In recent times this principle has come under attack from certain sections of the media. Politicians, eager to be seen as ‘tough on crime’, have become more willing to undermine fundamental precepts of the criminal law, including the double jeopardy rule.
In November 2011, the Victorian Parliament followed the lead of other jurisdictions, passing the Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic).
The law is based on model legislation approved by the Council of Australian Government (‘COAG’) in 2007, and will apply to past acquittals as well as future acquittals. NSW, Queensland, Tasmania and SA have already legislated to modify double jeopardy law to allow retrials in some cases, as have England and New Zealand.
The reforms introduced by the amending Act allow a new trial to be ordered where there is compelling new evidence that a person previously acquitted of a serious crime was in fact guilty.
The new law will apply in cases such as where there is fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given false evidence.
The reforms will allow the Director of Public Prosecutions (‘DPP’) to apply to the Court of Appeal for a new trial in three carefully defined situations. In making its decision, the Court of Appeal will be required to have regard to the length of time since the offence allegedly occurred, whether the police or prosecution had failed to act with reasonable diligence, and any other matter the court considers relevant.
The Act contains some limited procedural safeguards to protect against any possibility of misuse, including only permitting the DPP to make one application for a retrial in relation to any particular acquittal, and requiring police to obtain written authorisation from the DPP before they can question, search or carry out surveillance on a person for an offence of which the person has previously been acquitted (unless there is an urgent need to preserve evidence).
Some lawyers and civil libertarians have criticised the amendments. Responding to the introduction of the new laws, Liberty Victoria president Professor Spencer Zifcak said,
‘The foundation for the rule is that we ought not to arrive at a situation where the government, which has significantly greater power than the individual, ought to be able to prosecute and re-prosecute and re-prosecute and thereby oppress an individual in relation to criminal proceedings.’
Announcing the measures, Attorney-General Robert Clark noted, ‘For too long, the law of double jeopardy has meant that some offenders have literally been able to get away with murder because of missing or perjured evidence. This reform will bring those days to an end and allow justice to be upheld.’
JAMES FARRELL is a lecturer at the Deakin University School of Law.