Australia and The Queen v Carroll
From 2002 there has been legislative reform in Australia with regards to the law of double jeopardy. South Australian Premier Mike Rann has declared that in 2008 laws will be enacted to enable, in specific situations, a repeat prosecution after an acquittal, thus following the lead of two other states, New South Wales and Queensland. This reform has in all probability come about as a response to the public backlash from the outcomes of the infamous R v Carroll saga of prosecutions and appeals.
In 1985, a Raymond John Carroll was brought to trial, and subsequently found guilty, of the 1973 abduction, sexual assault and murder of seventeen month old baby Deidre Maree Kennedy. Carroll then appealed his conviction to the Queensland Court of Criminal Appeal. Despite what one may hold as the sanctity of a jury decision, the appellate court (none of whom having sat through the original trial and witnessed the evidence given at first hand) decided that the jury, in finding guilt beyond a reasonable doubt, was wrong, and that there was insufficient evidence for a conviction. It not only voided the verdict but unilaterally declared that Carroll was not guilty of the crime12. Due to the law of double jeopardy he then became immune to any further prosecution for the grisly crimes.
Beaten but not bowed, over a decade later the Queensland Public Prosecutions office decided in 1999 to at least prosecute Mr Carroll for perjury in his first trial. This was to be with the aid of newly acquired evidence believed to confirm without doubt the falsehood of his original court denials.
After indictment had been presented but before proceedings began, Carroll’s Legal Aid lawyers appealed that the trial should not go ahead as it violated the law of double jeopardy. As the new crime of perjury had no similarity to the original crime of murder and as the crimes were separated by a period of ten years, one might think the primary judge, a Justice Muir, ruled correctly in declaring there was no substance to the pleas that he was again in jeopardy of prosecution for the same crime.
In the subsequent trial Carroll was again found guilty and yet again the decision of the jury was frustrated by the Queensland Court of Appeals, and, on appeal, by the High Court, holding that the accused should not have been prosecuted for an offence which sought to controvert13 the original acquittal.
To its credit, the High Court of Australia did admit that the perjury prosecution did not violate Queensland’s double jeopardy laws. “…neither par (d) nor (e) of s 598(2) applied and the respondent had no plea in bar available under the Code”14
However, perhaps not to its credit, the alleged justifications that followed delved into that murky area where the High Court, rather than being bound by legal code, exercised an alleged discretion to create new law so as to prevent what it defined as a prosecutorial abuse of process. The alleged abuse of process was that, in having to prove the defendant’s perjury, the prosecution would have to prove an allegation (the defendant was a murderer) that an earlier court held was not necessarily the case.
In the ruling handed down, considerable space was given to arguments presented as justifications for the law of double jeopardy, and in quoting from a case, Rogers v The Queen, "the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct", the implication given was that even though the prosecution had not strictly violated the double jeopardy law, it had violated the principle.
As quoted from the Queensland appellate court,
"if the evidence at the perjury trial was substantially identical with that at the earlier trial, the rule against double jeopardy would be infringed and the prosecution would amount to an abuse of process"15
Where’s the connection?
Of course one needs to ask: how does controverting an earlier decision actually violate the double jeopardy principle?
The principle is not that difficult to encapsulate: One should not be twice in jeopardy of state punishment for the same harmful action. The harmful action was perjury and it was only the first time the accused was prosecuted for that crime. What type of logical deduction short of sophistry can relate the principle to a situation where an appellate court of three judges is embarrassed when it’s decision is disregarded by a later jury? How do we connect an accused again in jeopardy of punishment with that of the legal hierarchy in (alleged) jeopardy of ridicule?
In looking for precedence to allow the discretion to create new Australian law, the HCA favourably quoted the English Appeals Court case of R v Humphrys16. However in the very same case the House of Lords held that the civil law principle of issue estoppel, where an issue or point of fact decided in one trial cannot be revisited or challenged in another trial, definitely does not exist in the criminal law. So that being the case, how do we come to the rationale that revisiting a point of fact in one trial that was decided in an earlier trial, is somehow conflicting with the double jeopardy principle?
