Across Australia many people are quite rightly celebrating the fact that the families of Clinton Speedy-Duroux, Evelyn Greenup and Colleen Walker, three Aboriginal children who were murdered in Bowraville a quarter of a century ago, have got a real chance at seeing their children’s alleged killer brought to justice.
This week the Attorney General has finally agreed to allow a retrial application to be made to the Court of Criminal Appeal. But what does this actually mean, and what is the legal process that will follow?
Under our justice system if a person is charged with a criminal offence, taken to court and then found not guilty that is almost always the end of the matter. The police are not allowed to endlessly prosecute people for the same offence until they get a conviction. This is called the principle against “double jeopardy” and it prevents people being tried more than once for the same offence.
However, there is an exception to the principle of double jeopardy. It only applies in the most serious criminal cases of murder and aggravated sexual assault. In these cases where there is fresh and compelling evidence that was not available at the time of an earlier trial then there can be a fresh trial ordered, despite an earlier not guilty verdict.
This is important in the case of the Bowraville murders where police have identified a single suspect for all three murders. The murders all occurred in a matter of months all within the small community of Bowraville. Despite the fact there were a series of striking similarities between the murders that linked all three to the same suspect, there has never been a trial where all three murders were considered together.
The suspect was eventually charged with the murders of Evelyn and Clinton but the Court refused to allow the two cases to be heard together. As a result each of the cases was tried separately and two not guilty verdicts followed. No prosecution has ever been run for the murder of Colleen.
For the families and the police, separating the trials means that some of the most compelling evidence in each murder was not presented. Think for a moment of the backpacker murder trials and the successful prosecution of the murderer Ivan Milat. In that case 7 separate murders were tried together. It was the cumulative evidence of Milat being the last person seen with the victims, his repeated travelling to the site of the murders and other common factors that ultimately persuaded the jury that Milat was guilty.
The Bowraville families want the same chance to obtain justice for the murder of their children. For over 20 years they have been demanding that all three cases be tried together. However for this to happen they need to use the exception to the double jeopardy laws.
This means the police and the families need to apply for a retrial to the highest criminal court in the state, called the Court of Criminal Appeal. For that application to be even filed with the court it requires the Attorney General to consent. This is the consent that the Attorney General gave earlier this week. This was the crucial first step in seeking a retrial.
The next steps are laid out in the law. The police must formally charge the suspect with the murders. I understand steps are being taken for this to happen in the near future. Once the suspect is charged police have 28 days in which to file the application for a retrial with the Court of Criminal Appeal. Once the application is filed all the evidence linking the three murders, and all the fresh evidence that has been uncovered by police in their ongoing investigation will also be filed and served on the suspect.
The Court of Criminal Appeal will then have to decide a couple of things. First, is the evidence fresh? Evidence is fresh if it could not have been put into evidence in the earlier trials where the suspect was acquitted. They then have to decide if the evidence is compelling. That means, is the evidence strong enough to make out a solid case for murder.
The Court finally has to decide if it is in the interests of justice for retrials to be ordered. In deciding this the Court needs to consider if a fair retrial can occur, especially given there has been such a long delay between the time of the murders and any retrial. Often courts are very concerned that either witnesses have died or their memory deteriorates with the passage of time.
If the Court of Criminal Appeal is satisfied that the evidence is both fresh and compelling, and it is in the interests of justice for retrials to occur, then it will order retrials. If not the application will be dismissed and no retrial will happen.
What is the likely timing for all this? The application in the Court of Appeal will likely happen in the coming weeks, or at most months. Hopefully that application will be decided by the end of the year.
If a retrial is ordered then we could expect the trial to be held in 2017. If that happens, and it is by no means a certainty, we might finally see justice done.
David Shoebridge MLC is a member of the NSW Legislative Council.