This week we provide an update on a Law and Justice Committee inquiry that investigated a bill introduced by Mr David Shoebridge MLC to address the legislative barriers encountered by the Bowraville cases, which involved the murders of three Indigenous children in the early 1990s.
Background to the inquiry
On Friday the Law and Justice Committee handed down its report on the private members bill introduced by Mr David Shoebridge MLC that seeks to amend the state’s double jeopardy law. Soon afterwards the committee met with the families of the three children murdered in Bowraville, for whom the bill was crafted, to discuss the recommendations in the report. The families are seeking justice in relation to the murders of Colleen Walker-Craig, aged 16, Evelyn Greenup aged 4, and Clinton Speedy-Duroux, aged 16, who were killed within a five month period in 1990-1991 in the small town of Bowraville in Northern New South Wales. To date, no one has been convicted of these murders.
In 2014, the committee conducted an inquiry into the family responses to the murders in Bowraville which documented the unique injustice in respect of the cases. At the root of this injustice were inadequacies in relation to the initial police investigation, borne from systemic discrimination. A person referred to as XX was tried and acquitted of the murders of Clinton in 1994 and Evelyn in 2006. Since that time the families have sought to have XX retried for all three cases at once, culminating in the decision of the NSW Court of Criminal Appeal in 2018 to dismiss an application by the Attorney General for a retrial. That decision was upheld by the High Court in March 2019.
The Bill introduced by Mr Shoebridge shortly after this High Court decision, sought to address the legislative barriers encountered by the case, by extending the exceptions to the double jeopardy principle in the Crimes (Appeal and Review) Act 2001 that allow a person to be retried for a very serious offence. Following the second reading debate, the Legislative Council referred the Bill to the Law and Justice Committee for inquiry and report.
Outcome of the inquiry
While the previous inquiry focused on the nature and impact of the injustice on the families, the focus of the inquiry this time was the technical, legal implications of the Bill’s proposed amendments to the current law. The committee’s task was to consider the impact of the proposed changes not just on the Bowraville cases, but on other parts of the criminal justice system. In doing so, it took evidence from a range of legal stakeholders including the Director of Public Prosecutions, the Public Defenders, Legal Aid NSW, the NSW Bar Association, Professor David Hamer of the Sydney Law School at the University of Sydney, and legal representatives of the Jumbunna Institute for Indigenous Education and Research at the University of Technology Sydney, which has worked closely with the Bowraville families over a number of years.
Having explored the complex legal issues in detail, and noting that almost all stakeholders identified significant problems with the Bill’s wording, the committee concluded that the Bill as drafted should not proceed. However, it recommended that the NSW Government consider an alternative model proposed by the Jumbunna Institute for Indigenous Education and Research, which shared the same stated goals as the Bill, but had an alternative form of wording.
The report also documented the evidence that the committee received from a range of legal stakeholders on the key issues to be carefully considered, should the NSW Government or anyone else wish to prepare another bill. The report stands as a resource to assist that process. A Government response is due on 2 March 2020.
You can find out more about the inquiry here.