Dou­ble jeop­ardy set­back

First mur­der re­trial un­der new laws thwarted by ‘un­re­li­able’ DNA ev­i­dence

The Courier-Mail - - FRONT PAGE - ALEXAN­DRIA UTTING

QUEENS­LAND’S first dou­ble jeop­ardy pros­e­cu­tion will not make it to trial af­ter a court found fresh DNA ev­i­dence in the stab­bing mur­der case was un­re­li­able.

The Queens­land Court of Ap­peal’s unan­i­mous de­ci­sion to dis­miss an ap­pli­ca­tion to retry a man for the late-1980s stab­bing mur­der of a woman is a ma­jor blow for in­ves­ti­ga­tors and state pros­e­cu­tors.

QUEENS­LAND’S first dou­ble jeop­ardy pros­e­cu­tion will not make it to trial af­ter a court found that fresh DNA ev­i­dence in the stab­bing mur­der case was un­re­li­able.

The Queens­land Court of Ap­peal’s unan­i­mous de­ci­sion to dis­miss an ap­pli­ca­tion to retry a man for the late-1980s stab­bing mur­der of a woman is a ma­jor blow for in­ves­ti­ga­tors and state pros­e­cu­tors.

Detectives pre­vi­ously said that there were at least three mur­der in­ves­ti­ga­tions they were ex­am­in­ing af­ter the ret­ro­spec­tive dou­ble jeop­ardy law changes.

It is now un­cer­tain whether the Di­rec­tor of Public Prose­cu­tions (DPP) will seek spe­cial leave to ap­peal the de­ci­sion to the High Court of Aus­tralia af­ter At­tor­ney-Gen­eral Yvette D’Ath yes­ter­day told The Courier-Mail that she would “con­sider the de­ci­sion be­fore de­cid­ing whether to re­fer it to the DPP for fur­ther ad­vice on a pos­si­ble ap­peal”.

The man, who can­not be named for le­gal rea­sons, was pre­vi­ously found not guilty of killing the woman who was found wrapped in bed­ding.

The ap­pli­ca­tion to retry him was the first of its kind in Queens­land un­der new laws.

He was ar­rested again over the 1980s mur­der last year and later re­leased on bail.

The judg­ment handed down yes­ter­day said the body of the woman was found with mul­ti­ple stab wounds in the bed­room of her flat. There was ev­i­dence of “sex­ual in­ter­course” and blood-stained, torn un­der­wear found on the floor, the judg­ment said.

The woman was found eight days af­ter she and the man were seen drinking.

The court heard the man told po­lice at the time he had pre­vi­ously tried to start a sex­ual re­la­tion­ship with the de­ceased. He said that af­ter the func­tion he had gone to her flat where they watched TV.

The man told po­lice he left and could not re­mem­ber if he had gone into her bed­room on the night she was killed, but ad­mit­ted he had been in there once or twice be­fore. Sam­ples of his blood and hair were given to po­lice in the 1980s.

Un­der the laws, the ap­pli­ca­tion can be made if there is “fresh and com­pelling ev­i­dence” against a per­son re­lat­ing to an of­fence they have al­ready been ac­quit­ted for.

Dur­ing the ap­pli­ca­tion to have him re­tried, the court heard DNA was cru­cial, with pros­e­cu­tors al­leg­ing new ev­i­dence showed his blood was found in­side the home of the de­ceased on a pil­low slip.

Di­rec­tor of Public Prose­cu­tions Michael Byrne told the court that when the man orig­i­nally went to trial the court was told a pil­low case had two ar­eas con­sis­tent with the man’s blood. The man de­nied he had bled that night.

Af­ter the trial in which a jury found the man not guilty, sam­ples from the pil­low case were sent for DNA test­ing, which re­turned a match.

But the Court of Ap­peal yes­ter­day found the new ev­i­dence was un­re­li­able be­cause there was no wit­ness avail­able to give ev­i­dence about how the sam­ple was tested. They also noted the way the DNA came to be on the slip was un­known.

Queens­land Law So­ci­ety pres­i­dent Bill Potts said that dou­ble jeop­ardy laws re­quired a high level of proof to per­mit a sec­ond pros­e­cu­tion.

Mr Potts said the test case had set a clear prece­dent for fur­ther prose­cu­tions and it was un­likely to be ap­pealed.

Crim­i­nal lawyer and co­founder of the Griffith Univer­sity’s In­no­cence Project, Chris Nyst, said the rule against dou­ble jeop­ardy was a “very im­por­tant civil lib­erty” in­tended to pre­vent “in­no­cent peo­ple be­ing re­lent­lessly and un­justly pur­sued by the state”.

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