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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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CRIMINAL LAW CONSOLIDATION (DOUBLE JEOPARDY) AMENDMENT BILL

Second Reading

Second reading.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (16:10): I move:

That this bill be now read a second time.

Double jeopardy law reform has gained recent prominence owing to public disquiet about a few controversial cases and, in particular, the High Court decision in Carroll. Carroll was convicted of the murder of Deidre Kennedy in a Queensland court in 1985, but was later acquitted on appeal on the basis that there was no evidence on which he could properly be convicted. In 2000, he was convicted of perjury based on his denial of the murder charge on oath at his initial trial, but later was acquitted of this charge by the Court of Appeal. The High Court upheld this decision, holding that trying Carroll for perjury triggered the double jeopardy rule. The Carroll decision was uncontroversial in a legal sense, being a mere rationalisation of previous authority. However, along with a handful of other cases, it has subjected the basic principles underlying the double jeopardy rule to vigorous scrutiny.

The Carroll decision prompted a call for review of the law of double jeopardy from various sources: legal, journalistic and governmental. By the end of 2003, the governments of New South Wales and Queensland had backed reform, as had the Prime Minister. Although the Standing Committee of Attorneys-General was unable to reach a consensus on the subject, the issues were the subject of very similar recommendations by the Model Criminal Code Officers Committee and a Senior Officials Working Group of the Council of Australian Governments.

The COAG working group report was placed before COAG at its meeting on 13 April 2007. COAG agreed that jurisdictions will carry out the recommendations of the Double Jeopardy Law Reform COAG Working Group on double jeopardy law reform, prosecution appeals against acquittal, and prosecution appeals against sentence, noting that the scope of reforms will vary among jurisdictions, reflecting differences in the particular structure of each jurisdiction's criminal law. Victoria and the Australian Capital Territory reserved their positions on the recommendations. In general, the proposal is that the law be reformed so that a person acquitted of an offence would not be protected by the law against double jeopardy from:

prosecution for an administration of justice offence where that offence is connected to the original trial (such as perjury or bribery of a juror);

retrial of the original offence or prosecution for a similar offence, whether it is fresh and compelling evidence, in cases of very serious offences, including murder, manslaughter, serious drug offences (where life imprisonment applies), and the most aggravated forms of rape and armed robbery; or

retrial of the original offence or prosecution for a similar offence where the acquittal is tainted in cases of offences punishable by imprisonment for at least 15 years.

The bill also proposes changes in the law on appeals from acquittals and appeal on matters of sentence. The bill proposes the implementation without change of the recommendation of the COAG working group report.

I seek leave to have the balance of the second reading explanation incorporated in Hansard without my reading it.

Leave granted.

General Principles of Double Jeopardy

A general proposition of the double-jeopardy principle, often quoted, is that stated by Black J. in Green v United States 355 US 184 at 187 & 188 (1957):

The underlying idea, one that is deeply ingrained in at least the Anglo American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

The separate policies that lie behind these general propositions appear to be:

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.

These interests overlap to some extent.

The principle against double-jeopardy has international recognition. Article 14(7) of the International Covenant on Civil and Political Rights says:

No one shall be liable to be tried and punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

It may be noted, however, that this command leaves a great deal to interpretation. In particular, the insertion of the word 'finally' means that the principle cannot be taken to prohibit, for example, prosecution appeals against acquittals—for to enact such a law would simply mean that the acquittal was not final. The same holds true for double-jeopardy reform—for all that does, it can be argued, is redefine 'finally'. As will be seen from the discussion below, that is precisely the course that has been espoused, officially, in the United Kingdom.

It is quite clear that the double-jeopardy principle is not absolute. For example, a person who successfully appeals against conviction will usually face a retrial for the same offence. The only real question is how far the exceptions should go.

Other Jurisdictions

Reforms allowing for a tainted acquittal exception were introduced in the United Kingdom by the Criminal Procedure and Investigations Act 1996. Reforms allowing for a 'new and compelling evidence' exception were introduced more recently by the Criminal Justice Act 2003. The new and compelling evidence exception was recommended in the Law Commission's 2001 report, Double Jeopardy and Prosecution Appeals. General support was expressed for the Commission's proposals, and further recommendations were made, by Lord Justice Auld in his 2001 report, Review of the Criminal Courts of England and Wales, which, in turn, was built on in the United Kingdom Government's 2002 White Paper, Justice for All.

