The Bowraville Murders

For brevity this article is confined to the law in NSW. For a discussion on comparative double jeopardy laws see Standing Committee on Law and Justice, New South Wales Legislative Council, The Family Response to the Murders in Bowraville, 2014, Chapter 5.

This Act came into force in December 2006.

Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2015 (NSW) sch 1 cl 1 (hereinafter ‘the Bill’).

The evidence also raises the issue of the admissibility of tendency evidence however, this article is confined to the coincidence evidence for brevity and because that evidence appears to be stronger.

Evidence Act 1995 (NSW) s 98(1)(a). Notice can be dispensed with pursuant to s 100. Non-compliance with these provisions means that the evidence is inadmissible ES v R (No 1) [2010] NSWCCA 197 [37].

Evidence Act 1995 (NSW) s 98(1)(b).

New South Wales, Legislative Council Standing Committee on Law and Justice, Sydney, 12 May 2014, 8 ( Longman Mr , Jumbunna Indigenous House of Learning).

Standing Committee on Law and Justice, above n 1, 38.

Lawyers on behalf of the families of Colleen, Clinton Evelyn submitted applications fora retrial firstly to the ODPP in 2007 and then to Attorney-Generals, Hatzistergos John in 2010 and Smith Greg in 2011. All of the applications were refused: see Standing Committee on Law and Justice, above n 1, Chapter 6.

R v Gale; R v Duckworth [2012] NSWCCA 174, [31] ( McClellan CJ at CL and Fullerton J agreeing).

Crimes (Appeal and Review) Act 2001 (NSW) s 100.

Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2015 (NSW) Schedule 1 cl [1].

R v Gale; R v Duckworth [2012] NSWCCA 174, [25]; R v Nassif [2004] NSWCCA 433 [52].

R v Gale; R v Duckworth [2012] NSW CCA 174, [26].

R v Nassif [2004] NSWCCA 433, [52].

The facts presented are drawn from: Standing Committee on Law and Justice, above n 1; New South Wales, Legislative Council Standing Committee on Law and Justice, Sydney, 12 May 2014, 8 ( Longman Mr , Jumbunna Indigenous House of Learning); NSW Police, Submission No 20 to New South Wales Legislative Council Standing Committee on Law and Justice, Inquiry into Family Response to the Murders in Bowraville, 10 March 2014.

New South Wales, Legislative Council Standing Committee on Law and Justice, Sydney, 12 May 2014, 5 ( Longman Mr , Jumbunna Indigenous House of Learning).

NSW Police, above n 16, 20.

R v Lockyer (1996) 89 A Crim R 457, 459.

Samadi and Djait v R [2008] NSWCCA 330, [85]; AE v R [2008] NSWCCA 52, [43].

Hoch v R (1988) 165 CLR 192; Pfennig v R (1995) 182 CLR 461.

Evidence Act 1995 (NSW).

R v Ellis [2003] NSWCCA 319.

Ibid [96].

Pfennig v R (1995) 182 CLR 461, 483–484 ( Mason CJ Deane Dawson JJ ).

BP v R [2010] NSWCCA 303, [109].

Pfennig v R (1995) 182 CLR 461, 530–531.

Ibid 531.

R v Linard Shamouil [2006] NSWCCA 112; R v Keenan Mundine [2008] NSWCCA 55.

Standing Committee on Law and Justice, above n 1, 77.

Pfennig v R (1995) 182 CLR 461, 528–529 ( McHugh J ); R v RN [2005] NSWCCA 413.

Crimes (Appeal and Review) Act 2001 (NSW) s 102.