A GAME of tug-of-war between the Federal Government and the states over the issue of double jeopardy reform continued last week. While Justice Minister Chris Ellison said the Government would push ahead with reforms, the Standing Committee of Attorneys General (SCAG) recently snubbed radical changes to the legal principle. Adding further furore to the issue, the legal profession guilds are also making their opinions known.
The rule against double jeopardy prevents a person acquitted or convicted of an offence from being tried again for that same offence.
For Chris Ellison, if fresh and compelling evidence became available after the original trial, an exception to the double jeopardy rule should be made. But the states and territories would not agree on this issue, except for NSW and WA. Queensland had originally supported significant reforms but, after the SCAG meeting on Norfolk Island recently, the state reneged on its earlier stand and called for more moderate changes instead.
Victoria, SA, Queensland, the ACT and the NT each favoured a narrower approach to double jeopardy than considered acceptable by the Justice Minister. These states argued that a case should only be reopened after a “tainted acquittal” — that is, if there was evidence of interference with the original trial.
But despite the NSW A-G’s reported support of more radical reforms, the Law Society of that state “supports the retention of the law relating to double jeopardy as it currently applies”.
In response to a request for submissions on the Model Criminal Code Officers’ Committee’s (MCCOC’s) discussion paper, Issue Estoppel, Double Jeopardy and Prosecution Appeals Against Acquittals, Law Society president Gordon Salier stated “the foundations of the double jeopardy principle reiterated in The Queen v Carroll  HCA 55, remain legitimate”.
However, acknowledging various Australian jurisdictions had signalled an intention to change the law to allow certain acquittals to be overturned, the criminal law committee of the Society has made some recommendations for any amendments that are made.
In an interview with Lawyers Weekly, Salier said that despite the fact that NSW was “seeking to adopt basically the UK provisions”, the Society supported the retention of the law in relation to double jeopardy as it currently applied. And, if reforms were introduced, the Society would like them to be “very restricted”.
Whatever happened, Salier said, the states should be consistent. “To date, the states don’t have a great record on being consistent on legislation. But with something like this, because it is changing something that has been enshrined for years, the states should seek to achieve consistency.”
The legal profession in Victoria has also made clear its view. President of the Law Institute of Victoria Chris Dale wrote a letter to Justice Howie in response to the discussion paper released by the MCCOC. Agreeing that it was timely for the double jeopardy rule to be “critically reviewed in order to determine whether or not it should be reformed”, Dale said the Institute welcomed the review.
The LIV highlighted five policies from the discussion paper as the main ones underlying the double jeopardy rule. These included the various interests in securing finality of decisions; the protection of citizens from harassment by the state; the promotion of efficient investigation; the sanctity of a jury verdict; and the prevention of wrongful conviction. “The LIV wishes to highlight the importance of double jeopardy in ensuring the integrity of the criminal justice system,” Dale said.
The reforms were a real concern to the legal profession, Dale told Lawyers Weekly. “We’ve said to leave the double jeopardy rule where it is, but that there may be some cause to look at some of the interference with the administration of justice offences,” Dale said.
The radical reforms the Commonwealth was proposing were a concern, Dale reiterated. “I hear from time to time people calling for revision of the double jeopardy rule because of more sophisticated scientific evidence and the need to reappraise criminal cases,” he said.
But there was a need to ensure the highest standards in the preparation of cases by the police and the prosecution, Dale said. “As soon as you introduce the possibility of retrial, you may compromise those standards.”
Dale said they had “canvassed far and large” amongst the Institute’s criminal lawyers, and tried to garner the views of lawyers in both defence and prosecution work because it was an important principle in criminal justice. As a result, he was confident the expressed view of the LIV was also “the general view of the profession in Victoria”.
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