From: B Meagher [mailto:firstname.lastname@example.org]
Sent: Tuesday, 31 May 2011 10:23 AM
Subject: Double Jeopardy
Attached is a copy of the draft of a letter I wrote to the Chief Minister in 2007.
You will no doubt receive a submission from the ACT Bar and I will of course support it.
The paper prepared by the DPP is thorough and very well written and it fairly sets out matters that require consideration.
In my earlier letter I set out a number of considerations that ought be addressed before contemplating any change.
The DPP paper does not deal with such concerns. Further the paper assumes that errors of law are clear-cut. The example given about rejecting an application to declare a witness hostile is not a decision that stands out as one that will necessarily be wrong and seems not to be grossly so. The opinion as to what is the correct answer will be decided by an appeal court which may itself be wrong. Thus care must be taken to make any error one that is manifest (similar words were used in appeals from Commercial Arbitrations).
Further whilst science such as DNA may suggest that the new facts are incontrovertible, there are increasingly cases where errors are made in the treatment of DNA evidence. It must be borne in mind that new science is not itself error free and can be abused.
Whilst again I have been beguiled by the skilful exposition made by the DPP, the consequences of the suggested changes and their impact on the Human Rights of the citizen have confirmed my earlier submission that the changes should be resisted.
Bryan Meagher SC