Double jeopardy

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In contrast to other common law nations, Australian double jeopardy law has been held to extend to the prevention of prosecution for perjury following a previous acquittal where a finding of perjury would controvert the previous acquittal. This was confirmed in the case of R v Carroll, where the police found new evidence convincingly disproving Carroll's sworn alibi two decades after he had been acquitted of murder charges in the death of Ipswich child Deidre Kennedy, and successfully prosecuted him for perjury. Public outcry following the overturning of his conviction (for perjury) by the High Court has led to widespread calls for reform of the law along the lines of the UK legislation.

In December 2006, New South Wales Premier Morris Iemma introduced legislation to scrap substantial parts of the double jeopardy law in that state. Retrials of serious cases with a minimum sentence of twenty years or more are now possible, even when the original trial preceded the 2006 reform.[4] On 17 October 2006, the NSW Parliament passed legislation abolishing the rule against double jeopardy in cases where:

  • someone acquitted of a "life sentence offence" (murder, violent gang rapes, large commercial supply or production of illegal drugs) where there is "fresh and compelling" evidence of guilt;
  • someone acquitted of a "15 years or more sentence offence" where the acquittal was tainted (by perjury, bribery or perversion of the course of justice); and,
  • someone acquitted in a judge-only trial or where a judge directed the jury to acquit.[5] This largely grew out of the case of Raymond John Carroll.[6]

South Australia currently is also in the process of reforming its laws which will see the principle of double jeopardy abolished for serious indictable offences.

On 18 October 2007, Queensland modified its double jeopardy laws to allow a retrial where fresh and compelling evidence becomes available after an acquittal for murder or a 'tainted acquittal' for a crime carrying a 25-year or more sentence. A 'tainted acquittal' requires a conviction for an administration of justice offence, such as perjury, that led to the original acquittal. Unlike reforms in the United Kingdom and New South Wales, this law does not have a retrospective effect, making its introduction less than fully appreciated by those who, over the years, have been advocating reform.

According to the University of New South Wales, the federal government is pushing hard for ‘reform’ of double jeopardy throughout Australia.[5]

Canada

The Canadian Charter of Rights and Freedoms includes provisions such as section 11(h) prohibiting double jeopardy. But often this prohibition applies only after the trial is finally concluded. Canadian law allows the prosecution to appeal from an acquittal. If the acquittal is thrown out, the new trial is not considered to be double jeopardy because the first trial and its judgment would have been annulled. In rare circumstances, a court of appeal might also substitute a conviction for an acquittal. This is not considered to be double jeopardy either - in this case the appeal and subsequent conviction are deemed to be a continuation of the original trial.

For an appeal from an acquittal to be successful, the Supreme Court of Canada requires that the Crown show an error in law was made during the trial and that the error contributed to the verdict. It has been suggested that this test is unfairly beneficial to the prosecution. For instance, Martin L Friedland, in his book My Life in Crime and Other Academic Adventures, contends that the rule should be changed so that a retrial is granted only when the error is shown to be responsible for the verdict, not just one of many factors.

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