Questioning Double Jeopardy

Double jeopardy, a legal anachronism in twenty-first century Australia?

in a nutshell
technicalities of double jeopardy
the human element
questions to ask a double jeopardy defender
was the movie correct?
abolish retro or pro?
recommittal without prejudice
is double jeopardy a fundamental human right?
St Thomas Becket
R v Carroll saga

The Australian* on Double Jeopardy

It makes no sense to me that if someone gets off a particular case and then fresh evidence becomes available, DNA or otherwise, that they should ... literally get away with murder.    S.A. Premier Mike Rann

I’m very much in favour of changing things that don’t work and this rule doesn’t work...
...the demented, dogmatic adherence to something because it's been around for a long time...    
then Prime Minister John Howard

People argued about the medieval right not to be tried twice, as though fraudulently getting off was some sort of game...                                                                                 then UK Home Secretary David Blunkett

The common law says wrong guilty verdicts can be wrong, but wrong not guilty verdicts cannot be wrong.                                                            Evan Whitton, author of The Cartel: Lawyers and their Nine Magic Tricks


In a nutshell

Double jeopardy is one of those “get off on a technicality” laws that prevents a repeat prosecution for someone acquitted in a criminal trial by either the jury, the judge or appeal court judges.

It has come to prominence and, depending on the viewpoint, a certain level of notoriety in modern times due to the combination of the increasing crime solving abilities of modern forensic science, with that of the (primarily commercial) media responding to a public demand for more exposure on law and order issues.

The two main alleged justifications for this law are, in few words,  that:

  1. There must be a protection against prosecutors who might, spitefully and maliciously, abuse their authority and repeatedly bring to trial someone via whom they were humiliated at the first trial by not being able to convict.
  2. An important aspect of the legal process is that, for reasons of respect for the judicial process and to give participants “closure”, there must be adopted the principle of finality and absoluteness to court decisions.

Criticism of these arguments have been that:

  1. Prosecutors in fact don’t have the arbitrary power to make a suspect stand trial. This at present in Australia can only be authorised by an independent Committal Hearing Magistrate. If the law on double jeopardy were to change then the traditional indicting system of the Grand Jury (as still practiced in some American states) could be utilised to allow an even more independent method to decide if one were to again stand trial.
  2. A principle is only a principle when applied to all relevant situations.  Finality, in point of fact, just does not exist. Every guilty verdict is subject to an appeal. Rape, robbery and assault victims can never be sure they will not be called again to give evidence at a new trial. The loved ones of a murder victim have no reason to feel confidant that when the perpetuator is given life he or she will serve a significant part of that sentence. 

The result of this has been that many in the community have been asking how we can  just settle for a situation where our criminal justice system allows those, of whom there is good reason to suspect criminal behaviour, to walk freely amongst us.

“…there are cases where the certainty of justice prevails over the possibility of truth ... and these are cases where the law insists on finality."        
                             Lord Wilberforce in The Ampthill Peerage     [1977] AC 547 at 569.

Technicalities of Double Jeopardy

Double jeopardy, legally know as Autrefois Acquit (previously acquitted) or Autrefois Convict, is the ancient common law legal principle that no person can be tried for the same alleged crime twice. 
Even though it does allow repeat prosecutions for two distinct actions that occurred in the same situation, for example robbery and murder, it did not allow (at least in Commonwealth Common Law countries) in essence the same conduct, such as causing the death of a person, to be prosecuted consecutively as dissimilar crimes such as murder, manslaughter or denial of civil rights.
It prevented a repeat prosecution after someone had been found not guilty, or even after someone had been found guilty if the subsequent prosecution were to be for a more serious charge than the original. Ie A person found guilty of petty theft could not then be charged with grand larceny if it relates to the same object stolen.
Also, for an accused to call upon this law, he had to be at least first convicted/acquitted by a jury or acquitted by a court (appellate or original jurisdiction) rather than just a court case coming to an end. An accused is considered to have been acquitted if the jury declares a ‘not guilty’ verdict; if during the trial, the judge should declare the accused has ‘no case to answer’ and direct the jury to bring in a verdict of not guilty; or if after a guilty verdict has been brought in, an appellate court should overrule the verdict and acquit the accused. Double jeopardy was and is not available merely where a jury cannot arrive at a verdict or where adverse circumstances, such as the death of the judge, might warrant the cessation of the trial.
The law is absolute and there were no exceptions to the above. If it was reasonable to believe that the accused in a criminal trial was acquitted because he committed perjury; suborned perjury; threatened a witness; bribed members of the jury; arranged to have family members of the judge held hostage for the duration of the court proceedings#, then this would still have no effect upon the legitimacy of his acquittal.

