Attorney General for New South Wales v Xx

[2018] NSWCCA 198

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Attorney General for New South Wales v XX [2018] NSWCCA 198
Hearing dates:	29 & 30 November 2017; 1, 4, 5 & 6 December 2017
Date of orders:	13 September 2018
Decision date:	13 September 2018
Before:	Bathurst CJ; Hoeben CJ at CL; McCallum J
Decision:	Application dismissed.
Catchwords:	CRIMINAL PROCEDURE – application for retrial after acquittal under Crimes (Appeal and Review) Act 2001 (NSW) s 100(1) – three children disappeared over five month period – respondent acquitted of murders of two of the children at separate trials – evidence relating to disappearance of third child available but not admitted at either trial – whether evidence relating to disappearance of third child was “fresh and compelling” evidence in relation to the murders of the first two children CRIMINAL PROCEDURE – application for retrial after acquittal under Crimes (Appeal and Review) Act 2001 (NSW) s 100(1) – applicant ran case on basis that it was necessary to obtain an order for a retrial of the respondent for murders of both of the first two children – applicant submitted at conclusion of hearing that an order for a retrial of respondent for only one of the murders was sought in the alternative – whether applicant permitted to change the case run on the application
Legislation Cited:	Coroners Act 1980 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Act 2004 (WA) Criminal Justice Act 2003 (UK) Criminal Law Consolidation Act 1935 (SA) Evidence Act 1995 (NSW) Evidence Amendment Act 2007 (NSW) Evidence Regulation 2015 (NSW) Interpretation Act 1987 (NSW) Trade Practices Act 1974 (Cth)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 Attorney General’s Reference (No 3 of 1999) [2001] 2 AC 91 Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7 Chippendale Printing Co Pty Ltd v Commissioner of Taxation (1996) 62 FCR 347; [1996] FCA 1259 Coco v The Queen (1993) 179 CLR 427; [1994] HCA 15 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67 Green v United States, 355 US 184 (1957) Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50 Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50 Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 McElwaine v The Owners – Strata Plan 75975 [2017] NSWCA 239 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 Papakosmos v The Queen (1999) 196 CLR 297; [1999] HCA 37 Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v A [2009] 1 WLR 1947; [2008] EWCA Crim 2908 R v B [2013] 1 WLR 320; [2012] EWCA Crim 414 R v C [2009] EWCA Crim 633 R v Carroll (2002) 213 CLR 635; [2002] HCA 55 R v Dobson [2011] EWCA Crim 1255 R v Dobson [2011] EWCA Crim 1256 R v Dunlop [2007] 1 WLR 1657; [2006] EWCA Crim 1354 R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319 R v H [2014] EWCA Crim 1816 R v K [2013] EWCA Crim 1820 R v MH [2015] EWCA Crim 585 R v SH [2014] NSWCCA 218 R v Storey (1978) 140 CLR 364; [1978] HCA 39 R v Weston [2010] EWCA Crim 1576 R v Wood (2012) 84 NSWLR 581; [2012] NSWCCA 21 R v XX (Unreported, Supreme Court of New South Wales, Hulme J, 22 February 2006) R v Zhang (2005) 196 FLR 152; [2005] NSWCCA 437 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1; [1943] HCA 2 SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34 Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 Van Beelen v The Queen (2017) 91 ALJR 1244; [2017] HCA 48 Washer v Western Australia (2007) 234 CLR 492; [2007] HCA 48 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
Category:	Principal judgment
Parties:	Attorney General for New South Wales (applicant) XX (respondent)
Representation:	Counsel: W Abraham QC with J Single and J D Williams (applicant) M Ierace SC with J Roy (respondent) P Singleton (Commissioner of Police and Commissioner of Corrective Services)   Solicitors: Crown Solicitor’s Office (applicant) Legal Aid NSW (respondent)
File Number(s):	2016/377234
Publication restriction:	Restriction on publication under s 111 of the Crimes (Appeal and Review) Act 2001 (NSW) of any matter for the purpose of identifying or having the effect of identifying the respondent. Orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) made by the Court of Criminal Appeal on 1 December 2017 in accordance with Short Minutes of Order.

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 16 December 2016, the Attorney General for New South Wales made an application to the Court of Criminal Appeal under s 100(1) of the Crimes (Appeal and Review) Act 2001 (NSW) for an order for a retrial of the respondent for the murders of Clinton Speedy and Evelyn Greenup. The purpose of the application was said to be to enable the respondent to be retried for those offences and for the murder of Colleen Walker at a single trial on the same indictment.

The application brought by the Attorney General arose out of the disappearances of Clinton Speedy, Evelyn Greenup and Colleen Walker from the town of Bowraville on the north coast of New South Wales over a five month period from September 1990 to February 1991. The remains of Clinton Speedy were discovered on 18 February 1991 and the respondent was charged with his murder on 8 April 1991. The remains of Evelyn Greenup were discovered shortly after on 27 April 1991 and the respondent was charged with her murder on 16 October 1991. Items of clothing worn by Colleen Walker were recovered from a river, but no remains had ever been found and no charges had ever been laid for her murder.

Before the trial of the respondent for the murders of Clinton Speedy and Evelyn Greenup had commenced, a judge of the Supreme Court of New South Wales made an order that there be separate trials. The trial of the respondent for the murder of Clinton Speedy commenced first and the respondent was acquitted of that offence by a jury on 18 February 1994. After the acquittal, the prosecution of the respondent for the murder of Evelyn Greenup was discontinued.

After a reinvestigation by police, a coronial inquest into the death of Evelyn Greenup and the disappearance of Colleen Walker was held in 2004. At the conclusion of the inquest, while the Coroner found that Colleen Walker had been murdered, he did not find that there was sufficient evidence to satisfy a jury that a known person was responsible for her murder. However, the Coroner found that there was evidence capable of satisfying a jury that Evelyn Greenup was murdered by a known person. Following the conclusion of the inquest, the respondent was tried for the murder of Evelyn Greenup and was acquitted of that offence by a jury on 3 March 2006.

In the application brought by the Attorney General for an order under s 100(1), it was claimed that, if the evidence relating to each of the disappearances and deaths of Clinton Speedy, Evelyn Greenup and Colleen Walker was considered by a jury at a single trial, then that evidence would establish that “each of the children were murdered; they were murdered by the same person; and that person was [the respondent]” through “coincidence reasoning” based on the alleged similarities in the circumstances between each of the murders.

The Attorney General identified several categories of evidence which were said to be “fresh” such as to enable the Court of Criminal Appeal to make an order under s 100(1). The most important category of evidence said to be “fresh” was the evidence relating to the murder of Colleen Walker, most of which had not been put before the jury at either of the earlier trials. The Attorney General said that this category of evidence was “compelling” because it established similarities in the circumstances between each of the murders in a way which would not have been possible if the only evidence considered by the jury was that relating to the other two murders.

The main issues arising out of the application were:

1 Whether s 105(7) of the Crimes (Appeal and Review) Act 2001 (NSW) required the Court to consider whether the evidence relating to the murder of Colleen Walker was “fresh and compelling” in relation to the murders of Clinton Speedy and Evelyn Greenup together or separately;

2 Whether the evidence relating to the murder of Colleen Walker (the Walker evidence) was “fresh” in relation to the murder of Evelyn Greenup for the purposes of s 102(2) of the Crimes (Appeal and Review) Act 2001 (NSW);

3   Whether there was any other evidence which was “fresh and compelling” in relation to the murder of Evelyn Greenup; and

4   Whether it was open to the Court to consider whether an order for the retrial of the respondent for the murder of Clinton Speedy could be made even if no order was made in relation to the murder of Evelyn Greenup.

Section 105(7) of the Crimes (Appeal and Review) Act 2001 (NSW)

(i) Where orders for the retrial of multiple offences are sought in an application and the Court finds that those offences “should be heard on one indictment” at any retrial, s 105(7) does not permit the Court to make orders for the retrial of all of those offences if there is evidence which is “fresh” in relation to only some of those offences. The Court must consider whether there is evidence which is “fresh” in relation to each of the offences separately, even if the offences “should be tried on one indictment” at any retrial: [168]-[172].

(ii) Where orders for the retrial of multiple offences are sought in an application, the Court finds that those offences “should be tried on one indictment”, and evidence has been found to be “fresh” in relation to those offences, s 105(7) permits the Court to consider whether that evidence is “compelling” in the context of a future joint trial of those offences. For an order for a retrial to be made in relation to an offence, the evidence which has been found to be “fresh” in relation to that offence must be the same evidence which has been found to be “compelling” in relation to that offence: [173]-[176].

Whether the Walker evidence was “fresh” in relation to the murder of Evelyn Greenup

(iii) Evidence satisfies s 102(2)(a) in relation to an offence only if it was not “tendered” or “brought forward” in the “proceedings in which the person was acquitted” of that offence irrespective of whether the evidence was admissible in those proceedings or not: [225].

R v Zhang (2005) 196 FLR 152; [2005] NSWCCA 437, considered.

(iv) Evidence satisfies s 102(2)(b) in relation to an offence only if it could not have been “tendered” or “brought forward” in “proceedings in which the person was acquitted” of that offence with “the exercise of reasonable diligence” irrespective of whether the evidence was admissible in those proceedings or not: [225], [249].

R v Zhang (2005) 196 FLR 152; [2005] NSWCCA 437, considered.

(v) The Walker evidence was available to be “tendered” or “brought forward” prior to the trial of the respondent for the murder of Evelyn Greenup. In these circumstances, the evidence was not “fresh” within the meaning of s 102(2): [256].

Whether there was any other evidence which was “fresh and compelling” in relation to the murder of Evelyn Greenup

(vi) Most of the other categories of evidence relied on were also available to be “tendered” or “brought forward” prior to the trial of the respondent for the murder of Evelyn Greenup. In these circumstances, the evidence was not “fresh” within the meaning of s 102(2): [258].

(vii) The only evidence which was not available to be “tendered” or “brought forward” prior to the trial of the respondent for the murder of Evelyn Greenup were the statements made by the respondent in a recorded interview with a journalist in 2016. In these circumstances, this evidence was “fresh” within the meaning of s 102(2): [258].

(viii) Relying on the statements made by the respondent in the recorded interview as amounting to “implied admissions of guilt” would require proving the guilt of the respondent independently of these statements. In these circumstances, the evidence is not “highly probative” within the meaning of s 102(3)(c), and was therefore not “compelling” within the meaning of s 102(3): [260].

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, applied.

