DOUBLE JEOPARDY

1
DOUBLE JEOPARDY

• Caitlin Comensoli

2
The Issue

• Double Jeopardy is the long standing legal
  principal that no person should be tried or
  punished twice for the same offence.
• It has been part of Common Law for over eight
  centuries
• In recent years there has been fierce debate over
  whether double jeopardy is a timeless principal
  or if it is a weakness in our justice system
  allowing the guilty to walk free

3
History

• 2005 Blair government ends Double Jeopardy in the
  UK following the case of Stephen Lawrence.
  Reignites debate within Australia
• Stephen Lawrence was stabbed. Three youths were
  charged, but due to insufficient evidence found
  not guilty and acquitted. It was revealed that
  the original investigation was rife with lost
  opportunities and omissions. Due to double
  jeopardy the three youths could not stand trial
  again

4

• 2000 Outcry over the R vs Carroll case
• Carroll was charged for the abduction, sexual
  assault and murder of Deirdre Kennedy and found
  guilty. Queensland Court of Criminal Appeal
  overturned this ruling due to insubstantial
  evidence. In 1999 new evidence found supporting
  his guilt. Police charged Carroll with perjury,
  but after being found guilty Carroll appealed the
  verdict and was acquitted based on the principal
  of Double Jeopardy
• Call for Double Jeopardy to end

5
Reforms undertaken to address the issue

• In 2006 NSW ends Double Jeopardy
• NSW Crimes (Appeal and Review) Amendment (Double
  Jeopardy) Act 2006 No 69
• In 2007 QLD ends Double Jeopardy
• QLD Criminal Code (Double Jeopardy ) Amendment
  Act 2007
• In 2008 SA ends Double Jeopardy
• SA Criminal Law Consolidation (Double Jeopardy)
  Amendment Act 2008
• Within these three states retrial is now
  permitted for life sentence offences if there is
  new and compelling evidence or if it proven
  there was an administration of justice offence

6

• New and Compelling evidence
• Evidence is fresh if
• (a) it was not adduced in the proceedings
  in which the person was acquitted, and
• (b) it could not have been adduced in
  those proceedings with the exercise of
  reasonable diligence.
• Evidence is compelling if
• (a) it is reliable, and
• (b) it is substantial, and
• (c) in the context of the issues in dispute
  in the proceedings in which the person was
  acquitted, it is highly probative of the
  case against the acquitted person.

• Administration of the course of justice offence
• Administration of justice offence means any of
  the following offences
• (a) bribery of, or interference with, a
  juror, witness or judicial officer,
• (b) perversion of (or conspiracy to pervert)
  the course of justice,
• (c) perjury.

7

• INDIVIDUAL
• Vs.
• SOCIETY

8
Society

• Guilty criminals go free
• Double Jeopardy Reform Australia argue
• victims should have the same right to appeal as
  defendant
• new evidence should be accounted for
• Unfair if criminal get acquittal through perjury
  or bribing
• The Chief Justice in Queensland
• Where recent DNA evidence puts guilt beyond not
  only reasonable doubt, but any shadow of doubt it
  seems just to retry the accused

9
Individual

• Loss of protection from the power of the state
• Leads to the persecution of the innocent
• Works against, not for justice

10
Individual vs Society
INDIVIDUAL
Protection of the individual is paramount
11
Problems with Effectiveness

• University of NSW Council for Civil Liberty
• Increased risk of convicting the innocent
• The more you face trial higher chance of being
  pronounced guilty.
• State has unlimited resources inequality, state
  has resources to prove guilt,the individual has
  none to prove innocence
• Re-trial works on presumption of guilt

12

• Justice McHugh
• interference with the Rule leaves open a real
  risk that media outrage following acquittals will
  lead to retributive second prosecutions.?
• Result in trial by media

13

• Risk of presumption of guilt
• Serious inequalities between state and individual
• Threat of trial by media

A loss in the attainability of justice An
ineffective legal system

Limited effectiveness for society should NOT be
at the cost of innocent individuals liberty
14
Problems with Efficiency

• Loss of finality
• it can never be assumed that justice has been
  reached.
• Every case can be re-opened, no case ever ends.
• Law is retrospective increase in litigation

15

• Queensland Law Society President, Rob Davis
• May encourage substandard policing
• Laziness amongst investigators will occur as
  aware they can apply for re-trial
• Increase in litigation
• Increase in Court Cases
• summary hearings to decide if evidence is new
  and compelling or if an administration of
  justice offence has occurred.
• Full trials also may occur
• Results in more time and money for individual and
  society

16

• Society gains incrementally
• Individuals risk liberty and wellbeing
• More time, more money.
• The legal system is both inefficient and
  ineffective in achieving justice for society and
  most certainly in achieving justice for the
  individual.