The answer might be that both the Queensland and Commonwealth appeals courts simply got confused over the difference between a long held principle and a long used common defence of that principle.
One does not have to search far to find the line: "the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct" being used as an alleged justification for the principles of autrefois acquit and autrefois convict. If, for the sake of argument, we are to grant it the status of a defence that can not be refuted, a genuine justification, then the fact remains that while it may be a justification, there is no reason why it should be elevated to the position of a principle in itself. The argument, such as it is, may have been used as a defence for over 100 years, but it still remains only that; a defence. Repeating a phrase innumerable times is still not enough to make it a principle.
As an analogy, one justification for the principle of freedom of the press is that, as no one can ever be sure of what the ultimate ‘truth’ is, it is always better to allow a new media voice into the market so as to ensure a possible extra point of view on any issue. The justification for the freedom of the press is therefore, amongst other reasons, the advancement of a multiple-media market. However it would be ridiculous to make the reason, a multiple media-market, become a principle in itself. Suppose a media corporation wanted to close, because of falling circulation, its newspaper in a market where there was only one competitor. Should the government prevent the corporation doing so because it would be violating the principle of a multi-media market?
An Abuse of Process?
On reading R v Carroll there is an implication by the Australian High Court judges that the Crown Prosecutor in the perjury trial somehow acted in an underhand way and abused the criminal judicial process: this by bringing a further charge against the defendant which was “…merely a second attempt to secure a conviction.” We are told that what he should have done was simply to accept the appellate court decision handed down after the very first trial and let the accused Carroll walk away from responsibility for any and all crimes.
To comprehend this issue one first must be reminded of the nature of modern sentencing practices. In a normal criminal trial where the defendant is found guilty, the actions and attitude of the felon up until the point of sentencing are taken into account by the court.
Queensland’s Penalties and Sentences Act, 1992 declares in section 9 “In sentencing an offender, a court must have regard to [amongst other factors] —
2(f) the offender’s character,…
2(i) how much assistance the offender gave to law enforcement agencies in the investigation of the offence…
4(i) any remorse or lack of remorse of the offender”
Someone otherwise deserving of 25 years in jail for a serious crime without mitigating circumstances, might perhaps be granted a ten year discount if they had shown remorse and accepted responsibility from the start, pled guilty, and thus saved the community the cost and trauma of a trial.
Looking at this same sentencing practice from the alternative perspective, someone who didn’t accepted responsibility for his crimes might begin by receiving a basic 15 years. This then to be followed by an additional ten years to account for:
his dishonest character as evidenced by his perjury;
his refusal to aid law enforcement agencies in the investigation of the offence;
and finally his lack of remorse.
In the original trial, R J Carroll dared to take the stand to give evidence (something he had the option not to do), swore an oath unto his God, and according to the jury of twelve good men and women true, then looked the members of the jury in their eyes and proceeded to violate that oath by telling all manner of falsehoods.
In a normal criminal trial where the accused’s testimony has been proven by the prosecution to be false and he has subsequently been convicted and sentenced, the prosecution will not bother with a further prosecution for perjury despite the fact it is a separate and distinct crime. This is simply because the felon’s dishonest character was already taken into account in the sentencing stage and the prosecutor thus would not want to engage in what may colloquially be termed ‘double dipping’.
However in the R v Carroll case, the situation was different. The prosecutor brought perjury charges, a procedure rare but not unknown following the loss of a criminal prosecution17, because the defendant would be otherwise free from answering for his crime of violating the sanctity of the court. The prosecutor presumably believed that there should be no circumstances in the judicial system where it is acceptable to lie under oath.
“…perjury must be seen as an offence against the administration of justice. It would be absurd not to do so. The offence of perjury protects interests that lie at the heart of the criminal trial process. The fact that one happens to be the accused in a criminal trial does not and should not confer a licence to lie on oath.” MCCOC Report18
In conclusion, there did not seem to be anything at all underhand or abusive with regards to the conduct of the prosecution. It was his role to prosecute crime where he saw it. Normally a convicted felon does also pay for his intransigence and dishonesty. The Queensland prosecutor saw no reason why a questionable acquittal by an appellate court should also grant immunity for perjury. He had further evidence to prove beyond doubt to a jury that the accused had perjured himself and he presented it.