On 19 September, 2006, the Premier of New South Wales, the Hon. Morris Iemma MP, introduced his government's double-jeopardy law reform proposal into the New South Wales Parliament, in the form of the Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2006. The bill was passed on 17 October, 2006 and received assent on 19 October, 2006. The New South Wales Act is largely in line with the MCCOC recommendations, although it differs in some respects. The key differences are:

while the New South Wales Act provides for fresh and compelling evidence and tainted acquittal exceptions to the rule against double-jeopardy, it does not provide for an exception to allow prosecution for an administration-of-justice offence connected to the original trial; and

the fresh and compelling evidence exception applies to a more limited class of offences (for example, manslaughter is not included) than that recommended by MCCOC.

Double-jeopardy reforms providing for both new and compelling evidence and tainted acquittal exceptions are contained in the Criminal Procedure Bill, introduced in 2004 and currently still before the New Zealand Parliament. On 19 April, 2007, Mr Peter Wellington MP. introduced the Criminal Code (Double Jeopardy) Amendment Bill 2007 as a Private Member's Bill into the Queensland Parliament. The Bill provides two exceptions to double jeopardy principles - a fresh and compelling evidence exception, which is to apply only to a retrial for murder, and a tainted acquittal exception, which is to apply to offences attracting a maximum penalty of imprisonment of 25 years or more. Neither of the reforms will operate retrospectively. The Queensland Government supported the Bill and it passed in October 2007.

This Bill proposes three exceptions to the general rule against double-jeopardy.

Proposed Exception 1—Fresh and Compelling Evidence

This exception will allow for retrial of an acquitted person (or prosecution for a similar offence) where there appears to be fresh and compelling evidence against the acquitted person. This exception will apply to acquittals for only the most serious categories of offences, including murder, manslaughter, the trafficking or manufacture of large commercial quantities of drugs, and the most aggravated forms of rape and armed robbery. The reason for the restriction is that the public interest in not prosecuting again is strong and not lightly displaced, but where there are very serious offences involved, the public interest cries out for re-charging. The full resources of the State should not be expended again and the acquitted put at risk of conviction again by challenging the acquittal of a person for, say, theft, criminal damage or forgery offences.

Evidence is 'fresh' if it was not adduced in the proceedings in which the person was acquitted and it could not have been adduced in those proceedings with the exercise of reasonable diligence.

Evidence is 'compelling' if it is reliable, substantial, and highly probative of the case against the acquitted person (in the context of the issues in dispute in the original proceedings).

Evidence is not precluded from being fresh and compelling merely because it would have been inadmissible in the earlier proceedings against an acquitted person.

Proposed Exception 2—Tainted Acquittals

This exception will allow for retrial of an acquitted person (or prosecution for a similar offence) where the acquittal is tainted. An acquittal is 'tainted' if (a) the accused person or another person has been convicted (in this jurisdiction or elsewhere) of an administration of justice offence in connection with the proceedings in which the accused person was acquitted; and (b) it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been convicted of the substantive offence. This exception will apply to acquittals for serious offences, being major indictable offences punishable by 15 years or more. Interference in a trial brings the administration of justice into disrepute and offenders must not be able to profit from it. It is therefore appropriate that this exception applies to a broader range of offences than the 'fresh and compelling evidence' exception. Administration-of-justice offences include perjury, bribing or interfering with a juror, witness or judicial officer, and perversion of (or conspiracy or attempt to pervert) the course of justice.

The tainted acquittal exception will apply whether the administration-of-justice offence was committed by the acquitted person or by another person. This is in line with the MCCOC recommendations, the New South Wales Act and United Kingdom law. This will operate as a disincentive to associates of an accused contemplating the commission of an administration of justice offence (for example, situations of organised crime or the family or friends of an accused interfering with a trial).