Whether an order could be made in relation to the murder of Clinton Speedy even if no order was made in relation to the murder of Evelyn Greenup

(ix) The Attorney General did not seek to make a case for an order that the respondent be retried for the murder of Clinton Speedy without also being retried at the same time for the murder of Evelyn Greenup. The question of whether such an order should be made has not properly been raised for the determination by the Court: [267]-[280], [287].

(x) The Attorney General did not seek leave to amend the application to seek an order that the respondent be retried for the murder of Clinton Speedy without also being retried for the murder of Evelyn Greenup at the same time, and had leave been sought, it would not have been granted: [281]-[286].

R v SH [2014] NSWCCA 218, referred to.

Judgment

1. THE COURT: This is an application brought by the Attorney General of New South Wales (the applicant) under s 100(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CARA) for orders that the respondent be retried for the murder of Clinton Speedy and the murder of Evelyn Greenup and for orders quashing the earlier acquittals of the respondent for those offences on 18 February 1994 and 3 March 2005 respectively. The application expresses its purpose to be to enable a retrial of the respondent for those offences jointly on an indictment for the murder of Colleen Walker. The power of the applicant to bring the application is contained in s 115(1) of CARA.

2. Ordinarily, a person who has been acquitted of an offence is protected by the principle of double jeopardy and cannot be tried again for that offence. However, this Court has power under s 100(1) of CARA to order that a person who has been acquitted of a “life sentence offence” such as murder be retried if the Court is satisfied that there is “fresh and compelling” evidence against that person in relation to that offence and that it is in the “interests of justice” for the order to be made.

3. This Court has come to the conclusion that it cannot be so satisfied and that the application must therefore be dismissed. We acknowledge that the deaths of Colleen Walker, Evelyn Greenup and Clinton Speedy were tragedies for their families and the Bowraville community and we recognise the distress that the deaths of these children and the subsequent investigations and proceedings have caused the families involved.

4. This application was not a retrial of the respondent for any of the charges of which he was acquitted; nor was it an appeal from such acquittals. This Court was not required to form, and has not formed, any view as to the guilt or innocence of the respondent in respect of any of the deaths.

Background

5. The summary of the factual background below is sufficient to identify the circumstances in which this application was made.

6. On Thursday, 13 September 1990, Colleen Walker disappeared sometime after attending a party at a house at 4 Cemetery Road in an area known as “the Mission” in Bowraville. The respondent was also present at the party. The evidence tendered in support of the application showed that, on most accounts, Colleen Walker was planning to catch a train at 3:00am on the morning of Friday, 14 September 1990 from Macksville in order to travel to Goodooga via Sydney. She did not catch the train.

7. Colleen Walker’s remains were never discovered. However, on 17 April 1991, a person fishing in the Nambucca River near Macksville hooked a pair of jeans and a belt which were subsequently identified as clothing which Colleen Walker had worn. The police were notified. On 20 April 1991, police divers found plastic bags in the river containing rocks and items of clothing, some of which were also subsequently identified as having been worn by Colleen Walker.

8. There were various accounts as to Colleen Walker’s disappearance and her connection with the respondent, including her plans to travel to Goodooga the night after the party, allegations that the respondent was hassling her at the party, allegations that a “couple of months” prior to the party she had complained that the respondent touched her while she was sleeping over at his caravan, and accounts that she had been at the respondent’s caravan either on the Friday after the party or on the Wednesday before it with Adrian Jarrett, who is now deceased.

9. Evelyn Greenup disappeared on 3 October 1990. At the time, she was four years old and was the eldest of Rebecca Stadhams’ three children. She was living with Rebecca Stadhams’ mother, Patricia Stadhams, at 6 Cemetery Road at ”the Mission” in Bowraville. Her father, Ivan “Billy” Greenup, lived at 3 Cemetery Road at “the Mission”.

10. On 3 October 1990, a party was held at Patricia Stadhams’ house. The respondent was present at the party, as were Rebecca Stadhams’ three children. It appears from evidence tendered at the hearing of this application that Rebecca Stadhams and her three children went to bed at around midnight. It seems that, sometime the following morning, Evelyn Greenup was found not to be in the bedroom. One of the shoes that she was wearing the night before was found by Rebecca Stadhams after she went missing. However, Evelyn Greenup was not located.

11. On 27 April 1991, Evelyn Greenup’s remains were located in bushland off a track less than 100 metres from Congarinni Road, about 4 kilometres from Bowraville. A pink shoe was located about 12 metres from the remains, which matched the pink shoe found by Rebecca Stadhams.

12. The key pieces of evidence which were said to link the respondent to Evelyn Greenup’s disappearance were accounts that he was near the door of Rebecca Stadhams’ room on the evening in question, that he was looking through the window of the room in which Rebecca Stadhams and her children were sleeping, that Evelyn was crying inside the room and that there was a large thud after which she was quiet, and evidence that Rebecca Stadhams’ jeans and perhaps underwear had been pulled down during the night.

13. Clinton Speedy was sixteen years old at the time he disappeared. At the time he was in a relationship with Kelly Jarrett. On 31 January 1991, he attended a party at Alma Jarrett’s units at what were known as the “pensioner units” on Herborn Drive in Bowraville. It was asserted by the applicant that, in the early hours of 1 February 1991, the respondent asked Clinton Speedy and Kelly Jarrett to go to his caravan for a drink. It was alleged that they eventually fell asleep in his caravan.

5. Kelly Jarrett stated that, when she awoke the following morning, neither Clinton Speedy nor the respondent were in the caravan. Kelly Jarrett stated that Clinton Speedy’s shoes and socks were still in the caravan. She also said that she found that her shorts and underpants had been removed. She said that she searched for her clothes and found them folded up on a table under a number of items of the respondent’s clothing. She said that she spent the day looking for Clinton Speedy but she could not find him.

6. On 18 February 1991, Clinton Speedy’s remains were found some 8 kilometres south of Bowraville. Upon examining the remains, a pathologist concluded that two injuries to the skull were consistent with Clinton having suffered trauma to the head, but was unable to determine the cause of death.

7. The key pieces of evidence which were said to link the respondent to Clinton Speedy’s disappearance include evidence that Kelly Jarrett’s underwear and pants were interfered with during the night, that the respondent left the caravan early in the morning and was away from 5:00am to about 6:00am, that Clinton Speedy’s remains were found with one of the respondent’s pillowcases in his pants, and that a blanket was found near Clinton Speedy’s remains which was identified by some people as being from the respondent’s caravan. It was also alleged the respondent had a sexual interest in Kelly Jarrett.

8. In an affidavit sworn on 16 December 2016, Detective Chief Inspector Gary Jubelin stated that the initial investigation into the children’s disappearance was conducted by local officers from the Bowraville and Macksville Police Stations. He stated that the investigation was a “missing persons investigation”, which differed from a homicide investigation since the focus of a “missing persons investigation” was to locate the person “safe and well at the earliest opportunity”. He identified what he described as “three key differences” between a missing persons investigation and a homicide investigation. First, “identification evidence is treated differently”, second, “crime scene management is a vital part of all homicide investigations”, and third, “specialist resources are allocated to homicide investigations”. It is not necessary at this point in the judgment to consider the effect of those differences.

9. Detective Chief Inspector Jubelin stated that, following the discovery of Clinton Speedy’s remains, all three disappearances were treated as homicide investigations. Once again, it is unnecessary at this point in the judgment to deal with the criticisms made by Detective Chief Inspector Jubelin of the adequacy of the initial homicide investigations. However, even at this stage, it is important to bear in mind the limited basis upon which Detective Chief Inspector Jubelin’s affidavit was admitted. The evidence was objected to by the respondent, and was ultimately admitted for the limited purpose of establishing a reasonable basis for Detective Chief Inspector Jubelin’s suspicion that the respondent had committed the offences, which is a necessary foundation of the present application under s 105(2) of CARA. The applicant accepted that the evidence is not relevant to the Court’s determination as to whether the evidence in question is “fresh and compelling”

10. In those circumstances, the evidence cannot be used as evidence of the adequacy or otherwise of the initial police investigation into the disappearances of Colleen Walker, Evelyn Greenup or Clinton Speedy, and in particular, on the question of whether any material relied on by the applicant could have been adduced in the trials with the “exercise of reasonable diligence” for the purposes of s 102(2)(b) of CARA. However, having regard to the manner in which the applicant put his case, this may not be of particular importance.

11. On 8 April 1991, the respondent was charged with the murder of Clinton Speedy. On 16 October 1991, he was charged with the murder of Evelyn Greenup.

12. On 30 November 1991, an inquest was held into the disappearance of Colleen Walker, which was adjourned after one day and an “open” finding was made by the Coroner. On 29 September 1993, the inquest was re-opened for new evidence and the matter was then adjourned until 2 November 1994, when the Coroner found that there was insufficient evidence to pronounce Colleen Walker deceased.

13. The respondent sought an order pursuant to s 365(2) of the Crimes Act 1900 (NSW) as then in force that the counts in relation to Clinton Speedy and Evelyn Greenup be tried separately. On 25 August 1993, Badgery-Parker J made that order. Badgery-Parker J also concluded that the proposed “similar fact” evidence relied on by the Crown connecting the two murders was not admissible in either trial. The application was determined prior to the introduction of the Evidence Act 1995 (NSW).

14. The similar fact evidence sought to be relied upon by the Crown in support of a joint trial was summarised in the judgment of Badgery-Parker J of 25 August 1993. The similar fact evidence was said to be that:

“(a)   Speedy and Greenup were residents of Bowraville, a town of approximately 1100 people including 350 [Aboriginal persons]..

(b)   Speedy and Greenup were [Aboriginal persons] aged respectively 16 years and four years.

(c)   Speedy and Greenup were known to the accused prior to their disappearance.

(d)   Speedy disappeared on or about 1 February 1991, Greenup disappeared on or about 4 October 1990.

(e)   Speedy and Greenup were at parties which were held the night prior to each of them disappearing, such parties were also attended by the accused.

(f)   The remains of Speedy and Greenup were found near tracks leading off Congarinni Road, a secondary gravel road running from Bowraville across a bridge over the Nambucca River then on the [sic] Macksville. Speedy's remains were found on 18 February 1991, Greenup's remains were found on 27 April 1991.

(g)   There was no apparent attempt to cover (eg. by burial) either Speedy or Greenup.

(h)   The remains of both Speedy and Greenup showed a penetrating injury to the skull and signs of having been struck with considerable force."

