New ACT Act Introduces Double Jeopardy Exceptions
Thursday 23 June 2016 @ 11.18 a.m. | Crime
The ACT has notified the Supreme Court Amendment Act 2016, which provides some exceptions to the rule of double jeopardy. People acquitted of serious offences may now face retrial in cases where fresh and compelling evidence arises or where a trial has been ‘tainted’. A third exception was introduced to address concerns raised following R v Carroll (2002) 213 CLR 635; [2002] HCA 55, a 2002 High Court case where the rule against double jeopardy prevented the prosecution of an acquitted person for committing perjury during their murder trial.
Introducing the Bill into the Legislative Assembly, Attorney-General Simon Corbell said:
“[C]urrently in the ACT, an acquitted person could publicly state that they had committed the crime for which they had been acquitted and yet the acquittal could not be challenged despite that statement. Similarly, new forensic evidence could come to light which points clearly to the acquitted person as the offender, yet such evidence could not be used to challenge the acquittal and seek a retrial….
The safeguards in the bill ensure it is only in the most serious of cases that exceptions to the rule against double jeopardy would be allowed and only where there is very good reason. I expect the provisions in this bill would be rarely used. Indeed, I hope the circumstances which warrant their use do not arise. But where such circumstances do arise this bill will provide a means of rectifying serious and unacceptable justices and so strengthen the integrity of our criminal justice system.”
Fresh and compelling evidence
Under the Act, evidence will be considered ‘fresh’ if the evidence was not tendered in the original proceeding and “could not, in the course of an exercise of reasonable diligence” have been tendered. ‘Compelling’ evidence needs to be reliable, substantial, and highly probative of the guilt of the acquitted person. Courts must be satisfied that a retrial is in the interests of justice, and the Director of Public Prosecutions must give approval to ACT Policing for the reinvestigation.
‘Tainted’ trials
‘Tainted’ acquittals are defined as those in which the person acquitted of an offence has been convicted of an administration of justice offence that is relevant to the proceeding in which the acquittal happened. In his second reading speech, Mr Corbell said this would include offences “such as perjury, corruption of jurors or witnesses or the destruction of evidence”. For a retrial to occur, it must be “more likely than not that, but for the commission of the administration of justice offence, the acquitted person would have been convicted of the acquittal offence”.
Victim representative says laws too conservative
The ACT’s victims of crime commissioner, John Hinchey, told The Canberra Times the new laws did not go far enough and should be fully retrospective (the laws will only apply retrospectively for ‘tainted’ trials). He said:
“Limiting the fresh and compelling evidence reforms to offences punishable by life [imprisonment] and applying it only prospectively will so limit the reform of double jeopardy as to make it meaningless… As it stands, the system has a far greater tolerance for unfairness to the prosecution, and subsequently, although indirectly, to victims of crime.”
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Sources:
Supreme Court Amendment Act 2016 (ACT), Bill and Second Reading Speech - available from TimeBase's LawOne Service
