From the criminal lawyers case files: ‘Double Jeopardy’ law applied in Queensland for the first time. Part 2
In our previous article, we discussed a very unusual provision which exists in Queensland law. It is so unusual that it has only ever been utilised on once occasion. The provision that we are referring to is the exception to the ‘double jeopardy’ rule.
To quickly recap, if a person is charged and then acquitted at trial for an offence (other than the offence of murder) then they can never be charged with that crime again. This is even if new evidence comes to light. However, in the case of the offence of murder, it is possible, in some circumstances, for the person to be charged again. This may happen if it can be demonstrated that:
- There is fresh and compelling evidence; and
- It is in the interests of justice
It is considered to be ‘fresh’ evidence if it was not led against the person in the first trial and could not have been led with reasonable diligence. This typically involves situations where there has been an advancement in scientific methods. For example, the way in which DNA can be tested. It is considered to be ‘compelling’ evidence if it’s reliable, substantial and carries a lot of weight against the defendant.
When considering if it is ‘in the interests of justice’, the court needs to consider some elements. This includes if it would be fair to the defendant for them to be retried. They will also have regard to the time since they were first acquitted of the offence. Another consideration may be whether any police officer or prosecutor failed to act diligently in the investigation or prosecution of the defendant.
The facts continued
Continuing on from the facts in my last article; Dr Henry Roberts is a retired forensic scientist. He participated in the establishment of a DNA profiling laboratory in Victoria in 1989. Dr Roberts was working in that laboratory in 1990 when he received certain blood samples and two samples of fabric (labelled “3A3 Blood Pillowcase” and “3A4 Blood Pillowcase”) from authorities in Queensland.
DNA testing was undertaken at his laboratory to compare the DNA in TAL’s blood with the DNA extracted from the two pieces of fabric. The DNA profile of TAL’s blood matched the DNA profile extracted from sample “3A4 Blood Pillowcase” and it also matched a “partial profile” from sample “3A3 Blood Pillowcase”.
The partial profile match was “expected in approximately one person in six hundred”. The population to which this refers is described as the “American Caucasian population” but, according to Dr Roberts, no relevant differences were to be expected between that population and the Australian population.
The DNA in the sample marked 3A4 was tested again in 1999 in Queensland. The test showed a partial match with the DNA of TAL. On this occasion, because of advances in the field, 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.
In July 2000, both fabric samples were retested in Queensland and resulted in a match such that the probability that the DNA on the fabric had been contributed by somebody other than TAL was one in 82 billion, based upon Queensland Caucasian data. Yet, another test in March 2015 of the same materials increased the improbability of another contributor to more than one in 100 billion.
Therefore, in 1989 at the time of the first trial, it was discovered that there was a one in 600 chance that the DNA was from someone other than TAL. This might sound like a high probability that it was TAL’s DNA but in criminal trials, when you’re dealing with the concept of ‘beyond reasonable doubt’, that would not be sufficient. However, by 2015, with advancements in technology, it was shown that there was a one in 100 billion chance that the DNA was not from TAL. This means that it is virtually certain that it was TAL’s DNA.
Based on this, on 13 August 2018, the Director of Public Prosecutions (DPP) applied to the court to re-try TAL for murder. This was because the DPP can’t just immediately have TAL charged and then brought back to trial. They need to first obtain permission from the court.
Ultimately, the court dismissed the DPP’s application for a new trial. It did so for the following reasons:
- Another expert gave evidence that even though TAL’s DNA was on the relevant items, this did not necessarily mean that it was TAL’s blood. It could’ve equally come from TAL’s skin and there was no way of distinguishing this at the time. Furthermore, it does not show when the DNA was deposited. It could’ve been at the time the victim was killed or it could have been at a time much earlier. The fact that there was no evidence that TAL had any injuries on him was also problematic for the DPP.
- Because of this, the new DNA evidence did nothing other than to reinforce the fact that TAL had been inside the victim’s home or bedroom (something that TAL had already admitted to the police).
- The method of handling items that were submitted for DNA testing at the time of the first trial was very casual. There did not exist then the sorts of strict measures in terms of handling and storage that are in place in modern facilities. As a result of this, it would not be possible for TAL’s lawyers to test the integrity of the testing process. Furthermore, the items that were submitted for DNA testing had long been destroyed, meaning that TAL’s lawyers would not be able to have it independently tested. All of this meant that it would be unfair for TAL.
Advancements in methods don’t just exist in the scientific sphere; they also exist in the technological sphere. For example, some special mobile phones known as ‘Blackberries’ are encrypted and not able to be ‘cracked’ by the police. If the police ever managed to, however, we would anticipate that there would be many people being charged with many offences. These are clear examples of how changing technology can keep up with criminals.
If you’re needing assistance with legal matters or determining your legal rights, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.