24. Badgery-Parker J’s conclusion was in the following terms:

“The question as to each circumstance relied upon is not whether, taken alone, it is capable of proving the fact in issue but whether the combination of circumstances proved can carry the proof. In my view, even when one brings to account all of the background circumstances, namely those set out in the Crown's list in paragraphs (a)-(e), the three points of suggested similarity are not capable of supporting an inference, beyond reasonable doubt, that both murders were committed by the same person. If there were additional circumstances available to be proved, such that in total the evidence was capable of carrying the proof to the point where, beyond reasonable doubt, it appeared that both persons were killed by the same persons, then the similar fact evidence might be held admissible notwithstanding that it alone could not carry the proof so far. But on the material before me, the similarity which can be seen between the two crimes as detailed in the Crown's paragraphs (f), (g) and (h) is not so striking as, coupled with the other circumstances available, to be capable of proving beyond reasonable doubt that both crimes were committed by the same person.”

25. None of the evidence relating to the disappearance of Colleen Walker was led in the Speedy trial and no application was made to do so.

26. On 18 February 1994, the respondent was acquitted of the murder of Clinton Speedy. On 4 March 1994, a nolle prosequi, being a formal notice that the prosecutor will not proceed with the charge, was entered with respect to the charge of murder of Evelyn Greenup.

27. On 6 January 1997, the Commissioner of Police established a “Strike Force” to reinvestigate the deaths of Clinton Speedy and Evelyn Greenup and the disappearance of Colleen Walker.

28. On 9 February 2004, the State Coroner opened an inquest into the death of Evelyn Greenup and the suspected death of Colleen Walker (the 2004 inquest). After hearing the evidence, the Coroner concluded on 10 September 2004 that Evelyn Greenup died on or about 4 October 1990 in Bowraville. As to the death of Evelyn Greenup, the Coroner was satisfied that there was evidence capable of satisfying a reasonable jury properly instructed that she was murdered and further that there was a reasonable prospect that that jury would convict a known person (presumably, the respondent) of her murder. Accordingly, his Honour terminated the inquest, as required under s 19 of the Coroners Act 1980 (NSW). As to the death of Colleen Walker, the Coroner found that Colleen Walker died on or about 13 September 1990 near Bowraville as a result of homicide. However, his Honour was not persuaded that there was sufficient evidence to satisfy a jury that a known person was responsible for the murder.

29. Thereafter, an ex officio indictment was filed against the respondent for the murder of Evelyn Greenup and in February 2005 he was indicted to stand trial (the Greenup trial).

30. As the respondent had been acquitted of the murder of Clinton Speedy, no reliance was placed on evidence connecting him with that murder, on the basis that any attempt to lead it as coincidence evidence would inevitably have traversed the acquittal: R v Storey (1978) 140 CLR 364 at 372, 383, 396-397; [1978] HCA 39; Washer v Western Australia (2007) 234 CLR 492; [2007] HCA 48 at [5], [32]-[33], [38]. However, as we indicate at [32] below, one piece of evidence relating to the murder of Clinton Speedy was sought to be tendered.

31. The respondent was not charged with the murder of Colleen Walker at the time of the Greenup trial, and with one exception, no attempt was made to rely on the additional evidence of her death which was gathered during the reinvestigation and put before the Coroner. That exception was that the prosecution sought to tender evidence that, in the words of the trial judge, “if accepted, suggests that the accused has interfered so as to remove or pull down clothing of two women, including underclothing, of two girls or women on occasions other than that with which this trial is directly concerned”. It was said to be relevant to the evidence of Rebecca Stadhams in the Greenup trial that, when she woke on the morning of 4 October 1990, which was the day that Evelyn was found to have disappeared, her pants and underpants had been pulled down to her knees.

32. The evidence sought to be adduced was first, evidence of Patricia Grainier, who said that Colleen Walker had told her that the respondent had “mauled me all night. He touched me down low and up the top as well. This morning I had to pull my pants up when I woke. He’d got them down during the night”. In addition, the judgment recorded that the Crown informed the Court that it would seek to introduce evidence of Kelly Jarrett of the nature of that to which we have referred at [14] above. The judge indicated that he regarded the probative value of the evidence as “slight”, and rejected it: R v XX (Unreported, Supreme Court of New South Wales, Hulme J, 22 February 2006). What should be noted for present purposes is that the evidence of Patricia Grainier concerning comments made to her by Colleen Walker in relation to the respondent was sought to be adduced by the Crown at the Greenup trial.

33. On 3 March 2006, the respondent was acquitted of the murder of Evelyn Greenup.

34. The provisions of CARA in Division 2 of Part 8 which permitted the present application came into force on 15 December 2006. In June 2007, the Director of Public Prosecutions notified the police that, in his view, there was no “fresh and compelling” evidence to support an application under s 100(1) of CARA in respect of the acquittal of the respondent of the murders of Evelyn Greenup and Clinton Speedy. On 22 October 2010, the Attorney-General declined to refer the matter to this Court. A further request was made in June 2011 for the Attorney-General to consider making an application, and the Attorney-General again declined to do so on 8 February 2013. However, following a further request by the police, the Attorney-General made the present application on 16 December 2016.

35. On 15 December 2016, prior to the making of the application, in accordance with the process required by s 105(2) of CARA, the respondent was charged with the murders of Evelyn Greenup and Clinton Speedy.

The fresh evidence

a   The Walker evidence

36. It is important, at the outset of this judgment, to state with some degree of precision what is said by the applicant to be evidence which is “fresh” . In considering this issue, it is also of importance to have regard to the manner in which it is said the evidence is “fresh”, both in relation to the murder of Clinton Speedy and the murder of Evelyn Greenup.

37. The applicant set out the evidence which was said to be “fresh” in his written submissions and summarised it in a note prepared immediately prior to the hearing of the application. Principal reliance was placed on the evidence relating to the disappearance of Colleen Walker (the Walker evidence), which he submitted was not adduced in either the trial for the murder of Clinton Speedy or that of Evelyn Greenup. He submitted that, once this evidence was considered, “the evidentiary matrix relating to the murders of Clinton Speedy and Evelyn Greenup is significantly altered”. He submitted that the “complexion” of “much of that evidence changes; that is, the probative value of that evidence significantly increases”. He submitted that the Walker evidence would establish that “coincidence reasoning is permissible between the three murders”, and that “each of the children were murdered; they were murdered by the same person; and that person was [the respondent]”.

38. Part of the Walker evidence comprised the background material relating to her disappearance which we have summarised in [6]-[8] above. It also included the particular circumstances of Colleen Walker’s disappearance. Relevantly, the applicant referred to Colleen Walker’s planned trip to Goodooga, which he submitted was “widely known” throughout the community and referred to evidence that Colleen Walker had spoken “positively” about her plans.

39. The fresh evidence was also said to include evidence that Colleen Walker knew the respondent, who previously had been in what the applicant described as a “serious, but abusive relationship” with her aunt, Alison Walker. This evidence was derived from statements made by Alison Walker in 1991 and 1997, and evidence given by her at the 2004 inquest.

40. The fresh evidence was also said to include evidence that, during the night of the party on 13 September 1990, Colleen Walker was seen talking with the respondent, both inside the house in the lounge room and at a large tree located opposite the house. That evidence was based on a record of interview of Martin Greenup of 1991 and the evidence he gave at the 2004 inquest, and on the records of interview of David Ballangarry, Kelly Jarrett, Dallas Walker, Burke Stadhams, and Jason Buchanan of 1991, and of David Ballangarry and Michelle Flanders in evidence given at the 2004 inquest.

41. The fresh evidence was also said to include evidence that Colleen Walker had told various people at the party that the respondent was “harassing her” and “wanted to see her”, was “pressuring her” or was “putting it on her”. The evidence to the effect that Colleen Walker said that the respondent was “harassing her” was derived from evidence given by Maria Walker at the 2004 inquest, the evidence that she said that he was “pressuring her” came from the record of interview of Martin Greenup of 1991 and his evidence at the 2004 inquest, while the evidence that she said that he was “putting it on her” came from evidence given by Raymond West at the 2004 inquest.

42. Further, David Ballangarry, in his record of interview of March 1991, said that the respondent was pressuring Colleen Walker for sex because he heard Colleen Walker say “No, no” to the respondent and he “just knew what [the respondent] was doing”, while Michael West in his record of interview of 1991 and at the 2004 inquest, observed that Colleen Walker was upset during the evening. However, Jason Buchanan at the 2004 inquest also stated that Colleen was upset, but that this was because of Kelly Jarrett and Cathy Jarrett leaving her.

43. The fresh evidence was also said to include evidence that, around midnight on the night of the party, a number of persons stated that they saw the respondent, Colleen Walker and others standing around the large tree opposite Marjory Jarrett’s house, next door to Fred Buchanan’s house, where the party was taking place. That evidence was derived from records of interview of Kelly Jarrett, Jason Buchanan, David Ballangarry, Dallas Walker and Burke Stadhams of 1991, and evidence given by each of them at the 2004 inquest, with the exception of Burke Stadhams.

44. The applicant also relied on evidence to the effect that Colleen Walker told Kelly Jarrett that she was going to get two Centrelink forms located in Marjory Jarrett’s house that she had to give to Kelly before she left for Goodooga. That evidence was derived from records of interview of Kelly Jarrett, Jason Buchanan, Dallas Walker and Raymond West of 1991 and evidence given by David Ballangarry at the 2004 inquest. In his record of interview of 1991, Dallas Walker said that Colleen went to Marjory Jarrett’s house. David Ballangarry gave evidence at the 2004 inquest that he saw Colleen Walker cross the road heading towards Marjory Jarrett’s house, while Kelly Jarrett in her record of interview of 1991 and at the 2004 inquest, said she saw Colleen Walker walk across the road and down the side of the house. At the 2004 inquest, Kelly Jarrett stated that she did not see Colleen after that point.

45. The applicant also referred to the evidence of Patricia Stadhams. In her two records of interview of 1991, her record of interview of 1997 and at the 2004 inquest, she stated that at about midnight she saw Kelly Jarrett near the tree. She said on each of these occasions she saw Colleen Walker walking in front of Marjory Jarrett’s house and down the side of the house. There was evidence available, at least from the time of the Speedy trial, that the respondent’s mother owned a red Gallant motor vehicle. Patricia Stadhams gave evidence she saw that car in Marjory Jarrett’s driveway which was located at the back of Marjory Jarrett’s house and able to be accessed via the laneway which ran down the side of Marjory Jarrett’s house. She gave this evidence in her record of interview of 1997 and at the 2004 inquest.

