice [No 2] (2010) 241 CLR 320.

[4] Australian Constitution s 73 (ii).

[5] Eastman v The Queen (2000) 203 CLR 1.

[6] South Australia, Parliamentary Debates, Legislative Council, 19 February 2013, 3167.

[7] Legislative Review Committee, Parliament of South Australia, Inquiry into the Criminal Cases Review Commission Bill 2010 (2012).

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