It is ironic that when the High Court dismissed the appeal and accused the prosecutor of abuse of process, they were in essence sanctioning one unequivocal case of abusing the court process: that of a person lying under oath.
“False evidence strikes at the whole basis of the administration of justice and indeed, it undermines the basis of it. Justice inevitably suffers, whatever be the motive for making of false statements on oath and whatever be the circumstances in which the offence of offences are committed.
The purpose of an appropriate sentence in this class of case is not only to punish the offender, but to deter others and make plain that the commission of this type of offence will normally be visited with serious punishment. General deterrence is the point of importance to be particularly emphasised in this type of case.”
Adadee J, with whom Gleeson CJ (Chief Justice in Carroll case) and Hunt CJ at CL agreed, in R v Bulliman (unreported, CCA, 25 February 1993)19
“Thomas Becket” Encyclopaedia Britannica 2008 Ultimate Reference Suite
Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology, Cambridge University Press, New York, 2006.
Martin Friedland, Double Jeopardy, Clarendon Press, Oxford, 1969.
Double Jeopardy: Blurring the Lines Between State and Federal Crimes, Princeton University Law Journal at http://www.princeton.edu/~lawjourn/Fall97/II1yuhan.html
1 Friedland, Martin ‘Double Jeopardy’ Clarendon Press, Oxford, 1969, p.5
2 Encyclopaedia Britannica, Thomas Becket
3 1487, 3 Hen. VII, c. i.
4 Friedland, Martin ‘Double Jeopardy’ Clarendon Press, Oxford, 1969, p.9
5 1534, 26 Hen. VIII, c. 6(St. of the Realm)
6 New South Wales has now somewhat liberalised the law, and also but to a lesser extent, Queensland.
7 U.S. v. LANZA, 260 U.S. 377 (1922).
8 U.S. v. LANZA, 260 U.S. 377 (1922)., at 382
9 Herbert v. Louisiana, Abbate v. United States, Bartkus v. Illinois, United States v. Wheeler, and Heath v. Alabama
10 474 US 82 at 99.
11Blockburger v. U.S., 284 U.S. 299, 304 (1932)
12 Gleeson CJ & Hayne J, The Queen v Carroll  HCA 55, para.1
13 Even if controverting an earlier court decision was justification to acquit the defendant, it is difficult to see how in this instance the verdict ‘denied’ the earlier decision. Declaring someone innocent is unquestionably controverting another declaration of guilt. This is because guilt and innocence are the specific concrete terms that someone either positively is, or positively is not, responsible for a crime. However as Chief Justice Gleeson in this very case declared: “Seldom, if ever, therefore, can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial.” An acquittal, a ‘not guilty’ verdict, is simply a declaration that there is reasonable doubt. It does not say the accused is innocent. So if a court one day declares that the accused has incriminating evidence against him but not enough to be sure of guilt, and another day declares that, with the addition of new legally permissible evidence, there now is sufficient evidence to be sure of guilt, how can there be any ‘controversy’ or allegations of a contradiction in decisions?
14 Gleeson CJ & Hayne J, The Queen v Carroll  HCA 55, para.18
15 Williams JA,  QCA 394 at .
16 R v Humphrys,  AC 1 at 19-21, 40, 48, 58.
17 R v McDermot,t (1899) 24 VLR 636; R v Humphrys,  AC 1 : Chitwood v United States, 178 F 442 (1910). Also, in the UK in 2000 a man acquitted of murder was later sentenced to six years for perjury on new evidence proving his guilt. http://news.bbc.co.uk/2/hi/uk_news/england/tees/5150346.stm
18 Discussion Paper, Model Criminal Code Officers Committee of the Standing Committee of (Australian States’) Attorneys-General, November 2003, Ch. 2, p.71.
19 As quoted by Justice Shaw in R v Mahoney  NSWCCA 138, para 13.
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