46. Maria Walker gave evidence at the 2004 inquest, in a closed session on 18 February 2004, to the effect that she was sleeping in Marjory Jarrett’s house and around midnight she heard people walking down the side of the house which was closest to Fred Buchanan’s house, near her window. She said that she heard Colleen Walker’s voice as well as a male voice and heard a car start and take off. It should be noted that Maria Walker had also given a statement of 1991 and at the 2004 inquest on 12 February 2004 that was significantly different, and in some respects contradictory, to the account given in the closed session. There was also evidence given by Margaret Jarrett in her record of interview of 1991 and at the 2004 inquest and by Thomas Duroux in his statement of 1991, that Colleen Walker was not seen thereafter despite Margaret Jarrett looking for her in Marjory Jarrett’s and Fred Buchanan’s houses around 1:30am.

47. In statements made by Maxine Margaret Jarrett and Kathleen Paton in 1997 and in evidence given by them at the 2004 inquest, they said that the respondent had made comments to Colleen Walker which suggested he was interested in her sexually.

48. Patricia Grainer gave evidence in 1991 and at the 2004 inquest. She said that, a “couple of months” before the party on 13 September 1990, she and Colleen Walker had gone to the respondent’s caravan with the respondent and David Ballangarry after Colleen Walker and Patricia Grainer had been at a party. Patricia Grainer gave evidence that the respondent told the girls they could sleep on his bed which they proceeded to do. Patricia Grainer gave further evidence that she woke up and heard the respondent say to David Ballangarry “Do you want to have sex with the girls?”, to which David Ballangarry replied “No … Leave ‘em alone”. Patricia Grainer said that the respondent subsequently came and slept in the bed with them with Colleen Walker in the middle. Similar evidence was given by David Ballangarry in his record of interview of 1991 and, to a limited extent, at the 2004 inquest.

36. Patricia Grainer further said that, at about 5:00am she woke up and felt a hand running down her back from her shoulders to a bit below her waist. She stated that, a bit later, when she and Colleen Walker got out of bed, she saw that the respondent was still asleep on the bed. She said that in the morning Colleen Walker told her that the respondent “mauled me all night. He touched down below and up the top as well. This morning I had to pull my pants up when I woke, he’d got them down during the night”.

37. The applicant also submitted that certain matters referred to in his written submissions in reply constituted fresh evidence. However, the paragraphs referred to did not refer to any additional evidentiary matters, but rather sought to rebut certain aspects of an analysis of the evidence tendered by the respondent for the purposes of this application.

38. One of the matters relied on by the respondent in his submissions was that there were multiple sightings of Colleen Walker in a white Commodore motor vehicle on the evening in question. The applicant in his submissions stated there was ample evidence to the contrary. Reference was made to the evidence of Maxine Mary Jarrett in her record of interview of 1991 that she was in the car and Colleen Walker was not.

39. In that context, the applicant also referred to the evidence of George Smith in a statement given in 1997 to the effect that he was the driver of the white Commodore, that he parked the car under the tree opposite the house at which the party took place, that he had travelled there in the car with Maxine Mary Jarrett, Cinnamon Jarrett and Aldo Wilson, that he did not get out of the car, although one of the girls did, and that he waited 15 minutes and, when the girls returned, he left. He said that he knew Colleen Walker and that she was not in the car. In earlier interviews on 18 February 1991 and 19 March 1991 he had stated that he did not see Colleen Walker that night.

40. The applicant also referred in his submissions in reply to the evidence of David Ballangarry at the 2004 inquest to the effect that he heard the respondent make sexual references to Colleen Walker and that she had rebuffed him saying “no, no don’t touch me you go with my auntie you know you got kids to my auntie”. He had given evidence in 1991 that he heard Colleen say “no, no” to the respondent. In addition, he gave evidence to the 2004 inquest that, as he was walking home, he turned around and saw Colleen Walker cross the street and walk through the gate at the front of Marjory Jarrett’s house.

41. This review of the evidence demonstrates that most of the witnesses whose evidence is relied upon as fresh evidence relating to the death of Colleen Walker gave statements in connection with her death prior to the trial of Clinton Speedy, the principal exception being Maria Walker. Although Maria Walker did give a statement in 1991, she did not give evidence as to the events described at [46] above until 2004. Further, although there was significant elaboration of the evidence after the reinvestigation in 1997 and at the 2004 inquest, it was all available prior to the Greenup trial.

42. In an annexure to the note prepared by the applicant prior to the hearing which summarised the evidence said to be ‘fresh”, the applicant listed in tabular form the records of interview, statements and transcripts of evidence of various witnesses whose evidence was said to comprise the “fresh” Walker evidence. The table grouped the evidence under three headings. In relation to the first heading, which was “Last known movements of Colleen Walker”, all the witnesses listed except for two had given statements prior to the Speedy trial, while all the statements had been taken prior to the Greenup trial. That is, there is no statement later than 2004. The two exceptions were Ms Patricia Chapman, who gave a statement in 1997 outlining Margaret Jarrett’s movements on the night of the party, and Ian Lowe, who gave a brief statement in 1997 indicating that he had hired a white Commodore with George Smith and travelled to Kempsey with him.

43. In relation to the second heading, which was “Location and identification of Walker clothing”, two of the witness statements were made prior to the Speedy trial, while the remaining five were made after the Speedy trial but prior to the Greenup trial. Of those five, two were given by the police divers who had retrieved the bags of clothing from the Nambucca River in 1991, one was given by Ronald Dayman who had found the jeans while fishing in 1991, and one was given by a DNA expert to the effect that certain bones did not match the DNA of Colleen Walker.

44. So far as the third heading was concerned, which was “Respondent’s relationship with Colleen Walker”, the evidence of Kathleen Paton in a statement of 1997 and at the 2004 inquest and the evidence of Patricia Grainer at the 2004 inquest was given after the Speedy trial but before the Greenup trial. The first statement of Patricia Grainer was undated, but refers to Colleen Walker’s disappearance “last year”, and is therefore from sometime in 1991, before the Speedy trial.

45. We have indicated above that the applicant contends that the Walker evidence was “fresh” as it “significantly altered” the “evidentiary matrix relating to the murders of Clinton Speedy and Evelyn Greenup”. It was submitted that, “on any interpretation” of the term “adduced” in s 102 of CARA, the Walker evidence was “fresh”, since it was neither relied upon nor admitted in either the Speedy trial or the Greenup trial.

46. The applicant submitted that the evidence was “fresh and compelling” by reason of the use which could be made of it as “coincidence evidence” pursuant to s 98 of the Evidence Act1995 (NSW). An annexure to his written submissions contained a coincidence notice made in accordance with s 99 of the Evidence Act 1995 (NSW) and cl 6 of the Evidence Regulation 2015 (NSW): see R v Zhang (2005) 196 FLR 152; [2005] NSWCCA 437 at [131] (Zhang). The applicant identified the circumstances relied upon and the evidence in support of each of the coincidences. We have appended a redacted version of the notice to this judgment, with the name of the respondent removed. All the evidence relied upon to support these coincidences was in existence by the time of the Greenup trial.

b   The “informer” evidence

60. The applicant also relied upon the evidence of four informers, Mr R, Mr K, Mr I and Mr M as “fresh”. It is said that they informed police officers that the respondent had made admissions in relation to the offences.

61. Mr I’s evidence related to admissions concerning the murder of Clinton Speedy. He gave the police the information in 1997, after the respondent had been acquitted of that murder.

62. Mr M’s evidence concerned the murder of Clinton Speedy and a “four year old girl”. He made statements to the police after the respondent was acquitted of the murder of Clinton Speedy but before he was tried for the murder of Evelyn Greenup. He gave evidence at the 2004 inquest and at the Greenup trial.

63. Mr K’s evidence related to the murders of both Evelyn Greenup and Clinton Speedy. He spoke to the police in 1998, before the Greenup trial, but after the Speedy trial.

64. Mr R’s evidence also related to the murder of Clinton Speedy. He first spoke to police in 1992, before both the Speedy and the Greenup trials.

c   The “other admissions” evidence

65. Hilton Walker gave evidence in the Greenup trial about the respondent telling him about having bodies being buried in “Yarnie” crops. It appears the first statement to this effect was given after the Speedy trial but before the Greenup trial, although Hilton Walker was interviewed twice in 1991 in relation to the murder of Clinton Speedy.

66. Maxine Margaret Jarrett gave evidence about an altercation that occurred in April 1990, prior to any of the disappearances, with the respondent in which he threatened to strangle her and put her out in the “Yarni plants” on Congarinni Road. She provided a statement to police to this effect in 1991. Although this evidence was not led at the Speedy trial, it was led at the Greenup trial.

67. Mark Thompson gave evidence about the same altercation with the respondent, in which he said that the respondent threatened to strangle him, take him to Congarinni Road and use him as fertiliser. Mark Thompson gave evidence of this in the Greenup trial. He made a statement regarding the matter in 1991, but the evidence was not sought to be led in the Speedy trial.

d   The “lies evidencing consciousness of guilt” evidence

68. The applicant seeks to rely on evidence of what are said to be “lies evidencing consciousness of guilt” as “fresh”. The evidence relates first, to answers the respondent gave to a journalist, Dan Box of The Australian newspaper in May 2016, when he was asked questions about the deaths of Colleen Walker and Evelyn Greenup and second, part of his evidence in the Speedy trial.

69. It should be noted that the applicant accepted that the evidence relied upon as “fresh” which we have referred to under headings (b), (c) and (d) above would not either alone or in conjunction be sufficient to warrant an order under s 100(1) of CARA without the Walker evidence. Equally, it was submitted that the Walker evidence on its own would be sufficient to satisfy the requirements of the section.

The legislation

70. The relevant provisions of CARA are in the following terms:

“100   Court of Criminal Appeal may order retrial – fresh and compelling evidence

(1)   The Court of Criminal Appeal may, on the application of the Director of Public Prosecutions, order an acquitted person to be retried for a life sentence offence if satisfied that:

(a)   there is fresh and compelling evidence against the acquitted person in relation to the offence, and

(b)   in all the circumstances it is in the interests of justice for the order to be made.

(2)   If the Court of Criminal Appeal orders an acquitted person to be retried, the Court is to quash the person's acquittal or remove the acquittal as a bar to the person being retried for the offence (as the case requires).

(3)   The Court of Criminal Appeal may order a person to be retried for a life sentence offence under this section even if the person had been charged with and acquitted of manslaughter or other lesser offence.

