The law of double jeopardy in Queensland confirmed – Director of Public Prosecutions v TAL  QCA 279
An application pursuant to s678B of the Criminal Code 1899
Last month in a unanimous decision, the Queensland Court of Appeal dismissed an application brought by the Director of Public Prosecutions for an order pursuant to section 678B of the Criminal Code that a person be retried for a murder for which they were previously acquitted. This was the first occasion that a court in Queensland has heard such an application.
The respondent was charged with the deceased’s murder. The only issue at the respondent’s 1988 trial was the identity of the killer. The jury acquitted the respondent. The application arose as a result of further DNA testing (as a result of advance in the field) conducted on a blood stained pillow case found at the scene of the murder, This ultimately lead to a test in March 2015 which returned results that the probability that the DNA sample contained in the pillow case was contributed to by someone other than the respondent was one in 100 billion.
The term “double jeopardy” refers to the principle that a person cannot be charged with an offence for which he has already been convicted or acquitted. Contradicting an earlier verdict by preferring a different charge, such as perjury, is also encompassed by the double jeopardy principle; see the High Court decision in The Queen v Raymond John Carroll  HCA 55 (5 December 2002). T
The double jeopardy rule has long regarded as a fundamental principle of the criminal law. The principles underpinning the double jeopardy rules include that a person should not be harassed by multiple prosecutions about the same issue, the need for finality in proceedings, the sanctity of a jury verdict, the prevention of wrongful conviction and the need to encourage efficient investigations.
In 2007 the law in Queensland was amended by the Criminal Code (Double Jeopardy) Amendment Act.
The objective of the legislation was to:
- to enable a person acquitted of murder or a lesser offence to be retried for murder if there is fresh and compelling evidence of guilt, and
- to enable a person acquitted of an offence to be retried for an offence for which the maximum penalty is 25 years or more if the acquittal was tainted by the commission of an administration of justice offence.
A retrial can only proceed after a hearing before the Court of Appeal has established that the above-mentioned grounds are made out, and that it will be in the interests of justice to order a retrial.
Originally the 2007 amendments only applied to those who were acquitted of murder after the new laws was passed. However, in 2014 further amendments allowed for a second trial where an accused was acquitted prior to the amendments.
The Court of Appeal’s Decision
It is clear when reading the Court’s decision that the sanctity of a jury’s verdict is protected by the Court’s application of a stringent test as to whether the respondent should be retried for the murder.
Ultimately, to permit a retrial for murder because more (fresh) evidence has emerged when it could have reasonably been obtained for the purpose of the first trial would offend the principle of finality, which requires each party to put forward their best case once and for all. Further, Court requires that the new evidence could have led to a different result. The satisfaction of each of these criteria ultimately demonstrates that a miscarriage of justice has occurred.
In this case the fresh evidence (being the retested DNA sample from the pillow case) was required to meet three criteria in order to be considered “compelling”:-
- that it was reliable;
- that it was substantial; and
- in the context of the issue in dispute in the proceedings in which the person was acquitted, it was highly probative in the case against the acquitted person.
The Court considered each of these criteria. However the Director of Public Prosecutions failed to satisfy the third as the evidence was not of high probative value.
Evidence is relevant if it makes a fact in issue both more or less probable and simply put, “probative value” is an expression which refers to the weight of evidence. If evidence in a proceeding is of high probative value, it goes to the heart of the existence or non-existence of a fact.
In the 1988 trial, the issue in dispute in the proceeding was the identity of the murderer.
The ultimate submission by the Director of Public Prosecution was that the pillowcase was intimately associated with the act of killing because of the position in which it was found next to the deceased’s body. The result, was that the respondent must have been present when the deceased was killed and it followed that he was the killer.
The issue with this was that it does not include a hypothesis, beyond a reasonable doubt that the DNA was deposited onto the pillow in innocent circumstances. Further, there was no evidence of injury that could have resulted in the deposits of blood on the pillow case by the respondent to support the Prosecution’s theory.
The fact that the respondent was present in the deceased home was admitted in the 1988 trial. The fresh DNA evidence relied upon by the Director was not compelling as it all it did was reinforce and admitted fact that the respondent was present in the residence, not that the respondent did an act which constituted the offence of murder.
It is extremely important if you are contact or charged by police in relation to murder, manslaughter or any offence where a loss of life of human life is concerned that you contact an expert criminal lawyer immediately. Our lawyers are experienced in these matters and seeking such advice from the absolute earliest opportunity ensures that your position is protected from the very beginning. Where matters such as this arise our lawyers can be contacted through our offices in either Brisbane (07) 3221 4999 or Southport (07) 5532 3133 or on our 24 hour emergency CRIMELINE on 0488 999 980. Our lawyers also travel throughout Queensland.
- A summary of the Court of Appeal’s decision can be found here:
- The Court judgment in full can be found here: https://archive.sclqld.org.au/qjudgment/2019/QCA19-279.pdf