Double Jeopardy in NSW
NSW abolishes double jeopardy
On 17 October 2006, the
NSW Parliament passed long-anticipated legislation abolishing
the rule against double jeopardy
in cases where:
- someone acquitted of a ‘life sentence offence’ (murder,
violent gang rapes, large commercial supply or production of
illegal drugs) where there is ‘fresh and compelling’ evidence
of guilt;
- someone acquitted of a ‘15 years or more sentence
offence’ where the acquittal was tainted (by perjury, bribery
or perversion of the course of justice); and,
- someone acquitted in a judge-only trial or where a judge
directed the jury to acquit.
The federal government is pushing hard for similar ‘reform’ throughout
Australia.
One positive side-effect of these changes in NSW is that the DNA
Review Panel is to be reinstated. Prisoners who believe that re-examination
of evidence using DNA technology will exonerate them can apply.
The NSW legislation has been passed by Parliament, but is yet to
be proclaimed law by the Governor:
information current as at: October 2006
Historical information...
The Criminal
Appeal Amendment (Double Jeopardy) Bill 2003 was the initiative
of the Carr government. The Bill has never been presented to the
NSW Parliament. Mr Carr agreed to wait for the report of the Model
Criminal Code Officers
Committee (MCCOC), a national body that offers advice on criminal
law to the Attorneys-General of all the States, Territories and the
Commonwealth. To date the MCCOC has not issued its final report on
double jeopardy. Consequently, the protection afforded by the rule
against double jeopardy remains and everyone in NSW is free from
being prosecuted
twice for the same offence.
On 27 July 2005, Mr Carr resigned as NSW Premier.
CCL will continue to monitor the situation,
but hopes that the new Premier will not pursue this issue.
information posted: 9
October 2005
NSW releases advice on Double Jeopardy
Bill
Sydney (Wednesday, November 2004): The
NSW government has
released an independent
report on its
controversial double jeopardy Bill (see below).
The report was released after government politicians
complained that they had not read the report.
The advice was written by Acting Justice Jane Mathews in November
2003. Her Honour was asked only to comment on the safeguards in
the Bill, not on the merit of the proposals as a whole.
In summary,
Justice Mathews recommended:
- waiting for the Model
Criminal Code Officers' Committee's final
report on double jeopardy before legislating in NSW
- manslaughter be removed from the definition of 'very serious
offence'
- the onus fall on the DPP to prove that a retrial is likely to
be fair
- a total prohibition of media reporting on investigations, applications
and prosecutions of retrials
- police only be allowed to re-open investigations after receiving
authority from an independent body
- an acquitted person be given automatic access to free legal representation
- prosecution appeals of acquittals be by leave of the court, not
as of right
More controversially, her Honour also recommended that:
- perjury be an offence that can lead to a retrial
- the DPP is the appropriate independent body to authorise police
investigations (despite the fact that the DPP argued against this)
- the retrospective operation of the proposed legislation remain
Read Justice Mathew's report entitled "Advice
to the Attorney-General: safeguards in relation to proposed double
jeopardy legislation".
Carr government releases Double Jeopardy Bill
Sydney (Wednesday, 3 September 2003): NSW Premier Bob Carr has released
a Consultation Draft Bill Criminal
Appeal Amendment (Double Jeopardy) Bill 2003
(NSW). The main "reforms" suggested in the Draft
Bill closely follow the UK
proposals (which have still not been passed by the House of
Lords):
- Crown appeal of acquittals for murder, manslaughter & offences
attracting life imprisonment where "fresh and compelling"
evidence is now available
- Crown appeal of tainted acquittals
- Crown appeal of directed acquittals at jury trials
- Crown appeal of acquittals at judge-only trials
Read UNSWCCL's
submission and comments on the Bill.
What YOU can do
The NSW Attorney-General has called
for submissions on the Draft Bill. The deadline is 10 October
2003. Acting Justice Mathews has delivered her report
to the Attorney General.
If you want to help protect double jeopardy, you should
write or talk to your local
member of state parliament to register your opinions.
Other information
Read what the NSW Public Defender has
to say about double
jeopardy and its tragic demise in NSW.
Read what
Liberty UK has to say about the UK Bill. (Liberty
UK is CCL's equivalent in the UK)
Read what Justice
Roslyn Atkinson of the Queensland Supreme Court has to say about
double jeopardy.
Read the NSW Parliamentary briefing
paper about double jeopardy for an insight into the Carr government's
plans to abolish double jeopardy in NSW (courtesy
of NSW Parliamentary Library Research Service).
[HTML
version]
Click
here to read what's happening nationally
Click
here for more general information about double jeopardy
|