(4)   The Court of Criminal Appeal cannot order a person to be retried for a life sentence offence under this section where the person had been charged with and acquitted of the life sentence offence but had been convicted instead of manslaughter or other lesser offence.

….

102   Fresh and compelling evidence – meaning

(1)   This section applies for the purpose of determining under this Division whether there is fresh and compelling evidence against an acquitted person in relation to an offence.

(2)   Evidence is fresh if:

(a)   it was not adduced in the proceedings in which the person was acquitted, and

(b)   it could not have been adduced in those proceedings with the exercise of reasonable diligence.

(3)   Evidence is compelling if:

(a)   it is reliable, and

(b)   it is substantial, and

(c)   in the context of the issues in dispute in the proceedings in which the person was acquitted, it is highly probative of the case against the acquitted person.

(4)   Evidence that would be admissible on a retrial under this Division is not precluded from being fresh and compelling evidence merely because it would have been inadmissible in the earlier proceedings against the acquitted person.

…

104   Interests of justice – matters for consideration

(1)   This section applies for the purpose of determining under this Division whether it is in the interests of justice for an order to be made for the retrial of an acquitted person.

(2)   It is not in the interests of justice to make an order for the retrial of an acquitted person unless the Court of Criminal Appeal is satisfied that a fair retrial is likely in the circumstances.

(3)   The Court is to have regard in particular to:

(a)   the length of time since the acquitted person allegedly committed the offence, and

(b)   whether any police officer or prosecutor has failed to act with reasonable diligence or expedition in connection with the application for the retrial of the acquitted person.

105   Application for retrial – procedure

(1)   Not more than one application for the retrial of an acquitted person may be made under this Division in relation to an acquittal.

(1A)   An application may be made for a further retrial of a person acquitted in a retrial under this Part but only if it is made on the basis that the acquittal at the retrial was tainted.

(2)   An application for the retrial of an acquitted person cannot be made under this Division unless the person has been charged with the offence for which a retrial is sought or a warrant has been issued for the person's arrest in connection with such an offence.

Note : Section 109 requires the Director of Public Prosecutions' approval for the arrest of the accused or for the issue of a warrant for his or her arrest.

(3)   The application is to be made not later than 28 days after the person is so charged with that offence or the warrant is so issued for the person's arrest. The Court of Criminal Appeal may extend that period for good cause.

(4)   The Court of Criminal Appeal must consider the application at a hearing.

(5)   The person to whom the application relates is entitled to be present and heard at the hearing (whether or not the person is in custody). However, the application can be determined even if the person is not present so long as the person has been given a reasonable opportunity to be present.

(6) The powers of the Court of Criminal Appeal under section 12 of the Criminal Appeal Act 1912 may be exercised in connection with the hearing of the application.

(7)   The Court of Criminal Appeal may at one hearing consider more than one application under this Division for a retrial (whether or not relating to the same person), but only if the offences concerned should be tried on the same indictment.

(8)   If the Court of Criminal Appeal determines in proceedings on an application under this Division that the acquittal is not a bar to the person being retried for the offence concerned, it must make a declaration to that effect.

106   Retrial

…

(5)   At the retrial of an accused person, the prosecution is not entitled to refer to the fact that the Court of Criminal Appeal has found that it appears that there is fresh and compelling evidence against the acquitted person or, as the case requires, that it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been convicted.”

71. The provisions present significant difficulties of construction, particularly in the circumstances of the present case. The parties were divided as to the manner in which the application should be dealt with having regard to the provisions of s 105(7), the construction of “fresh” evidence in s 102(2), the construction of “compelling” evidence in s 102(3), the construction of s 102(4), and the manner in which the “interests of justice” are to be taken into account for the purpose of s 100(1)(b).

72. Prior to dealing with these issues, it is convenient to set out the background and history of the legislation. It is also convenient at the outset to consider the equivalent legislation in the United Kingdom and the cases which have dealt with that legislation, as the applicant has placed considerable reliance on the approach of the courts in the United Kingdom, given the absence of any Australian authority on the construction of the CARA provisions.

The legislative background and history

73. In R v Carroll (2002) 213 CLR 635; [2002] HCA 55, the respondent was convicted of perjury for giving false evidence at his trial for murder at which he was acquitted. The Queensland Court of Appeal quashed the conviction and its decision was upheld by the High Court. It was held that the perjury indictment was an abuse of process as the prosecutor had sought to controvert an acquittal on the charge of murder, given that the charge of perjury raised the same ultimate issue.

74. In September 2003, following community concern about this decision, a consultation draft of the Criminal Appeal Amendment (Double Jeopardy) Bill 2003 was issued for comment (the 2003 Draft Bill). Earlier, in July 2003, the then Attorney-General had requested Acting Justice Jane Mathews to provide an advice on the proposed legislation, particularly on “whether the safeguards contained in the [2003 Draft Bill] adequately protect individual rights”, and “whether any further safeguards should be included to ensure adequate protection of individual rights”.

75. The 2003 Draft Bill defined “fresh” evidence and “compelling” evidence in cl 9D(2) and cl 9D(3) in the same way as those expressions are now defined in s 102(2) and s 102(3) of CARA. In her advice, provided to the Attorney-General in November 2003 (the Mathews Advice), Acting Justice Mathews noted that the definitions were “identical or similar” to the parallel provisions in the Criminal Justice Bill 2002 in the United Kingdom (the UK Bill), which, at the time of the Mathews Advice, was before the House of Lords. Although the original draft of the UK Bill contained provisions which could be described as “identical or similar”, the Criminal Justice Act 2003 (UK) (the UK Act), as ultimately enacted into law, altered the definition of “new” evidence so that it was different to cl 9D(2) of the 2003 Draft Bill.

76. Her Honour also dealt with cl 9D(4) of the 2003 Draft Bill, which was the predecessor to s 102(4) of CARA. That clause, unlike its comparable provision in CARA, simply provided that, for the purpose of the section, it was “irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person”. Her Honour stated that she assumed that the section was “intended to exclude from the purview of ‘fresh evidence’ any evidence which was not introduced in the earlier proceedings because it was, or was considered to be, inadmissible”. Her Honour noted that submissions made in relation to the 2003 Draft Bill had expressed confusion about the operation of the provision and suggested that its scope and intention be clarified.

77. At the same time, in November 2003, the Model Criminal Code Officers Committee (the Committee) of the Standing Committee of Attorneys-General produced a discussion paper on a number of matters, including double jeopardy (the MCCOC Discussion Paper). That Discussion Paper extensively considered the provisions in the UK Bill, both in its original version prior to its amendment in May 2003, namely, that evidence was “new” if it “was not available or known to an officer or prosecutor at or before the time of acquittal”, and also in relation to the version which was ultimately enacted. In relation to the provision in its original form, the Discussion Paper noted that the United Kingdom Law Commission had recommended that “it should not be possible to apply for a retrial on the basis of evidence which was in the possession of the prosecution at the time of the acquittal but could not be adduced because it was inadmissible, even if it would now be admissible because of a change in the law”.

78. The Committee came to the conclusion that an exception to the double jeopardy principle for “fresh and compelling” evidence was “justified”. This conclusion was subject to conditions. These included that, first, the court must be “satisfied that there is fresh evidence which is both reliable and sufficiently compelling to call into question the safety of the previous acquittal”. Second, the court must be “satisfied that fresh evidence was not available to be presented at the first trial and that the investigation was conducted with due diligence – and a change in the legal rules of inadmissibility since the acquittal allowing the evidence will not make that evidence fresh evidence for these purposes”.

73. The Committee also dealt with the distinction between “fresh” evidence and “new” evidence. They made the following comments:

“‘Fresh evidence’ and ‘New evidence’: While it is common for people to refer to ‘fresh evidence’ and ‘new evidence’ interchangeably, it happens that there is a technical legal distinction between ‘fresh’ and ‘new’ evidence. In essence, the distinction is between evidence that could not have been brought to the primary trial (fresh evidence) and evidence that existed at the time of the primary trial but was not, for whatever reason, adduced at that trial (new evidence). There are sophisticated legal debates about the difference. The difference may be vital. The UK Bill opted for ‘new evidence’. It says:

72   New and compelling evidence.

(1)   The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence.

(2)   Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).

‘Fresh evidence’ is more restrictive than that. This is a common definition. It is the first of the three parts which is critical:

‘in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.’

The difference is clear. If the ‘new evidence’ test is applied then, all else being equal, a defendant may be retried if a crucial piece of existing evidence was not presented at trial because of a mistake by police or prosecution. If a ‘fresh evidence’ test is applied, then there can be no retrial on that basis. The Committee is of the opinion that, given the departure from fundamental general principle being suggested here, it should recommend the more limited exception. The prosecution should not be allowed to retry the accused on the basis of the incompetence of its first effort. To do so would be to encourage sloppiness.”

80. In that context, they recommended that “fresh and compelling” evidence be defined in the same way as it now appears in s 102(2)-(3) of CARA. In making that recommendation, they made the following further remarks:

“Fresh

The distinction between ‘new’ and ‘fresh’ evidence is important. In essence, ‘new’ evidence is simply evidence that was not presented at the original proceedings (for whatever reason). ‘Fresh’ evidence is evidence that is ‘new’ with an additional condition: it could not have been presented at the original proceedings despite competent police and/or prosecution work. The United Kingdom double jeopardy reforms have opted for the lower threshold of ‘new’ evidence. The Committee believes that allowing retrials for all ‘new’ evidence is not appropriate given the departure from long-standing legal principle being suggested with these double jeopardy reforms. The evidence should not have been available, through the exercise of due diligence, at the time of the original acquittal – this is the essence of ‘fresh’. The New South Wales consultation Draft of the Criminal Appeal Amendment (Double Jeopardy) Bill 2003 adopts the higher threshold of ‘fresh’ evidence.”

81. In the second reading speech introducing the Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2006 (the 2006 Bill), the Premier made the following remarks:

“I would like to deal first with the Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill. This bill provides one of the most significant reforms to the criminal law enacted in Australia in recent times. The ancient rule of double jeopardy provides that a person may not be tried for the same offence twice. Its purpose is to ensure that criminal proceedings can be brought to a conclusion, and the result in a trial can be regarded as final. It protects individuals against repeated attempts by the State to prosecute. The rule encourages police and prosecutors to be diligent and careful in their investigation and to gather as much evidence as possible against the accused. In this sense, it promotes fairness to the accused and justice for the victim and the community. However, the strengths of the double jeopardy rule also bring weaknesses and too rigid an adherence to the rule may bring the law into disrepute.

