The court room debate on double jeopardy in Australia for the most part centres around common law#. Common law is law that is not ‘written in stone’ such as codified in the Australian Constitution or detailed in state or federal legislation but is law in that it has been declared and confirmed so by judges’ decisions when deciding on appeals in actual criminal or civil cases.
Thus the official reasons for the continuing existence of Autrefois Acquit in both criminal code legislation and its common law extensions beyond the written codification, can be gleaned from the pronouncements of government law officers as well as the published rulings of appellate court decisions . However as it might be fair to say that public debate would have an influence on most legal issues, some judges in their rulings even making reference to published journals, the following defences of the law is a collection of not only judicial statements but comments from government, legal and academic figures.
Efficiency and Integrity
“the protection of citizens from harassment from the state;”1
“Without safeguards, the power to prosecute could readily be used by the executive as an instrument of oppression”2
This is one of the most common arguments presented in defence of the law and yet little is ever said about how a public prosecutor could actually exercise oppression upon an accused, or to the degree that he might be able to, how he could do so without any adverse repercussions, or even how the law on double jeopardy completely remedies the situation.
Firstly it must be remembered that in modern times a public prosecutor may not arbitrarily send someone to trial. He must be able to get a Committal Hearing judge to believe there is sufficient evidence to warrant the cost to the taxpayer of a trial. This is obviously not going to be easy if the accused can simply demonstrate to the court that a previous prosecution with more or less the same evidence has failed. However, to guarantee that repeat committals were free of the possibility of an oppressive motive by either prosecutor or Committal Hearing Judge, the ancient common law practice of the Grand Jury for the rare case of a repeat prosecution would be a viable alternative.
Secondly, there is an action in tort known as ‘Malicious Prosecution’ to be used against anyone, including public prosecutors, who abuse the legal system. In the open society that we now live in, any adverse publicity of a public prosecutor’s ‘hounding’ of an accused who had been acquitted twice, along with the potential for legal action the accused might then have against the prosecutor, would surely deter any ill conceived or improper repeat prosecutions.
It is hard to imagine modern day Australian public prosecutors of such a malevolent nature that they would engage in prosecutions for any motive other than an honestly held belief in the pursuit of justice. However if we are to assume that a public prosecutor might have a vindictive nature and a propensity to abuse his position in wishing to bring innocent people to trial, then one has to ask why he would stop with only the prosecution of one particular crime? For the mere sake of cases being closed, would not ambit prosecutions be also made against the accused, or for that matter anyone in the criminal milieu, who, for any other particular crime, might not be good at summoning a decent defence? The law of double jeopardy is not a protection for those victims of prosecutorial abuse at their first appearance at a committal hearing.
Thus, to prevent abuse by malicious prosecutors, we have a system which, in protecting innocents who would be repeatedly prosecuted, also protects the guilty in the same position yet still fails to protect innocents initially accused.
Surely the most efficient manner to respond to errant prosecutors is to address any improper action specifically rather than limit the powers of good and bad prosecutors alike? For example, legal Internal Affairs bureaux could set up to investigate, on complaints from the public, alleged vengeful or vindictive prosecutors; an automatic inquiry into the modus operandi of the public prosecutor’s office whenever an accused has been tried and acquitted twice.
“…the power and resources of the State as prosecutor are much greater than those of the individual accused ”3
“The accused and the state are not two opponents, equally matched like boxers in a ring…”4
Against the power of the state you must balance the fact that:
The prosecution only proceeds if they believe the accused is guilty while the defence legal team proceeds irrespective of asking that question.
The prosecution must convince beyond a reasonable doubt; the defence has only to lay the seed of a reasonable doubt.
Only the defence has the option to introduce character evidence of the accused.
While the defence always has the option to subpoena any relevant witness, the prosecution is very often denied the right to have in the witness box it’s most important witness, the accused.
The defence, but not the prosecution, has the right to use
pre-trial statements made to the police by relevant witnesses.
