For teachers and students: see the end of this post for a three-level guide designed to assist in discussion and understanding of this case and double jeopardy.

 

Jay Hart, the man tried and acquitted of murdering 4-year-old Evelyn Greenup and 16-year-old Clinton Speedy-Duroux, is on the brink of being tried again for their murders.

Mr Hart, who has reportedly changed his name since the initial trials, was a key suspect in the Bowraville murders, and was charged with the murder of two of the three Aboriginal children who disappeared from that North Coast NSW town in late 1990 and early 1991. The two trials proceeded separately, in a move the prosecution said denied the respective courts the chance to see crucial evidence about the similarities between the two children’s deaths.

The Bowraville community, with the support of NSW Police, has long pushed for Mr Hart to be re-tried for the offences in the wake of changes to evidence law, but have encountered legal and political hurdles along the way, mostly notably questions about double jeopardy legislation.

Finally, last week, NSW Attorney-General Gabrielle Upton announced she would make an application to the NSW Court of Criminal Appeal for a retrial. The Court will then rule whether Mr Hart’s case falls within one of the exceptions to the double jeopardy rules. This article will examine the details of that process.

Double jeopardy

‘Double jeopardy’ refers to, in the words of the Fifth Amendment to the US Constitution, being “twice put in jeopardy of life or limb” for the same offence. In other words, double jeopardy is the threat of being punished more than once for the same criminal offence. Various protections against double jeopardy are found in legal systems around the world, including in Australia.

These protections attempt to shield a person from repeated punishments for the same offence, but also from repeated attempts at conviction. One of the key protections against double jeopardy is the rule that people ought not to be charged again with an offence of which they have already been acquitted. This is the protection most relevant when considering Mr Hart’s situation. Mr Hart was tried for Clinton Speedy-Duroux’s murder, and acquitted in 1994. Later on, he was tried for Evelyn Greenup’s murder, and acquitted of that too, in 2006.

Certain exceptions exist to double jeopardy protections, most obviously Crown appeals against sentences, but they are narrow and strictly defined. Until 2006, there was no mechanism for the prosecution to apply to overturn acquittals.

Changes to double jeopardy legislation

In 2003, the Carr Labor Government released an exposure Bill, called the Criminal Appeal Amendment (Double Jeopardy) Bill 2003. That Bill was intended to amend the Criminal Appeal Act 1912 (NSW) to allow a person to be retried for an offence if there was “fresh and compelling evidence of guilt”. This change was in line with UK legislation that had been introduced earlier that year, and followed on the heels of the High Court’s decision in R v Carroll [2002] HCA 55, where the Court found that the Queensland Government’s attempt to try Raymond Carroll for perjury because of his testimony in his murder trial amounted to an attempt to try him again for that murder, for which he had already been acquitted. The Court found the perjury proceedings were “vexatious and oppressive”, and amounted to an infringement of the rule against double jeopardy. The decision was highly controversial.

The Carr Government’s exposure Bill was debated in Parliament committees, and discussed at federal level, but was ultimately not passed.

In 2006, the Carr Labor Government tried again, and introduced the Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2006, which was to amend the Crimes (Appeal and Review) Act 2001 (NSW). These amendments were substantially the same as those floated back in 2003, and passed in the UK.

This Bill was passed by Parliament, and the Bowraville murders were mentioned by a number of parliamentarians during debate.

Principally, the amended Crimes (Appeal and Review) Act 2001 now provided, in section 100, that:

(1)  The Court of Criminal Appeal may, on the application of the Director of Public Prosecutions, order an acquitted person to be retried for a life sentence offence if satisfied that:

(a)  there is fresh and compelling evidence against the acquitted person in relation
to the offence, and

(b)  in all the circumstances it is in the interests of justice for the order to be
made.

The Bowraville retrial

The Bowraville community, with the support of NSW Police, has long pushed for Mr Hart to be tried again for the murder of Evelyn Greenup and Clinton Speedy-Duroux, if not for Colleen Walker as well.

Although section 100 of the Crimes (Appeal and Review) Act 2001 says that the Director of Public Prosecutions must apply to the Court of Criminal Appeal for such a retrial, section 115 of the Crimes (Appeal and Review) Act 2001 says that:

(1)  Any function that by or under this Act is conferred or imposed on the Director of Public Prosecutions may, at any time and in any case, be exercised by the Attorney General, and may be so exercised even if the same or a similar function has already been exercised in the same case by the Director of Public Prosecutions.

(2)  Any function exercised by the Attorney General pursuant to this section is taken to have been exercised by the Director of Public Prosecutions.