There will sometimes be cases where diligent police and prosecutors will still fail to find all the possible evidence. Perhaps it is being concealed from them deliberately, or perhaps developments in forensic technology will reveal new evidence or new conclusions to be drawn from existing evidence. In such cases, there may well be grounds to bring the accused back to trial. In fact, not to do so risks perpetrating a major injustice by allowing a guilty person to walk free even when there is compelling evidence of his or her guilt and this can bring the justice system into disrepute.

…

As honourable members will be aware, the Government first announced its intention to reform the ancient rule of double jeopardy in 2003. The Government released an exposure draft bill in 2004 and sought expert advice from Acting Justice Jane Mathews. We also considered models proposed by the national Model Criminal Code Officers Committee, as well as pioneering reforms already enacted in the United Kingdom. The community's views and the view of experts in the field have all been taken into account in drafting this bill.

…The first key provision is new section 100. This section allows the Director of Public Prosecutions to apply to the Court of Criminal Appeal for permission to retry an acquitted person if there is fresh and compelling evidence. The court can order a retrial under this section if it reaches the view that there is fresh and compelling evidence and it is in the interests of justice.

… Fresh evidence is defined by new section 102 to be any evidence that was not adduced at trial and could not have been adduced at trial with reasonable diligence. Compelling evidence is also defined under new section 102 to cover evidence that is substantial, reliable, and probative of the prosecution case in the context of the issues in dispute.

The new section 104 defines the interests of justice. This section will require the court to consider the amount of time elapsed since the offence was alleged to have been committed and whether there was any failure to act with due diligence on the part of the police or the prosecution. The court must also reach the view that a fair trial is likely. These tests will ensure that only strong cases proceed to retrial.

…

As a final note on this bill, honourable members may be aware that the Council of Australian Governments [COAG] has recently agreed to consider a national approach to double jeopardy reform. A COAG working group has been established, jointly chaired by the Commonwealth and New South Wales. The COAG working group will be considering this bill, as well as the model proposed by the Model Criminal Code Officers Committee. These two models differ in some details, but are broadly consistent in their structure and approach.”

82. Although it cannot be used as an aid to the interpretation of the provision, the respondent placed reliance on the reasoning of the Honourable James Wood AC QC in a report into the relevant provisions of CARA, carried out by him in September 2015 at the request of the Attorney-General (the Wood Report). At the time that Mr Wood was preparing his Report, a Bill had been introduced into Parliament: the Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2015 (NSW) (the 2015 Amendment Bill). The Bill sought to extend the definition of “fresh” evidence to include evidence which was “inadmissible in the proceedings in which the person was acquitted”, and, as a result of “substantive legislative changes in the law of evidence since the acquittal, it would now be admissible if the acquitted person were to be retried”. Mr Wood was asked to report on the desirability of an amendment to that effect.

83. In the executive summary of the Report, Mr Wood stated that the current definition of “fresh” evidence confined “applications under s 102 to evidence that was not tendered to the court in the original proceedings”. He stated that he had examined “the ramifications of amending the provision so that only evidence that was admitted into evidence is excluded from the definition of ‘fresh’”, and the “merit of adding a further definition of ‘fresh’ evidence to the statute, so that evidence that was inadmissible at the time of the original proceedings that has since become admissible due to a change of law could come within the definition”. He stated that it was “premature” to consider such amendments until this Court had an opportunity to consider the provisions.

84. Mr Wood stated that, in his view, “adduced” could not be understood “to mean anything other than tendered to the court”. He said that it did not mean “admitted”, but rather, that the two terms represent two different steps: “a party adduces (or tenders) evidence to the court and the court then either admits or rejects that evidence”. He stated, referring to Zhang at [38], that this approach was supported by case law relevant to the meaning of the word “adduced” in the Evidence Act 1995 (NSW).

85. Mr Wood noted that the central difference between the CARA provisions and their United Kingdom equivalents is “the use of the terms ‘fresh’ in NSW and ‘new’ in England and Wales”. He stated that “[t]here is a technical legal distinction between ‘fresh’ and ‘new’. Fresh evidence equates to evidence that could not have been brought to the primary trial. New evidence is evidence that may have existed at the time of the primary trial, but was not, for whatever reason, brought to that trial”. He referred to the acceptance of that difference by the Committee and noted that cases in the United Kingdom supported the proposition that “new” does not necessarily mean “newly-discovered”.

86. Mr Wood expressed the view that the differences between the definitions of “new” and “fresh” may “impact on the way ‘adduced’ is interpreted in the two jurisdictions”, but noted that the cases in the United Kingdom were the only available judicial guide to the interpretation of the provisions of CARA.

87. Mr Wood also considered the operation of s 102(4). He pointed to two possible interpretations. The first, which was adopted by the applicant in the present case, was that the subsection “permits evidence that was available but previously inadmissible to ground an application for a new trial”. The second was a more restrictive interpretation, being that the subsection “deals only with the question of admissibility at a retrial once fresh evidence is found to exist, and applies the current evidentiary rules to that evidence”. He concluded that the adoption of the word “fresh” by the New South Wales legislature led to the conclusion that “it is the second construction rather than the first that was intended”, as did the use of the phrase “is not precluded” in s 102(4), compared with the word “irrelevant” in the equivalent legislation in the United Kingdom.

88. In dealing with potential amendments to s 102, Mr Wood considered the question of whether the reach of s 102 should be widened by “redefining the word ‘adduced’ to expressly mean ‘admitted’, or by explicitly broadening the provision to enable an application to quash an acquittal where a change in law renders evidence that was previously available but inadmissible to now be admissible”. Mr Wood stated that he understood that such amendments would “clear the way for an application to quash an acquittal in three scenarios”. First, where the court “wrongly rejects admissible evidence and as a consequence the accused is acquitted”. Second, where the prosecution “had evidence that was available but chose not to tender it because it was assumed not to be of probative value” and the accused is acquitted, but “the significance of this evidence changes and/or it later becomes admissible”. Third, where evidence is properly rejected as inadmissible and the accused is acquitted, but the evidence “becomes admissible at a later date as a result of a change in the law”. He expressed the view that, under CARA in its current form, an application to quash the acquittal would be rejected in all three scenarios.

89. Mr Wood said that amending the word “adduced” to “admitted” could “enliven an application under s 102 in relation to the second and third scenarios” to which we have referred at [88] above. He came to the view that such an amendment should not be made. In that context, he repeated his view that there was “a deliberate choice” by the legislature to “confine fresh evidence to evidence arising through recent developments such as a post-acquittal confession, newly-discovered DNA evidence, or the emergence of an eyewitness whose existence was previously unknown”. He stated that this corresponded with “the selection of the word ‘adduced’, the natural meaning of which extends to evidence that was tendered or proffered to the court”.

90. Mr Wood also considered whether s 102 should expressly be amended to “extend to evidence that was previously inadmissible but made admissible due to a later change in the law”. He repeated his view that “s 102(4) conveys a clear legislative intention that focuses its application only in relation to the admissibility at a retrial of newly emerged evidence” and that it “seeks to do no more than to allow its admission at a new trial even though it may not have been admissible at the earlier trial”. He noted that it had “particular relevance in relation to the Bowraville cases”, in that the introduction of the tendency and coincidence evidence provisions of the Evidence Act 1995 (NSW) could allow “evidence deemed inadmissible under ‘similar fact’ principles to be used in a retrial”. However, he noted that “such an amendment could have a much wider reach”, giving as an example changes in the hearsay rule which could inadvertently produce “fresh” evidence.

91. The 2015 Amendment Bill to which we have referred at [82] above was rejected by the legislature following delivery of the Wood Report. It must be emphasised that neither the Wood Report nor the rejection of the 2015 Amendment Bill can be used as aids to interpretation: Chippendale Printing Co Pty Ltd v Commissioner of Taxation (1996) 62 FCR 347 at 360, 369; [1996] FCA 1259. Whether Mr Wood’s reasoning on the construction of the provisions of CARA is persuasive is a matter which must be considered by this Court itself, and it is dealt with subsequently in this judgment.

The United Kingdom legislation and judicial consideration of it by the Court of Appeal of England and Wales

a    The legislative background

92. Because considerable reliance was placed by the applicant on the approach taken by the Court of Appeal of England and Wales to corresponding legislation to that contained in Division 2 of Part 8 of CARA, it is convenient to deal with that legislation and that Court’s consideration of it at this point of the judgment.

93. The equivalent sections to ss 102 and 104 of CARA are ss 78 and 79 of the UK Act. Those sections are in the following terms:

“78   New and compelling evidence

(1)   The requirements of this section are met if there is new and compelling evidence against the acquitted person in relation to the qualifying offence.

(2)   Evidence is new if it was not adduced in the proceedings in which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to which the appeal related).

(3)   Evidence is compelling if—

(a)   it is reliable,

(b)   it is substantial, and

(c)   in the context of the outstanding issues, it appears highly probative of the case against the acquitted person.

(4)   The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those were appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal related.

(5)   For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.

79   Interests of justice

(1)   The requirements of this section are met if in all the circumstances it is in the interests of justice for the court to make the order under section 77.

(2)   That question is to be determined having regard in particular to—

(a)   whether existing circumstances make a fair trial unlikely;

(b)   for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed;

(c)   whether it is likely that the new evidence would have been adduced in the earlier proceedings against the acquitted person but for a failure by an officer or by a prosecutor to act with due diligence or expedition;

(d)   whether, since those proceedings or, if later, since the commencement of this Part, any officer or prosecutor has failed to act with due diligence or expedition.

…”

94. The UK Bill on which the UK Act was based, in its original form, stated that evidence was “new” if it was “not available or known to an officer or prosecutor at or before the time of the acquittal”. The relevant provisions of the UK Bill were in the following terms:

“65   New and compelling evidence

(1)   The requirements of this section are met if there is new and compelling evidence that the acquitted person is guilty of the qualifying offence.

(2)   Evidence is new if it was not available or known to an officer or prosecutor at or before the time of the acquittal

(3)   Evidence is compelling if—

(a)   it is reliable,

(b)   it is substantial, and

(c)   when it is considered in the context of the outstanding issues, it is highly probable that the person is guilty of the offence.

(4)   The outstanding issues are the issues in dispute in the proceedings in which the person was acquitted and, if those are appeal proceedings, any other issues remaining in dispute from earlier proceedings to which the appeal relates.

(5)    For the purposes of this section, it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person.

