Today the families of the Bowraville three were dealt another blow. But a glimmer of hope remains for those still fighting for justice after nearly 30 years.
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After two months of an upper house inquiry, the "Double Jeopardy' report of the Standing Committee on Law and Justice was tabled with the clerk of the Parliaments.
The bill behind the report, which was introduced by Greens MP David Shoebridge in NSW Parliament in May while family members watched from the public gallery, seeks to expand the definition of 'fresh' evidence, which would allow a second retrial application to be made in exceptional circumstances.
"This is the third time I've presented to this place a law to reform the laws of double jeopardy," Mr Shoebridge told parliament in May.
"This is the third time that those families have come here and asked the members in this place to clear their path to justice - and I think we should be clear, that this is the last time.
"The chance for justice is now and it will not come back."
Arguments for and against the bill were heard last month as part of a NSW Upper House Inquiry, with many prominent legal groups fearing the passing of this bill could mean the breakdown of the separation of powers, a possible two-tiered system whereby appeals are ignored but acquittals are allowed to be retried, and could signify a lack of 'finality' to the course of law, with acquitted persons constantly in fear of being brought back before a court for the same accusations.
The NSW Bar Association, The Law Society, Legal Aid NSW and the Public Defenders all made submissions to the inquiry opposing the bill.
Over the past two months, the Committee has considered public and legal body submissions and examined the "technical and legal implications of the Bill's proposed amendments to the current law".
In the foreword to the report Committee Chair Niall Blair said this:
The committee acknowledges the Bowraville families' profound grief, their overwhelming need for justice and the many setbacks they have encountered on their long journey to this point. We also acknowledge their fighting spirit and hope in the justice system despite its failings for them. The committee was determined to try to find a clear path forward that might provide justice for the families. However, on the basis of the evidence gathered during this inquiry from a range of legal stakeholders, we have come to recognise that this is a highly complex area of criminal law. In examining the Bill, the committee had to consider the impact of the proposed changes not just on this one case, but on other parts of the criminal justice system. Having explored these complex legal issues in detail, and noting that almost all stakeholders identified significant problems with the Bill's wording, the committee considers that the Bill as drafted should not proceed.
He went on to say, however, that the committee found merit in the alternative model proposed by the Jumbunna Institute for Indigenous Education and Research, and recommended the Government consider that model of reform.
The Jumbunna method proposed the word 'adduced' be replaced by 'admitted' "so that section 102(2) would now read: (2) Evidence is 'fresh' if: (a) it was not admitted in the proceedings in which the person was acquitted, and (b) it could not have been admitted in those proceedings with the exercise of reasonable diligence."
In layman's terms, this would mean a retrial should be considered if there was evidence never brought before a jury.
The report and its recommendations are now with the Government for consideration which is required to respond within six months - any time before March next year.
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Mel Leigh Dee
Mel is a journalist at the Guardian News and is based in Macksville.
Mel is a journalist at the Guardian News and is based in Macksville.
