Double Jeopardy
Contents
NSW Draft Bill
Recent News
Double Jeopardy as a Fundamental Human and Legal
Right
Double Jeopardy and the Carroll Case
Changes in the UK
Recent International Reports on Double Jeopardy
More Information
Other Articles
A criminal trial is an accusatorial process
in which the power of the State is deployed against an individual
accused of crime. Many of the rules that have been developed for the
conduct of criminal trials therefore reflect two obvious propositions:
that the power and resources of the State as prosecutor are much greater
than those of the individual accused and that the consequences of
conviction are very serious. Blackstone's precept "that it is
better that ten guilty persons escape, than that one innocent suffer"
may find its roots in these considerations.
Many aspects of the rules which are lumped together
under the title "double jeopardy" find their origins
not so much in the considerations we have just mentioned as
in the recognition of two other no less obvious facts. Without
safeguards, the power to prosecute could readily be used by
the executive as an instrument of oppression. Further, finality
is an important aspect of any system of justice.
Chief Justice Gleeson & Justice
Hayne, R
v Carroll
[2002] HCA 55 (5 December 2002) at [21]-[22]
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Recent News
Norfolk Island (March 2004):
The federal government has released an interim report on double jeopardy.
Despite overwhelming opposition, the Model Criminal Code Officers
Committee has recommended modifying the rule aganst double jeopardy. [read
more...]
London (Sunday, 23 November 2003): In
the UK, the controversial Criminal Justice Bill, which among other
things allows Prosecution appeals of acquittals where 'new and compelling'
evidence comes to light, received Royal Assent.[read
more...]
Canberra (Friday, 21 November 2003):
The Attorneys-General of Australia today released a discussion
paper on double jeopardy reform. [read
more...]
Canberra (Wednesday, 10 Sept 2003):
Model Criminal Code Officers' Committee (MCCOC) intends to release
a national discussion paper on double jeopardy reform in mid- to late-October
2003.
Melbourne (Friday, 11 April 2003): Meeting
in Melbourne today, the Standing Committee of Attorneys-General (SCAG)
has referred the issue of double jeopardy 'reform' to the Model Criminal
Code Officers' Committee (MCCOC). The issue was placed on the SCAG
agenda by Queensland. By referring the issue to MCCOC for review,
the Attorneys-General were concerned to develop a national approach
to any changes to the criminal law.
"I welcome the national approach to this issue because it would
be undesirable for acquittals to be treated differently depending
on where the person lived in Australia", the Federal Justice
Minister Senator Ellison said.
MCCOC is a national body of criminal law experts, chaired by Justice
Howie of the NSW Supreme Court.
Read the Federal
Justice Minister's media release.
UNSWCCL will bring you
updates on MCCOC's progress.
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Double Jeopardy as a Fundamental Legal Right
The right not to be tried twice for the same offence is a fundamental
legal and human right recognised in many Bills of Rights and human
rights treaties. Here's a sample of them:
UN International Covenant on Civil and Political Rights, Article
14(7)
No one shall be liable to be tried or punished again for an offence
for which he has already been finally convicted or acquitted in
accordance with the law and penal procedure of each country.
US Constitution, Fifth Amendment
No person shall be...subject for the same offence to be
twice put in jeopardy of life or limb...
Bill of Rights Act 1990 (NZ) Section 26(2)
No one who has been finally acquitted or convicted of, or
pardoned for, an offence shall be tried or punished for it again.
Charter of Fundamental Rights of the European Union (2000) Article
50
No one shall be liable to be tried or punished again in
criminal proceedings for an offence for which he or she has already
been finally acquitted or convicted within the Union in accordance
with the law.
Canadian Charter of Rights and Freedoms (1982) Section 11(h)
Any person charged with an offence has the right...if finally acquitted
of the offence, not to be tried for it again and, if finally found
guilty and punished for the offence, not to be tried or punished
for it again.