The prosecution, but not the defence, can always have their preferred verdict overturned at the judge’s discretion.
The state may have much greater resources for gathering evidence, but about this one thing must be remembered. The state’s investigation is not primarily to find the accused guilty, but rather to find out who committed the crime. If evidence comes to light which exculpates or mitigates the culpability of the accused, then that evidence by law must be forwarded to the accused and the prosecution may well be curtailed. On the other hand if the defence investigation discovers evidence which implicates the accused, he will in all probability not be pleading guilty and definitely will not be forwarding on that evidence to the state.
One cannot deny that because of economic factors amongst other reasons, the best criminal trial lawyers generally tend to gravitate to the higher paid private enterprise defence side rather than the state run and paid prosecution. [albeit only the wealthy, the well connected or cause celebre minorities end up with this class of representation] Compared with famous defence lawyers such as Alan Dersherwitz, Geoffrey Robertson, F. Lee Bailey, Frank Galbally, Johnny Cochran, Melvin Beli, Edward Carson or Clarence Darrow, is it possible to walk into a book store or library and find biographies of famous prosecution lawyers over the last 100 years?
“Finality as a wider social value: …keeping state power in check for the benefit of all who value democracy and personal freedom”5
To run up the flags of democracy and liberty as a defence to not having to answer for one’s alleged crimes does seem to push at the limits of fair and rational argument.
It is a fundamental belief in our society that there are limits to the state’s power. These limits are not that hard to comprehend. Unless we present a clear and present danger to the welfare of our fellow citizens, the state cannot intrude upon our privacy, interfere with our freedom of expression, nor violate other of our basic human rights such as freedom of association, movement, or conscience. However we must be realistic about what do and do not make up our rights. It does seem to be pushing the envelope to declare that liberty for all members of society is protected by the state being limited to ‘one shot’ for criminal prosecutions.
It is true that the state is a very powerful Leviathan whose power must always be under scrutiny. It’s abuses must always be reigned in. However the above defence seems to be presenting the bizarre argument that it is not just the abuses of state power that must be reigned in but state power itself! The fact that the state has the resources and the determination to further investigate and, where necessary present for trial, one already acquitted, is not an example, per se, of abuse.
Why should my personal freedoms be threatened because the powerful state vigourously prosecutes crime? As long as all safeguards for the protection of the reasonable rights of the accused are duly recognized, would not the opposite, in effect, be the case? It would be natural to assume that my personal freedoms are to a small degree being threatened every time the state is derelict in its duty to prosecute those who seem to have shown a propensity to violate these same freedoms.
The probable reason double jeopardy has been receiving current attention by the Australian public is because of the long running saga of the R v Carroll murder and perjury trials. In both instances, decisions of the jury who allegedly represent the people and who historically are there to prevent abuse by those in power, were overturned by appellate judges on no more evidence than what the jury already possessed. It is therefore ironic that democracy should be used as a defence for members of the legal institutional hierarchy to reject (by overturning or refusing a new trial in these two occasions), the will of the people as represented by these twelve men and women drawn randomly from society.
“The stresses caused by the ‘emotional suffering of …others linked with the accused”’6
“Finality and the interests of third parties”7
Whatever the suffering of the accused it seems hard to see how any serious suffering could extend further than to only the accused. Those linked to the victim in any crime suffer because in practically all cases they know a crime actually occurred and that their friend or loved one really has suffered. But to suffer because your loved one is being unjustly prosecuted implies that you know without doubt he is innocent. But how can this be if a committal hearing has ruled for a second time that there is probability of guilt?
There is a difference between wanting your niece or husband to be not guilty of any charge, and simply closing your mind, blindly believing he or she is innocent. Regardless of the accused’s actual innocence, there can be little additional emotional suffering of people who sincerely and rationally believe that the accused is innocent if a committal hearing or Grand Jury was to find probability of guilt.
