Double Jeopardy

Adobe PDF file Download the full paper as PDF  294Kb

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.


Briefing Paper No. 16/2003 by Rowena Johns

In February 2003, the Premier of New South Wales, Hon Bob Carr MP, advocated the introduction of new exceptions to the double jeopardy rule, which would allow the prosecution to appeal against a verdict of acquittal on the basis of fresh evidence. This briefing paper outlines the proposals, and provides general guidance on the doctrine of double jeopardy, its benefits and limitations. The influences of recent case law, developments in the United Kingdom, and advances in forensic science, are also explored.

Chapter 2 analyses the concept of double jeopardy, and its meaning at different stages of the criminal justice process. The exceptions to double jeopardy that are already allowed in New South Wales are explained. [Pages 2-6]

Chapter 3 examines the case of R v Carroll [2002] HCA 55; (2003) 194 ALR 1, in which the High Court found that the Crown’s attempt to prosecute an acquitted man on substantially the same facts as his initial trial was an abuse of process. The case typifies the difficulties that can be caused by double jeopardy and, according to some critics, why the law should be changed. [Pages 7-8]

Chapter 4 focuses on the proposal revealed by Premier Carr in February 2003, to enable the Director of Public Prosecutions to apply to the Court of Criminal Appeal for a verdict of acquittal to be quashed and a retrial ordered if fresh evidence emerges and certain other requirements are met. Further legislative amendments would entitle the prosecution to appeal against a judge’s directed verdict of acquittal, and would expand the capacity of the prosecution to appeal against interlocutory rulings to exclude evidence. [Pages 9-10]

Chapter 5 deals with the issues and consequences involved in reducing the scope of double jeopardy. Arguments for and against changing the law are outlined, and the views of a range of commentators, public figures, and interest groups are quoted. [Pages 11-19]

Chapter 6 briefly summarises the status of double jeopardy in Australian jurisdictions other than New South Wales. In April 2003, all States and Territories participated in discussions through the Standing Committee of Attorneys General of Australia. It was resolved that a review of double jeopardy will be undertaken by the Model Criminal Code Officers Committee. [Pages 20-23]

Chapter 7 traces recent developments in the United Kingdom, which have influenced the Carr Government’s proposals. Findings are reproduced from reports published since the late 1990s by the Stephen Lawrence Inquiry, the Law Commission, the Home Affairs Committee of the House of Commons, the Auld Review, and the White Paper on the criminal justice system. These inquiries culminated in legislative amendments to the double jeopardy rule being introduced in late 2002 as part of the Criminal Justice Bill. The House of Lords will continue to debate the Bill when Parliament returns after the summer recess on 8 September 2003. [Pages 24-34]

Chapter 8 gives a progress report on DNA and other techniques that could supply new evidence for particular cases to be retried if the double jeopardy rule was relaxed. Some of the topics covered in this chapter are: the DNA legislation in New South Wales; recent statutory reviews by the Legislative Council’s Standing Committee on Law and Justice, the Attorney General’s Department, and the Ombudsman; the Innocence Panel in New South Wales; recent statistics on DNA testing of suspects and prisoners; the Carr Government’s proposals to expand the powers for DNA testing of repeat offenders; the National DNA database; and biometric methods of identification such as eye scanning, face mapping and digital finger printing. [Pages 35-48]