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Key decisions

  • Review of the operation of section 102 of the Crimes (Appeal and Review) Act 2001
  • Statutory review of the Terrorism (Police Powers) Act 2002
  • Consultation Draft Children (Detention Centres) Regulation 2015
  • Best Practice Guide to Tribunal Independence and Appointments – Discussion Paper
  • NSW Labor Child Protection Reforms
  • Inquiry into Home Ownership
  • Proposed Conveyancers Licensing Regulation 2015
  • Medical Inquests – Draft practice note
  • Non-profit Bodies (Freedom to Advocate) Bill 2015
  • Australian Citizenship (Allegiance to Australia) Bill 2015

Review of the operation of section 102 of the Crimes (Appeal and Review) Act 2001

The Criminal Law Committee made a submission to the review of the operation of section 102 of the Crimes (Appeal and Review) Act 2001, which provides an exception to the common law rule against double jeopardy.

The review is being conducted by the Honourable James Wood AO QC, and is a result of the Parliamentary Inquiry into the Bowraville murders. The submission acknowledged the pain and suffering of the families of the victims.
The submission provided a brief background of the rule against double jeopardy and the legislative changes to the common law in the NSW context; and addressed the specific issues raised for comment.

The Criminal Law Committee does not support further amendments to section 102, as amending the legislation would severely undermine procedural fairness and the concept of finality in criminal proceedings. While the Committee remains of the view that the common law rule against double jeopardy should have been retained rather than reformed, it considers that section 102 allows for the possibility of a retrial where there is compelling, fresh material such as new DNA evidence.

The Committee submitted that the proposed amendments would result in the emphasis being shifted from the discovery of genuine ‘fresh’ evidence to a debate over the admissibility of evidence. This would result in pressure on the legislature to retrospectively change the law of evidence whenever there was an unpopular verdict in a high profile trial so that evidence held to be inadmissible at the trial would be admissible at a retrial. These type of changes could lead to unpredictable and undesirable outcomes.

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