“Acquitted innocent people might be spending the rest of their days afraid that they may be tried again.”8
“Finality as an antidote to distress and anxiety: those subject to any double jeopardy should not be subjected to the anxiety and distress occasioned by the fear [of another trial]”9
Subjecting a person to a second trial is not, per se, a harm or intentional punishment, even though it may be an unfortunate consequence of the pursuit of justice.
The above might well be a valid argument for all so called victimless crimes such as drug-abuse, where the felon and the victim are the same, but it must be remembered that in most criminal prosecutions there are two opposing parties who both have an interest in the attainment of justice. We cannot pretend that the victim, or loved ones of the victim, just do not exist, or that if they do exist, that they have no concerns about justice being served. If we are to have laws to protect citizens from distress or discomfiture it is only proper that all relevant parties be considered.
Whatever the distress one acquitted of a crime may feel about future prosecution, it can only be a fraction of the combined distress that the victim (if still alive), the loved ones of the victim and members of the community who have developed an interest in the proceedings, would feel about the fact that the felon is still free at large. Further to this; the balance is even more lopsided when we remember that while all of the victims will suffer some degree of grief and frustration when there is an acquittal decision by jury or appellate court, consideration is not needed for all of the accused, but only those who are actually innocent.
The law is instituted amongst us to serve all the people. No one party deserves special consideration above others.
It is interesting to note, in the omission of the concept of ‘the innocent’ in the above rationale of the UK Law Commission, that the retaining of double jeopardy was believed to be justified not only for the sake of the innocent but also for that of the guilty. Bearing in mind that not only have the guilty committed the original crime but compounded their malevolence in a wasting of valuable court resources via an unwarranted and dishonest ‘not guilty’ plea, it is truly hard to see why society should owe them any relief from the distress and anxiety they may have to live through.
“Finality and individual liberty: …[one acquitted is] required to constantly to have in mind the danger of being once more subject to criminal prosecution…”10
For every unsolved crime anyone from all of society can be arrested and presented for trial. This is what we in society accept as the cost for the prosecution of crime.
If the innocent who has been previously acquitted thinks his chances are greater because there is some evidence linking him to the crime, then the fact that his culpability has been sufficiently addressed by all the resources and procedures of a court trial and then discounted, should be enough in most cases to convince him that his chances for another prosecution should be only equal to that of the rest of society.
In the pursuit of justice individual liberty is often impinged: people are forced to do jury duty, forced to give evidence, and sometimes the accused is held on remand even though at that stage there is no proof of guilt. Some of this impingement may fall more heavily on the shoulders of the innocent accused who carry a coincidence of incriminating circumstances than others. However this still does not warrant us shirking our responsibilities in helping, whichever way we can, to aid the investigation of crime.
If a previously acquitted still has reason to fear repeat prosecution, then he should be reminded that there are (or would be) safeguards in place to protect against prosecutorial malpractice or recommittal for trial without very careful deliberation. That is, as has been suggested, Internal Affairs investigations and Grand Jury committal hearings.
No matter what level the restraints on his liberty may appear to be, the previously acquitted’s space to pursue this own visions of the good life would still be superior to those who have suffered from the original crime.
“finality is an important aspect of any system of justice”11
“[abolition of D.J. would lead to] no closure. The best thing is a system with closure.”12
There may be a confusion here in both of the above statements between finality and closure.
Closure is the comfort one gets from the acceptance of an eventual resolution to a problem or challenge that had previously given one frustration or distress. The essential nature of it is that of voluntary acquiescence. It is a contradiction in terms to state that closure can be mandated, or forced upon us by circumstance.
After you read the last chapter of a long novel you find out if the hero succeeds in his endeavour and if he wins the girl. This gives you closure. If alternately you lose the book before the last chapter is read and you cannot get another copy then you reach finality, as there is nothing more to be done, but unfortunately you do not achieve any comfort of closure.
It is ridiculous to believe that the mother of Deirdre Kennedy in the publicised Q v Carroll case, or most of the citizenry who have followed it, have reached any degree of comfort by the mandated finality of the case.