Proposed Exception 3—Administration-of-Justice Offences

This exception will allow for prosecution for an administration of justice offence where that offence is connected to the original trial. It will apply if there is fresh evidence of the commission of an administration-of-justice offence by an acquitted person in connection with the proceedings in which the person was acquitted. An administration-of-justice offence includes: (a) bribery of, or interference with, a juror, witness or judicial officer; and (b) perversion of (or conspiracy to pervert) the course of justice; and (c) perjury. In circumstances which would allow a prosecution for an administration-of-justice offence (where double jeopardy would otherwise have been an impediment to prosecution) or an application for retrial under these laws, the prosecution would only be able to bring one of those two proceedings. This exception will apply to acquittals for all indictable offences.

An acquitted person can in almost all circumstances already be prosecuted under current laws for an administration-of-justice offence. In some situations where the Carroll principle would apply, the acquitted person could be subject to an application for retrial of the primary offence on the fresh and compelling evidence exception, if the offence threshold was met. This threshold is intended to limit the fresh-and-compelling-evidence exception to double jeopardy to the most serious cases; it could undermine this policy to allow an administration-of-justice offence to be charged as an alternative.

There must be fresh evidence of the administration-of-justice offence. This prevents the prosecution from merely re-litigating the original trial under a different charge, as fresh evidence must have come to light since the original trial. 'Fresh' is defined in the same way as for the fresh and compelling evidence exception: this reinforces the need for diligence and care in prosecutions.

MCCOC argued and COAG agreed that it was appropriate to address directly the Carroll principle by the introduction of an administration-of-justice offence exception. Although implementation of this exception would not overturn the decision in Carroll itself (there was no fresh evidence), it would in future allow for an acquitted person to be tried for perjury in the Carroll situation.

Safeguards on Retrials

Two of the three proposed exceptions contemplate the retrial of the accused on the original charge for which he or she was acquitted. This is clearly an exceptional procedure that would only take place on rare occasions. The Bill includes a number of safeguards recommended in the various reports.

1. The retrial must commence on application by the DPP to the Court of Criminal Appeal. The court may order a retrial only if it is satisfied that in all the circumstances it is in the interests of justice for the order to be made. An order for a retrial is not in the interests of justice unless the court is satisfied that a fair retrial is likely in the circumstances. In determining whether it is in the interests of justice for an order for a retrial to be made, the court must have regard in particular to the length of time since the acquitted person allegedly committed the offence; and whether any police officer or prosecutor has failed to act with reasonable diligence or expedition in connection with the application for a retrial of the acquitted person.

2. A police officer is not to carry out or authorise a police reinvestigation of an acquitted person unless the DPP has advised that in his opinion the acquittal would not be a bar to the trial of the acquitted person in this jurisdiction for an offence, and given his written consent to the investigation. In this context, 'police reinvestigation' means any investigation of the commission of an offence by an acquitted person in connection with the possible retrial of the person for the offence, that involves any arrest, questioning or search of the acquitted person (or the issue of a warrant for the arrest of the person), or any forensic procedure carried out on the person or any search or seizure of premises or property of or occupied by the person whether with or without the consent of the acquitted person.

3. The DPP must not give consent to a police reinvestigation unless satisfied that there is, or there is likely as a result of the investigation to be, sufficient fresh evidence to warrant the conduct of the investigation, and it is in the public interest for the investigation to proceed.

4. There is an urgency exception to the requirement for DPP authorisation of police reinvestigation, to allow a police officer to take investigative action without DPP consent if the action is necessary as a matter of urgency to prevent the investigation being substantially and irrevocably prejudiced, and it is not reasonably practical to obtain DPP consent before taking the action. In addition, the DPP must be advised as soon as practicable of any investigative action taken on the basis of urgency, and the DPP's consent is required for the continuation of a reinvestigation commenced under the urgency exception.

5. The court may prohibit publication of any matter, if it appears to the court that the publication would give rise to a substantial risk of prejudice to the administration of justice in a retrial.

6. An application for a retrial is to be made not later than 28 days after the acquitted person is charged with the offence or a warrant has been issued for the person's arrest in connection with such an offence. The court may extend this period with good cause. An indictment for the retrial of a person that has been ordered by the court cannot, without the leave of the court, be presented after the end of the period of two months after the order was made. The court must not give leave unless it is satisfied that the prosecutor has acted with reasonable expedition, and there is good and sufficient cause for the retrial despite the lapse of time since the order was made.

