False hope offered to victims of rape under double-jeopardy laws, leading lawyer warns

Those affected by evidence bungling at Qld’s DNA lab are being given false hope under proposed double-jeopardy laws.

Former Queensland Law Society president Bill Potts says DNA evidence shelved during the state’s forensic lab disaster cannot be considered ‘fresh’. Picture: Glenn Hampson

Rape victims affected by bungling of evidence at Queensland’s DNA lab are being given false hope that their attackers will be brought to justice under proposed double-jeopardy laws, a leading criminal lawyer has warned.

The Palaszczuk government has announced an overhaul of double-jeopardy exemptions to allow people acquitted of rape to be retried if “fresh and compelling” evidence is found.

Former Queensland Law Society president Bill Potts says DNA evidence shelved during the state’s forensic lab disaster cannot be considered “fresh”.

“The key question is: was the evidence reasonably available at the time? And it seems that the evidence was available, the samples were there,” he said.

“What has prevented it from being made available is either incompetence, sheer dishonesty or a very poor culture.”

In a scathing report handed down this month, former Court of Appeal president Walter Sofronoff found dodgy practices at the government’s DNA lab had compromised thousands cases, opening the door for new charges, appeals and retrials.

A testing threshold, introduced by the lab in 2018, meant crime-scene samples with low levels of DNA were never tested. Thousands of mothballed samples are now being tested, which could help convict killers and rapists who have evaded justice.

Under current Queensland law only people acquitted of murder can be retried if new evidence is discovered after the initial trial.

Mr Potts said the state’s ­double-jeopardy provisions for murder had only been tested once and did not result in a conviction.

“So in my view this review is a complete smoke-and-mirrors ­exercise by the government,” Mr Potts said.

“Victims need the government to be realistic. There is simply no evidence that any cases will turn on this.”

Mr Sofronoff, who led the DNA inquiry, said he believed people ­acquitted because of DNA bungling could be retried. “Yes, it‘s possible,” he said.

Appalling failings of Queensland’s DNA lab were exposed by The Australian’s podcast, Shandee’s Story.

Mr Sofronoff said prosecutors could argue that evidence was not reasonably obtainable at the time of the trial because of the lab’s errors. “The lab is not the prosecution; the lab is not the police,” he said. “So there are arguments both ways and the Court of Appeal will decide.”

Attorney-General Shannon Fentiman said extending double-jeopardy exemptions to rape would bring Queensland into line with other states. “It will also provide a pathway to justice for women and girls who may have been affected by failures in the testing of forensic DNA,” she said.

“If a single miscarriage of justice is averted because of these amendments, they will have been worthwhile.

“I have already begun consultation and I hope to have a bill before the parliament next year.”

The Bar Association of Queensland, which represents the state’s 1300 barristers, backed the review but does not have a formal position on whether exemptions should be expanded.

“At the moment there is no ability at all for courts to reconsider acquittals in relation to sexual offences,” said association president Damien O’Brien KC.

“The Attorney-General is not considering revisiting the person who has stolen a loaf of bread from Coles; we are talking about serious sexual offences. I think the devil will be in the details. Fairness to the accused and the finality of criminal proceedings: that needs to be balanced against the desire to ensure that people who’ve actually committed offences are brought to justice.”