“the sanctity of the jury verdict”13
“finality is an important aspect of any system of justice”14
“the law aims at providing the best and safest solution compatible with human fallibility, and having reached that solution, it closes the book.”15
Apart from the specific reasons why finality is alleged to be a virtue as listed above, there appears to be argument, as per the directly above statements, that finality is a virtue for its own sake.
This proposition invites two responses.
Firstly, the fact of the matter is that finality of bench or jury decision simply does not exist in the criminal justice system. ‘Closing the book’ is patently false. Our law accommodates a very comprehensive and accessible appeals process for those who think they have been unjustifiably convicted of a crime. Verdicts can be overturned if sufficient evidence or argument can be presented. Unless one were to take the hypocritical position that principles can be called upon by one party to a conflict but not the other, there is no current principle of finality per se, or sanctity of jury decision.
The second response would be to ask why finality is, of itself, a virtue. When defending the liberal democratic system of government that Australia enjoys, one simply has to say that it affords Australians inter alia, freedom of speech, democracy and liberty. One does not have to go further and explain why those three concepts are valued. This truth is self evident. They are, in themselves, a good.
It is not that easy however to speak similarly of finality in the criminal justice system as a ‘self evident’ good. One would think that the ultimate goal is always to do right; that no matter how long it takes, justice should always have the opportunity of being served. One common adage associated with the legal system of most countries is: ‘Justice must not only be done, but be seen to be done.’ We are not a nation of Pontius Pilates wishing to wash our hands of any affair that may have already attracted our attention and occupied our court resources for a set period of time.
It is hard to imagine any other field of human endeavour where, subject to availability of resources, finality is given greater accord than integrity of outcome.
“Judicial determinations need to be final, binding and conclusive if the determinations of courts are to retain public confidence. Consequently, the decisions of the courts, unless set aside or quashed, must be accepted as incontrovertibly correct.”16
This rationale seems to be, as is said, putting the cart before the horse.
Public confidence in the courts, or in fact in any institution, is something that can only be earned, and never mandated. One would think that the public will have confidence in the judicial system, if, on appearance, justice seems to be done, however long it takes, rather than being told by higher authorities that justice has been done, despite glaring inconsistencies.
It would seem to be an extremely short sighted attempt to maintain the judicial system’s reputation by merely sweeping possible mistakes under the carpet rather than allowing an open review on any questionable decision.
To apply this ‘don’t question’ rationale to other situations, why not proscribe all investigations into police corruption? As it is important that there is public confidence in the police force, any discoveries of corruption may well destabilise that confidence and should thus be disallowed.
“[double jeopardy]…reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute”17
It may reduce the scope, but not by much. Practically all convictions for serious crimes are appealed against, and successful appeals obviously display conflicting judicial decisions. Also, as confirmed in the Australian High Court case of Helton v Allen,  HCA 20, an acquittal in a criminal case does not prevent a subsequent civil action for damages against the accused regarding exactly the same matter.
Be that as it may, why should it be such a shame that a government body might get it wrong the first time? Mistakes happen. No-one is expected to be perfect. The full semantic of ‘Trial and Error’ should not be diminished in the very system from which such term derives.
Law makers must have sufficient confidence in the good judgement of the general public to believe that they will view the criminal justice system as a whole, and as long as apparently true outcomes are eventually attained, that they will tolerate human foibles and mistakes in the process.
One might think that nothing could more bring the administration of justice into disrepute than for it to be ‘in denial’ by refusing to accept the fact that it may have originally got it wrong. After the various TV documentaries and other media reports which covered the R v Carroll case, it might be reasonable to believe that the public’s respect for the judicial system has diminished because of the double jeopardy law, rather than despite it.