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Double Jeopardy and the Carroll Case
Much of the current controversy in Australia surrounding double
jeopardy has been inspired by the case of Raymond John Carroll.
In March 1985 in the Supreme Court of Queensland, Carroll was convicted
by a jury of the murder of the infant Diedre Kennedy in Ipswich in
1973.
In November 1985, on appeal to the Queensland Court of Criminal Appeal,
the conviction was quashed on the grounds that the evidence could
not sustain the verdict. A verdict of acquittal was entered (Carroll
v R (1985) 19 A Crim R 410).
In 2000 Carroll was tried and convicted for perjury at his 1985 trial
(R
v Carroll [2000]
QSC 308 (6 September 2000); (2000) 115 A Crim R 164).
That conviction was quashed on appeal by the Queensland Court of
Appeal in 2001 on the grounds that it violated due process and
the principle
of double jeopardy, that the evidence lacked weight or cogency and
that the verdict was unsafe and unsatisfactory (R
v Carroll; ex parte AG [2001]
QCA 394 (1 September 2001)). It is worth noting that:
- the court found the 'new evidence' relating to the bite marks
on the child's thighs "of doubtful quality" (at [61]);
- the Crown relied heavily on a jailhouse confession (and jailhouse
confessions are notoriously unreliable); and
- there was no DNA evidence mentioned in any of
the perjury decisions.
In 2002 the High Court of Australia found that the charge at the
second trial was an abuse of process and dismissed the appeal (R
v Carroll [2002] HCA 55 (5 December 2002)).
For more information, read His Honour Mr
Justice Michael Kirby's article in the Criminal Law Journal.
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The UK abolishes double jeopardy protection
In November
2003 the UK's Blair government successfully passed a Bill through
Westminister that, among other things, modifies the rule of double
jeopardy. The Crown now has a right to appeal acquittals where 'new
and compelling evidence' comes to light.
The Criminal
Justice Act 2003 (UK)
has been used as the model for most Australian proposals to abandon
the protection the double jeopardy rule.
Read the Criminal
Justice Act 2003 (UK).
Read what the UK
Government's information on the Act.
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What's been said about the UK 'Reforms'...
Read what
Liberty UK has to say about the Bill. (Liberty
UK is CCL's equivalent in the UK)
Read Liberty UK's Briefing
on the Bill for the House of Lords.
For other commentary on the Bill read:
Ben Fitzpatrick, "Double jeopardy: one idea and
two myths from the Criminal Justice Bill" (2003) 67 Criminal
Law Review 149 (abstract;
article not available online)
Ben Fitzpatrick, "Tinkering
or transformation? Proposals and principles in the White Paper,
‘Justice for All’", [2002] 5 Web Journal
of Current Legal Issues
Paul Roberts, "Double
Jeopardy Law Reform: A Criminal Justice Commentary", (2002)
65(3) Modern Law Review 393
Read Recent International
Reports on Double Jeopardy for the English Law Commission's Discussion
Paper and Final Report that inspired this Bill.
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Recent International Reports on Double Jeopardy
New Zealand Law Commission, Acquittal
Following Perversion of the Course of Justice (2001)
(English) Law Commission, Double
Jeopardy and Prosecution Appeals (2001)
(English) Law Commission, Double
Jeopardy and Prosecution Appeals: Summary (2001)
(English) Law Commission, Double
Jeopardy: Discussion Paper (1999)
(English) Law Commission, Double
Jeopardy: Discussion Paper Summary (1999)
More information
Read about reform
proposals in New South Wales.
Read about the Australian
Attorneys-General discussion paper on double jeopardy.
Read what Justice
Roslyn Atkinson of the Queensland Supreme Court has to say about
double jeopardy.
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)
Other Articles
The Hon Justice Michael Kirby AC CMG, "Carroll, double jeopardy
and international human rights law" (2003) 27 Criminal Law
Journal 231. (not available online)
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