(6)   In subsection (2) the reference to an officer or prosecutor includes a reference to a person charged with corresponding duties under the law in force elsewhere than in England and Wales.

(7)   Where the earlier prosecution was conducted by a person other than a prosecutor, subsection (2) applies in relation to that person as well as in relation to a prosecutor.

66   Interests of justice

(1)   The requirements of this section are met if in all the circumstances it is in the interests of justice for the court to make the order under section 64.

(2)   That question is to be determined having regard in particular to—

(a)   whether it is likely that a fair trial pursuant to the order would be possible;

(b)   for the purposes of that question and otherwise, the length of time since the qualifying offence was allegedly committed;

(c)   whether it is likely that the new evidence would have been available sooner (either in the earlier proceedings against the acquitted person or subsequently) but for a failure by an officer or by a prosecutor to act with due diligence;

(d)   whether any officer or prosecutor has failed to act with due expedition since the new evidence became available or known to him or, if later, since the commencement of this Part.

(3)   In subsection (2) references to an officer or prosecutor include references to a person charged with corresponding duties under the law in force elsewhere than in England and Wales.

(4)   Where the earlier prosecution was conducted by a person other than a prosecutor, subsection (2)(c) applies in relation to that person as well as in relation to a prosecutor.”

230. We have reached the conclusion that the word “adduced” in s 102(2) means “tendered” or “brought forward” as distinct from “admitted” without regard to the principle of legality. However, as we have indicated at [148] above, although it may only have a limited application in the circumstances of the present case, it does provide further support for the conclusion which we have reached. The potential curtailment of the principle against double jeopardy as a result of inadmissible evidence becoming admissible is not stated in “unmistakable and unambiguous language”. As was stated in Coco v The Queen at 437, there must be “some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment” of the right, but also determined upon such abrogation or curtailment. In the present case, there is no indication that the legislature intended the curtailment of the right to be protected against double jeopardy to extend to circumstances where evidence which was previously inadmissible becomes admissible.

231. We should add that the conclusion which we have reached on this issue is consistent with the conclusion of Mr Wood QC in his Report, whose reasoning we gratefully adopt.

The applicant’s fallback position

249. As a fallback position, the applicant contended that, if the word “adduced” in s 102(2)(b) meant “tendered” or “brought forward”, then the evidence upon which the applicant relied could not have been tendered “with the exercise of reasonable diligence” because it was inadmissible. In practical terms, such a construction would lead to the same result as if the word “adduced” in the section meant “admissible”. It should not be accepted for the following reasons.

250. First, it ignores the fact that s 102(2)(b) refers to evidence which “could not have been adduced” with “the exercise of reasonable diligence”. Coupled with the meaning of the word “adduced” to which we have referred at [249] above, s 102(2)(b) refers to evidence that “could not have been brought forward with reasonable diligence”. The construction sought to be placed on s 102(2)(b) by the applicant in this submission effectively means reading s 102(2)(b) as stating that the evidence “could not have been admitted” with reasonable diligence. That is not what the section says and there is no reason to construe it in that fashion.

251. Second, if our opinion as to the meaning of the word “adduced” is correct, then the construction contended for by the applicant would lead to incongruity and lack of coherence in the construction of s 102(2)(a) and s 102(2)(b) because the same word would bear different meanings in each subsection. To the extent possible, a construction which preserves the unity of the statutory scheme should be preferred: Project Blue Sky at [69].

252. Third, the construction contended for by the applicant produces anomalous results. Evidence which was tendered, but rejected, would fall outside s 102(2)(b), but evidence not tendered because the prosecutor held a rational belief that the tender would be rejected would fall within s 102(2)(b). There is no reason to suggest the legislature intended such a result.

253. Fourth, the construction contended for by the applicant sits uneasily with s 102(4). The use of the words “merely because it would have been inadmissible” in that subsection indicates that inadmissibility is not of itself a sufficient criterion to render the evidence “fresh”.

254. Fifth, without repeating what we have stated above, the use of the word “fresh”, the extrinsic material and the principle of legality all demonstrate that the legislative intention was that the section was intended to refer to evidence which was not available to be “brought forward” with “the exercise of reasonable diligence” in the sense we have described.

255. It follows that s 102(2)(b) cannot be construed in the manner contended for by the applicant.

Is the Walker evidence “fresh” in relation to the murder of Evelyn Greenup?

256. As we have indicated at [54] above, the Walker evidence was available prior to the Greenup trial. Indeed, part of it was sought to be tendered in that trial, as we have noted at [31]-[32] above. It follows that all the Walker evidence was available to be tendered at the Greenup trial and, subject to the one exception, was not tendered. In those circumstances, the evidence was not “fresh” within the meaning of s 102(2) of CARA.

257. As we indicated at [69] above, the applicant conceded that the “informer” evidence, the “other admissions” evidence and the “lies evidencing consciousness of guilt” evidence, even if “fresh”, would not be sufficient to justify setting aside either acquittal if the Walker evidence was not also “fresh”.

258. Notwithstanding that concession, it should be noted that all of the “informer” evidence and the “other admissions” evidence was also available prior to the Greenup trial and so is not “fresh”. However, a statement made by the respondent in an interview with Dan Box in 2016, which was relied on by the applicant as a “lie evidencing consciousness of guilt”, was made after the Greenup trial, and thus, was “fresh” for the purposes of s 102(2). The portion relied upon by the applicant was in the following terms:

“Box:   And again, I’m not trying to be rude. Did you go into that room where Rebecca was sleeping with Evelyn after ---

[The respondent]:   No.

Box:   they went to sleep?

[The respondent]:   No.

Box:   You’re saying you had nothing to do with Evelyn’s disappearance?

[The respondent]:   That’s right."

259. There are self-evident problems with treating this evidence as “compelling” for the purposes of s 102(3). First, it is not an admission against interest and so is not admissible by reason of s 81 of the Evidence Act 1995 (NSW). Second, even if it could be admitted as hearsay evidence under s 65(2)(c), it would need to be established that it was made in circumstances that made it “highly probable that the representation is reliable”. The relevant representations in the above extract are that the respondent did not go into Evelyn’s room and had nothing to do with Evelyn’s disappearance. If these representations were found to be “reliable”, as required by s 65(2)(c), it would be destructive of any question of the guilt of the respondent.

260. Further, for the statements to amount to an “implied admission of guilt” in the manner described in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, it would be necessary to prove that they were false. That would inevitably involve independently proving the respondent’s guilt beyond reasonable doubt. In the circumstances, quite apart from the other difficulties to which we have referred, the evidence is not “highly probative” for the purposes of s 102(3)(c).

261. It follows that the application to quash the respondent’s acquittal for the murder of Evelyn Greenup must be refused.

The Speedy acquittal

262. The express purpose of the Attorney-General’s application was to permit the applicant to be tried for all three murders in the same trial. In the application filed by the Attorney-General, the relief sought was explained in the following terms:

“4   The Applicant seeks an order of the Court quashing the Respondent’s acquittals in relation to the murder and manslaughter of Clinton Speedy and Evelyn Greenup (or, alternatively, an order removing the acquittal as a bar to the Respondent being retried for those murders) to enable a retrial of those counts jointly on an indictment with the murder of Colleen Walker.

5   The Applicant seeks a declaration that the Respondent’s acquittals in relation to the murder and manslaughter of both Clinton Speedy and Evelyn Greenup is not a bar to the Respondent being retried for those offences.”

263. The relief sought was framed accordingly; the applicant sought “an order that the respondent be retried for the murders of Clinton Speedy and Evelyn Greenup” (order 5). There was no separate order sought in the application that the respondent be retried for the murder of Clinton Speedy.

264. In his written and oral submissions until shortly before the conclusion of the sixth and final day of the hearing, the applicant presented his case consistently with the way in which it was framed in the application. The argument focussed critically on the unique strength of a case in which all three cases would be considered together, with evidence in relation to each murder being admissible as coincidence evidence in relation to each other murder. The applicant argued that the Walker evidence was fresh evidence in relation to both the murder of Clinton Speedy and the murder of Evelyn Greenup and that the evidence of each of those murders was “fresh” in relation to the other. A central plank of the argument was the potential use of the evidence of each murder as coincidence evidence in relation to each of the other murders. For convenience, we will refer to that as the three-part coincidence case.

265. The argument assumed that, in considering whether to quash each of two verdicts of acquittal entered twelve years apart, it would be permissible for the Court to consider all of the evidence that would be lead on a retrial for those two offences and a third together as a whole even if the evidence was not “fresh” in relation to one of the two acquittals. Contrary to that contention, we have concluded that the Court does not have authority under s 100(1) to order an acquitted person to be retried for an offence unless the evidence relied upon by the applicant is “fresh” in relation to that offence. We have also concluded that evidence cannot be regarded as “fresh” within the meaning of s 102(2) of CARA as a result of a change in the use that may be made of existing evidence owing to a change in the law and, further, that for the purpose of the definition of the term “fresh” in s 102(2) of the Act the term “adduced” does not mean “admitted”.

266. Those conclusions preclude consideration of the three-part coincidence case as it was framed and preclude the making of an order in the terms of order 5 sought in the application.

267. The question is whether it is nonetheless open to order the respondent to be retried for the murder of Clinton Speedy alone (on the understanding that he would be tried for that offence and for the murder of Colleen Walker in the same trial). That possibility was explored to a limited extent during the hearing but it is not the way in which the Attorney-General’s application was framed. The problem is complicated by the inconsistent positions adopted by both parties at various points. Accordingly, after reserving our decision, the Court called upon the parties to make further submissions addressing that issue. Our consideration of those further submissions has persuaded us that the course of ordering the respondent to be retried for the murder of Clinton Speedy but not Evelyn Greenup is not the case that was brought or argued by the applicant and cannot be permitted, for the following reasons.

268. It is beyond dispute that the Attorney General’s case was framed on the basis of the three-part coincidence case. So much was made plain in the “details of application” and in the terms of the relief sought (set out at [262]-[263] above). It was reiterated in the applicant’s opening address to the Court, when senior counsel said (T6.8):

“So, in a nutshell, this application relates to an attempt to quash the two acquittals in relation to Clinton Speedy and Evelyn Greenup, to enable one trial be run where the respondent is charged with those two murders and, for the first time, the murder of Colleen Walker.”