As an ex-Chief Justice of the High Court of Australia has said:
The interests of justice call for correct enforcement of criminal law against those who have committed offences... There is ...the spectre of public disquiet, even outrage, when someone is acquitted of the most serious crime and new evidence, such as a confession, points strongly to guilt. These cases undermine public confidence in the administration of justice – and may do so in a damaging way. §
Efficiency and Integrity
“the prevention of wrongful conviction.”18
The risk that a jury will unjustifiably convict will, theoretically, double if a second trial is allowed.19
Risk of wrongful acquittal also increases with every new trial. Is this a reason to prohibit appeals after conviction when new evidence or an error of law has been shown?
There appears to be an assumption in the legal-academic complex, that the structure of a criminal trial should be such as to engage in every possible procedure to ensure that an innocent person can never be convicted, and that if during such process there are occasional examples of guilty people actually being convicted, then that may be tolerated. Instead, the criminal justice system should be predicated to giving the innocent every opportunity to defend themselves while at the same time vigorously challenging those who appear to be guilty.
The general public already happily accept an institutional bias in the system: that, in the accused’s favour, the standard of proof to convict should be above the normal ‘balance of probabilities’ required in a civil trial and raised to the level of ‘beyond a reasonable doubt’. It must further be remembered that by law a prosecutor must hand over to the defence all evidence it has obtained that may lead to the accused’s innocence, even though the defence is under no such reciprocal obligation. There is a third impediment in a criminal trial for the prosecution in that they are denied the right, enjoyed by the defence, to introduce character references.
These imbalances, to placate the worthy principle that it is better for a criminal to be walking the street than for an innocent person to be falsely convicted, should be enough.
A second trial that may lead to a conviction will not in itself be definitive. Appeals against that trial will still be allowed if reasonable cause can be shown. If we believe our court trials are so haphazard that any result might occur, then we must address the specific wrongs of the system itself rather than ignoring them and treating every result as a possible mistake. For example; more forensic education for jury members, better jury selection.
But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. - Justice Benjamin Cardozo*
“[In addition, the double jeopardy principle] conserves judicial resources and court facilities”20
It is fortunate that argument is not used to prevent appeals against convictions.
It does seem rather a callous approach to say that we would rather save the money than bring criminals to justice. For issues as important as taken felons off the street, resources should follow criminal prosecutions and not vice versa.
“[the prosecution] will think, well, it doesn't matter if we don't have all the evidence now. We'll just prosecute it because if we don't get up first time round, we'll have another crack at it later.”21
One wonders how the police or prosecution would know they were at a stage when they didn’t yet have all the evidence. How would they know there is more evidence incriminating the accused out just there waiting to be gathered?
Even if they knew they could still reprosecute later, no prosecutor is going to start a criminal trial on insufficient evidence. That being for the very simple reason that a prosecutor does not have the arbitrary right to bring a person to trial. That authority is vested with a committal court which will obviously balance the evidence on offer against the costs, annoyance, and inconvenience placed upon anyone being forced to stand trial. Any weak criminal case where the jury acquits after five minutes of deliberation or even on a ‘no case to answer’ basis before the defence presents its arguments, is obviously going to reflect adversely on the criminal court magistrate who let the case proceed. It is hardly going to further the careers of state prosecutors and magistrates to have their names associated with shoddy, resource draining prosecutions that harass innocent people.
“the promotion of efficient investigation”22
“To allow the state to accuse a person of the same thing twice is to encourage sloppy detection and prosecution”23
To ensure competence it seems a very odd form of deterrence or disciplinary action, to declare that someone who has to do a job must succeed the first time. To promote competence from a surgeon do we mandate that only one operation will ever be performed upon the patient?
Wouldn’t a more natural safeguard be that the person who fails should answer for his actions (especially to the one who suffers) and have such failure placed on permanent record? The brief for the job then to be handed to someone else to decide what action needs to be done.