Thus, Ms Upton may also apply to the Court of Criminal Appeal for Mr Hart’s retrial.

The primary barrier to this occurring has always been thought to be the section mentioned above, section 100 of the Crimes (Appeal and Review) Act 2001.

That section mandates that “fresh” and “compelling” evidence must be available. Section 102(2) of the Act provides that:

(2)  Evidence is fresh if:

(a)  it was not adduced in the proceedings in which the person was acquitted, and

(b)  it could not have been adduced in those proceedings with the exercise of reasonable diligence.

Section 102(3) of the Act provides that:

(3)  Evidence is compelling if:

(a)  it is reliable, and

(b)  it is substantial, and

(c)  in the context of the issues in dispute in the proceedings in which the person was acquitted, it is highly probative of the case against the acquitted person.

An issue arises because the evidence said to be most compelling in Mr Hart’s case – evidence of similarities between the death of Evelyn Greenup and Clinton Speedy-Duroux – was tendered in the 1994 trial, but was not admitted into court because of the rules of evidence at the time. This has raised concerns about whether or not it is “fresh” evidence.

The significant changes to the rules of evidence brought about by the Evidence Act 1995 (NSW) mean that this evidence may now be admissible. The Australian newspaper quotes Chris Barry QC, a leading Sydney barrister, as saying:

Because of that lesser standard [in the new Evidence Act], evidence that was not previously admissible is now ­admissible, so to that extent it ­becomes fresh evidence.

However, there is little guidance from previous cases on what the word “adduced” means in section 102(2), and whether it includes evidence that has been tendered, but not admitted. Mr Wood’s report on this section, discussed below, proceeded on the assumption that the evidence was not fresh.

However, there are also reports that police work over the years has uncovered further “fresh” evidence, including:

The evidence of two delivery drivers who claim they saw a white man, matching Hart’s description, standing over an Aboriginal teenager who was lying on the road outside Bowraville the morning Clinton disappeared.

Despite these concerns, and the long history of previous Attorneys-General refusing to make applications for a retrial, Ms Upton announced last week that she would apply to the NSW Court of Criminal Appeal for Mr Hart’s acquittals to be quashed.

Double jeopardy and the rule of law

The Court of Criminal Appeal will have the final say on whether the brief of evidence tendered as part of the retrial application meets the statutory test laid out in the Crimes (Appeal and Review) Act 2001. An unsuccessful outcome for the Bowraville families may see further pushes for law reform.

Previous attempts to modify double jeopardy legislation in NSW after 2006 have met with no success. Just last year, the Honourable James Wood AO QC, former NSW Supreme Court justice and current chairman of the NSW Law Reform Commission, was asked to prepare a report on whether section 102 of the Act, which defines “fresh” and “compelling” evidence, should be amended. Mr Wood concluded that it should not be, because of concerns that the amendments would significantly undermine protections against double jeopardy.

After Mr Wood handed down his report, David Shoebridge, the Greens member of the NSW Legislative Council, introduced the Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2015, which would have amended the Crimes (Appeal and Review) Act 2001 to allow previously inadmissible, but now admissible, evidence to count as “fresh” evidence. This Bill failed to pass Parliament.

Although protections against double jeopardy are important to the rule of law, and the oppressive effect of repeated trials all too chilling, perhaps the final word on modifying double jeopardy legislation belongs to Lord Justice Robin Auld, who conducted a review of UK criminal courts in 2001:

If there is compelling evidence… that an acquitted person is after all guilty of a serious offence, then, subject to stringent safeguards…, what basis in logic or justice can there be for preventing proof of that criminality? And what of the public confidence in a system that allows it to happen?

 

— William Shrubb

Further reading

Double Jeopardy‘, a 2003 NSW Parliamentary Library Research Service briefing paper

Review of section 102 of the Crimes (Appeal and Review) Act‘, 2015 report by Mr Wood

Bowraville Murders‘, in-depth investigation and summary by The Australian newspaper

Three Level Guide

Which of the following statements are correct according to the text above. If a statement below is incorrect, provide a reason why it is incorrect.

Level 1

  • Mr Hart was accused and acquitted of two murders.
  • The NSW Police have not been supportive of a retrial.
  • The Attorney General will make a decision about whether a retrial can occur under the double jeopardy laws.

Level 2

  • A person cannot be tried more than once for the same crime in New South Wales.
  • There are protections against double jeopardy in many countries.

Level 3

  • The interests of justice are not served by allowing double jeopardy.