269. It was also the position uniformly adopted in the written submissions. In dealing with the s 105(7) issue in written submissions in reply, the applicant submitted that, if the Walker evidence was considered in relation to each acquittal separately, the application would “likely fail” since the applicant considered that, if the evidence from all three murders was not considered together, it would not have “significant probative value” for the purpose of s 98(1)(b) of the Evidence Act 1995 (NSW).

270. Further, in oral submissions on the true construction of s 105(7), senior counsel for the applicant expressly conceded that, if the applications in respect of the murders of Clinton Speedy and Evelyn Greenup were not heard together, there was “insufficient” to sustain the application. This occurred after senior counsel for the applicant made the statement set out at [268] above, when the following exchange took place between the Chief Justice and senior counsel for the applicant (T6.19-36):

“BATHURST CJ: Will that bring into play one thing that’s been troubling me, Ms Crown, and that’s the effect of subsection (7) of section 105:

‘The Court of Criminal Appeal may, at one hearing, consider more than one application for a retrial whether or not related to the same person, but only if the offences concerned should be tried on the same indictment’.

ABRAHAM: Yes.

BATHURST CJ: Does that mean, as a matter of jurisdiction, as a precondition of exercising of jurisdiction in the manner you seek to have it exercised, we have to be satisfied that the offences should be tried on the same indictment?

ABRAHAM: Yes, in my submission. Which is why we say that a preliminary argument needs to be whether or not the matters can be properly joined, because we accept if we are wrong about that argument, then there is insufficient to sustain an application.”

271. There were other concessions made by the applicant in both written and oral submissions in effect disavowing any reliance on a two-part coincidence case. Indeed on a number of occasions the applicant appeared to concede that an application for a retrial of only one of the offences could not succeed. In his written submissions in chief at [212], the applicant stated that the “similarities which exist between three murders is a fundamentally different case than links between only two murders”, and made similar statements at [11], [183] and [326].

272. As already noted, the respondent’s position argued in written submissions served well in advance of the hearing (reiterated orally at T241-248) was that the Court was required to take a sequential approach to the two acquittals. In opposing consideration now of the two-part coincidence case, the respondent noted that the applicant did not make any attempt, in response to the written submissions, to advance a case in support of success on the overall application if a sequential approach were taken, let alone that an application for a single retrial could succeed. On the contrary, the applicant’s written submissions in reply persisted in the argument in support of the three-part coincidence case, indeed relying on the perceived weakness of any two-part coincidence case to support the construction of CARA contended for by the applicant. Thus it was submitted at [17] and [18] of the written submissions in reply:

“17.   Unsurprisingly, therefore, the Applicant accepts that the probative value and compelling nature of the Fresh Evidence (and its use as coincidence evidence) would decrease significantly if the Fresh Evidence of only two of the three murders could be considered. Indeed, as the High Court recently recognised in Hughes v The Queen, evidence of a tendency might well be weak by itself, but its probative value is to be assessed together with other evidence.

18.   In these circumstances, if the applications for the retrial of the Respondent for the murders of Mr Speedy and Ms Greenup were held separately, the rule of double jeopardy would prevent any coincidence argument from being run. The gist of the Applicant’s case would then fall away. As such, to construe Part 8 of CARA as bringing about this outcome would result in absurdity. It would render s 105(7) of CARA meaningless.”

273. That position was reiterated in several exchanges during the hearing, including in the following exchange (T92.27-45):

“MCCALLUM J: You’re saying its compellability is linked to the fact that there are three.

ABRAHAM: Yes.

MCCALLUM J: And two won’t be enough, three is what gets you the picture so--

ABRAHAM: And with respect, particularly the two being Colleen Walker and Evelyn Greenup. In my submission one--

MCCALLUM J: So the Speedy acquittal informs this algorithm?

ABRAHAM: Absolutely.

MCCALLUM J: And that’s why you run your argument that it has to be run as a whole?

ABRAHAM: Yes.”

274. Immediately following that exchange, the following exchange took place (T93.24-30):

“MCCALLUM J: So you wouldn’t seek an outcome of this application that you have only one of two acquittals?

ABRAHAM: Sorry, one of –

MCCALLUM J: Two – only one of the two acquittals quashed or removed as a bar?

ABRAHAM: One would need, I would think, to have all three to give it the compellability that one has.”

275. The same position was maintained in the applicant’s oral submissions in reply, when senior counsel agreed with the proposition that the reason the evidence was said by the applicant to be “compelling” was “because it can be used as coincidence evidence” (T355.4) and that “what is fresh and compelling is the evidence of the three events”.

276. It appears the first suggestion of any reliance on the two-part coincidence case came shortly after that exchange when, in the course of responding to a proposition put by Hoeben CJ at CL in support of the sequential approach contended for by the respondent, senior counsel for the applicant posited a fall-back position, saying (T358.1): “even if you were to look at just Walker and Speedy, with the other evidence that’s fresh, that would be enough to be fresh and compelling”.

277. The position crystallised in the following exchange towards the very end of the hearing:

“BATHURST CJ: Second, if we came to a view and I just want to make sure I know the hypotheses. If we came to the view that the evidence was fresh in the Speedy case, but not in the Greenup case such as that we justified order in your favour in Speedy, but not the other case, would you agitate for that or not?

ABRAHAM: Yes.

BATHURST CJ: So you’d take the fall-back position as it were?

ABRAHAM: Yes. Can I just pause there. We do say, as is obvious from the note, that Speedy is fresh on Greenup, just so there’s no--

BATHURST CJ: I understand that yes. I’m just going through the various hypothetical scenarios to know where you stand.”

278. In the further submissions addressing this issue, the applicant notes that, although senior counsel for the respondent rose to his feet to address other topics after that, he took no objection to the applicant’s reliance on the so-called fall-back position. The applicant also noted that the fall-back position had in fact been addressed without objection by senior counsel for the respondent in an earlier exchange (T248.1-27) as follows:

“HOEBEN CJ at CL: ...It means you might end up being able to use Walker into relation to Speedy but not in relation to Greenup.

IERACE: That would be the end result.

BATHURST CJ: You would have to show absent Greenup Walker is still compelling in relation to Speedy of course.

IERACE: Yes.

HOEBEN CJ at CL: It could be a much more difficult task for the applicant.

IERACE: But in the circumstance that Walker was excluded as being fresh in relation to Greenup that would be the end of the--

HOEBEN CJ at CL: Involving Greenup.

IERACE: Yes.

HOEBEN CJ at CL: But you could still use the two but it would be a much weaker case than have all three.

IERACE: One would then continue on to the interests of justice and the various matters that have to be considered under that heading.”

279. It is correct, as the applicant points out, that the respondent insisted the correct approach was that the applications in respect of the murder of Clinton Speedy and the murder of Evelyn Greenup should be dealt with sequentially. However, apart from contending that this approach was incorrect, the applicant did not submit that, even if that approach was adopted, he would be entitled to succeed. Thus, no submissions were made by either party on the question of whether the evidence said to be “fresh” was sufficient to justify ordering a retrial of the respondent for the murder of Clinton Speedy irrespective of whether there was any fresh evidence to justify ordering a retrial in relation to the murder of Evelyn Greenup. Nor were there any submissions that, even if the fresh evidence could be said to be “compelling” in respect of the murder of Clinton Speedy, it would be in the “interests of justice” to order a retrial in circumstances where there was not an order for the retrial in relation to the murder of Evelyn Greenup.

279. In the supplementary submissions, the applicant argued that it would be open to the Court to consider the two-part coincidence case. It was noted in that context that separate orders were sought quashing each acquittal. However, as submitted by the respondent, those orders are necessary and ancillary to the primary relief sought. Section 100(1) authorises the Court to order an acquitted person to be retried for an offence. Section 100(2) provides that, if the Court makes such an order, “the Court is to quash the person's acquittal or remove the acquittal as a bar to the person being retried for the offence (as the case requires)”. The essential authority conferred by the Act is to make an order that the acquitted person be retried.

280. The difficulty for the applicant is that the fall-back case, while consistent with the respondent’s legal analysis, is not the case the applicant sought to make. As noted on behalf of the respondent, even now there has been no application by the applicant to amend his application (so as to seek an order in the alternative to the order that the respondent be retried on both counts) and no application to withdraw the several important concessions made in written submissions and during the course of the hearing.

281. Even if such an application were to be made now (none has been), it would not be appropriate to grant it, for the reasons submitted by the respondent. He relied in that context on the decision of this Court in R v SH [2014] NSWCCA 218. That was a case in which, at the conclusion of a trial by judge alone, the judge directed himself to return a verdict of not guilty. The Crown brought an appeal against the acquittal under s 107 of CARA. After the completion of the Crown’s submissions and during the respondent’s address, the Crown sought leave to amend or supplement its grounds of appeal.

282. The Court listed nine reasons for refusing the application, a number of which the respondent submitted are relevant in the present case. Some are more significant than others. Three would be determinative, in our view. First, the proposition that the applications must be considered sequentially was squarely raised by the respondent from the outset. As explained above, far from reacting to that submission by reframing the application so as to address that case in the alternative, the applicant consistently and vigorously maintained that the approach contended for by the respondent was not only wrong but “would result in absurdity” and render s 105(7) of CARA “meaningless”. As submitted by the respondent, the position adopted in reply traversed that central aspect of the case as initially framed.

283. Secondly, it is significant, as it was held to be in R v SH, that the issue was raised exceedingly late (only minutes before the conclusion of a six-day hearing and still not the subject of any application).

284. Thirdly, contrary to the applicant’s submissions, it is clear that if an application were to be made now, it would be necessary to fix a further hearing date. In R v SH, after considering other authorities in the analogous context of appeals from acquittals, the Court said at [27] (per Macfarlan JA, Fullerton and Hamill JJ agreeing at [40] and [41]):

“In light of these authorities, the Court should be slow to afford any indulgence to the Crown which would have the effect of prolonging or expanding the Crown's appeal where the need for indulgence arises out of the Crown's failure to frame and pursue its appeal in a careful and timely fashion.”

286. Those remarks would have some force in the present context.

287. For those reasons, we have concluded that the issue whether the respondent should be retried for the murder of Clinton Speedy only (without also being retried at the same time for the murder of Evelyn Greenup) has not properly been raised for the determination of this Court.

288. It follows that we are of the view that the application must be dismissed.

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Coincidence Table (260 KB, rtf)   |  Coincidence Table (88.9 KB, pdf)

Amendments

14 September 2018 - [1] Change "5 March 2006" to "3 March 2005"

[137] Change Coco v The Queen "(1993)" to "(1994)"

[199] Change "appellant" to "applicant"

Decision last updated: 14 September 2018