“There is concern that removing double jeopardy will undermine the presumption of innocence, as juries might interpret the fact a retrial has been allowed as evidence of guilt.”24
Of course juries will interpret a retrial as there being the existence of some evidence of guilt. The very nature of any trial is that there must be a prerequisite evidence of guilt! That is the sole reason of a committal hearing; to see if there is sufficient prima facia evidence that the accused may have committed a specific crime, so as to justify a formal trial being held to ascertain a person’s guilt. In a properly regulated judicial system no one should ever be brought to trial unless there was evidence of guilt.
The commonly used phrase “presumption of innocence” is probably a poor assortment of words to portray the intended meaning. The correct but awkward term would probably be “presumption of insufficient guilt”
The direction of the judge to the jury is not to decide if the accused is ‘guilty or innocent’ but ‘guilty or not guilty’, or in other words, guilty or “don’t know for sure”. Innocence has the specific legal meaning of being totally free from any guilt or wrongdoing. Except for the fictional courtroom TV drama Perry Mason, where the guilty party generally turned out to be one of the witnesses or associates of the accused, it is extremely rare for an accused to be actually proven innocent in a court of law.
The expectation of the jury when they enter the courtroom for the first time is to presume that although there is some evidence against the accused, at this stage it is insufficient to lead one to believe he is guilty. It would be hard to believe any one would think someone was guilty beyond a reasonable doubt merely because he was undergoing a second trial.
# In the well discussed case of The Queen v Carroll the Australian High Court only briefly referred to Section 17 of the Queensland Criminal Code:
It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence of which the person is charged or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged.
1 Discussion Paper, Model Criminal Code Officers Committee of the Standing Committee of (Australian States’) Attorneys-General, November 2003, Ch. 2, p.2.
2 Gleeson CJ & Hayne J in The Queen v Carroll  HCA para 23
3 Gleeson CJ & Hayne J in The Queen v Carroll  HCA para 21.
4 The Spectator (UK) 20th May 2000.
5 Discussion Paper, MCCOC of the Standing Committee of (Australian States’) Attorneys-General, November 2003, Ch. 2, p.3.
6 Chris Corns, (2003) 27 Crim Law Journal 80, 86.
7 UK Law Commission (1991) as cited in MCCOC Discussion Paper: Chapter 2, p.3
8 Rob Hulls Victorian A.G. , The Age 17 April 2003
9 UK Law Commission (1991) as cited in MCCOC Discussion Paper: Chapter 2, p.3
10 Discussion Paper, Model Criminal Code Officers Committee of the Standing Committee of (Australian States’) Attorneys-General, November 2003, Ch. 2, p.3.
11Gleeson CJ, Hayne, Gummow & Gaudron JJ in The Queen v Carroll  HCA para 22
12 Jon Tippet QC, ‘Matter of Principle’ The Weekend Australian, 26th April 2003
13 MCCOC Discussion Paper: Chapter 2, p.2
14 Gleeson CJ, Hayne, Gummow & Gaudron JJ in The Queen v Carroll  HCA para 22
15 New Zealand Law Commission quoting Lord Wilberforce, cited in The Australian 11th February 2003.
16 McHugh J in The Queen v Carroll  HCA para 128
17 Gaudron J & Gummow J in The Queen v Carroll  HCA para 86
18 MCCOC Discussion Paper: Chapter 2, p.2
19 Paul Roberts, ‘Double Jeopardy Law Reform: A Criminal Justice Commentary’ (2002) 65 Modern Law Review 398.
20 McHugh J in The Queen v Carroll  HCA para 128
21 Queensland Law Society President Rob Davis speaking on The World Today - 27 January , 2006
22 MCCOC Discussion Paper: Chapter 2, p.2
23 The Spectator (UK) 20th May 2000; Victorian A.G. Rob Hulls, The Age 17 April 2003
24 Andrew Goode, president of the Law Society of SA, The Advertiser (Adelaide), 05-26-2003, pp 018.
§ Sir Anthony Mason, ‘Double jeopardy and the limits of justice’, The Sunday Telegraph, 22 December 2002, p 95
* Snyder v. Massachusetts, 291 U.S. 97, 122 (1933).