Once acquitted, a person could never be retried despite:

  • Evidence
    • New compelling evidence such as DNA
    • Admission of guilt by the accused
  • Error of Law
    • Judges giving an incorrect or improper summation to the jury
    • Judges incorrectly denying the admission of evidence
  • Corruption of Process
    • Jury tampering
    • Threatening or bribing of witnesses
“...double jeopardy unequivocally prohibits a second trial following an acquittal, [as the] public interest in the finality of criminal judgements is so strong that an acquitted defendant may not be tried even though the acquittal was based on an egregiously erroneous foundation...”∞

Current Australian Law as of 2012
In July 2006 the Council of Australian Governments (COAG) agreed that reform of the rule against double jeopardy was an important criminal law policy reform that merited nationally consistent treatment. Through recommendations made by the so called Model Criminal Code Officers Committee (MCCOC) they created a model for reform, knows as the Model Agreed by COAG, to be a template for reform for all Australian states. As of May 2012 all Australian states have now instituted reforms which have been, even though not exactly similar, closely following the recommended model.
Judging by the total lack of prosecutions, let alone convictions, since 2006, it is a point of debate as to whether these changes to the law regarding criminal appeals are meaningful or nothing more than cosmetic reforms on paper, while in substance allowing a possible token re-prosecution of a suspected felon nothing more than once every decade.

With minor exceptions, the new laws of all the states allow a repeat prosecution where a false acquittal is believed to have occurred, unless:

  1. The false acquittal is due to the judge mistakenly denying valid evidence.
  2. The false acquittal is due to the judge giving incorrect directions to the jury.
  3. The false acquittal is due to jury tampering (bribery or threatening harm) and although evidence of such is compelling, there has been no conviction for said crimes (due to possible death or disappearance of accomplice).
  4. The false acquittal is due to witness tampering (bribery or threatening harm) and although evidence of such is compelling, there has been no conviction for said crimes.
  5. The evidence to be presented by the DPP is not new even though it has never been presented to a jury.
  6. There is fresh and compelling evidence of guilt of the original crime but a repeat trial has already been allowed.
  7. There is fresh and compelling evidence of guilt of the original crime but the police or prosecution have not acted with due diligence in applying.
  8. There is fresh and compelling evidence of guilt of the original crime but there has been a substantial (not defined) length of time since the original alleged offence. 
  9. Someone has been convicted of an administration of justice offence (perjury, intimidation, etc) which is believed to have led to a tainted acquittal at the original trial, but a repeat trial on fresh and compelling evidence has already been allowed.
  10. The crime the suspect is charged with is not more serious than rape, aggravated burglary or armed robbery where torture, serious injury to the victim or serious threats of harm did not occur.
  11. Where the original acquittal was tainted due to an administration of justice offence, the penalty of the original crime is less than 15 years incarceration.
  12. The court declares that “in all the circumstances it is [not] in the interests of justice”.
  13. The original crime occurred before the date of enactment of the new law (Queensland).

Ω ABC News 7th August 2007
  Queensland Press Forum Luncheon,  9th April 2003
   cited inJustice at last: killer pleads guilty in Britain's first double jeopardy trial’, The Guardian, 12th Sep 2006
   ‘21 reasons you won't get justice from the adversarial court system’ 7th April 2003,

# Normally double jeopardy would not prevent prosecutions for the aforementioned separate and distinct crimes committed by the accused in his attempt to evade a possible more serious conviction, but with the High Court decision of R v Carroll this is in doubt with the crime of perjury.

* The inclusion of the above cartoon is not to be interpreted that either Peter Nicholson ( or the  newspaper The Australian necessarily endorse all the criticisms or suggestions for reform of the law known as double jeopardy as mentioned on this site.

Rodrigues v. Hawaii, 469 U.S. 1078, at 1079 (1984)


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