7. For the avoidance of obvious prejudice, at the retrial of the accused person, the prosecution is not entitled to refer to the court's finding that (as the case may be) there appears to be fresh and compelling evidence against an acquitted person, or more likely than not, the accused person would have been convicted originally but for the commission of the administration-of-justice offence.

The exceptions to the rule against double-jeopardy will apply to acquittals in other jurisdictions.

The exceptions will apply retrospectively. This is an issue of high controversy. The Queensland Act has taken a different course. The approach in the Bill is based on the arguments that (a) the whole idea of the reform entails revisiting what has gone before and (b) the reform does not entail changing the law of liability - merely exposure to it. In addition, the safeguards include a requirement for the court to consider 'the length of time since the acquitted person allegedly committed the offence' in determining whether a retrial would be in the interests of justice. This safeguard strikes an appropriate balance between ensuring that retrials for past crimes can proceed (the public interest in bringing guilty parties to justice) and potential cases where an alleged crime occurred so far in the past that a fair trial would not be possible and a retrial would not be in the interests of justice.

Prosecution Appeals Against Acquittals—Current Law

The prosecution can appeal (with leave) on any ground against any acquittal on a charge of an indictable offence brought about by decision of a Judge after trial by Judge alone (s. 352(1)(ab), Criminal Law Consolidation Act).

The prosecution may also appeal against a court's decision on an issue antecedent to trial that is adverse to the prosecution, on a question of law (as of right) or on any other ground (with leave) (s. 352(1)(b), Criminal Law Consolidation Act). 'Issue antecedent to trial' is defined as a 'question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the court.'

A court may also reserve a question of law for consideration and determination of the Full Court. Following an acquittal, the court must, on application of the prosecution, reserve a question antecedent to the trial, or arising in the course of the trial, for consideration and determination by the Full Court – however, the Full Court's determination cannot overturn an acquittal (ss. 350, 351A Criminal Law Consolidation Act).

Prosecution Appeals Against Acquittals—The Proposal

MCCOC recommended that the right of prosecution appeal against acquittal be extended to cases in which there in an acquittal by a jury at the direction of the trial Judge. The New South Wales Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 has carried out the MCCOC recommendation. The New South Wales reforms are not retrospective and provide that an appeal against an acquittal must be made within 28 days after an acquittal (or after that period with the leave of the Court). In determining an appeal, the court may affirm or quash the acquittal: if the acquittal is quashed, the court may order a new trial, but cannot proceed to convict or sentence the accused person, nor direct the court conducting the new trial to do so. These elements of the New South Wales reforms are consistent with the MCCOC recommendations. I propose to mirror them here.

Prosecution Appeals Against Sentence—Current Law

The current law on Crown appeals against sentence is well settled. The operating general principle is stated in the decision of the High Court in Everett v The Queen and Phillips v The Queen (1994) 181 CLR 295 in which the joint judgment of Brennan, Deane, Dawson and Gaudron JJ referred to the:

…strong reasons why the jurisdiction to grant leave to the Attorney General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.

That principle has other effects though. A recent example of a common effect can be found in DPP v Dinsley [2007] VSCA 31. It should be emphasised that this is but an example of the operation of a principle common to all jurisdictions in Australia. The Court in that case held that the sentence imposed by the sentencing judge in that case was inadequate. The judgment concluded:

19 In my opinion therefore, the learned sentencing judge erred in principle by failing to differentiate between the culpability associated with the aggravated burglary and theft of the credit card, which involved invasion of the room which was the victim's home, the opportunistic acts of sexual violence which the respondent committed after he got into the victim's room and the other acts of violence to which the victim was subjected. Recognition of the need to cumulate the sentences imposed for these different groups of offences would have produced a higher total effective sentence.

20 In considering whether to allow the appeal and to exercise its re-sentencing discretion, the Court is required to take account of the respondent's exposure to a form of double-jeopardy. As Kirby P explained in R v Hayes, [(1987) 29 A Crim R 452] the principle which applies in the context of Crown appeals against sentence is not a true example of double-jeopardy but is equivalent to it because

"the prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court. In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position."

21 But for that principle I would have allowed the appeal and re-sentenced the respondent to a longer term of imprisonment. In the circumstances, however, I would dismiss the appeal against sentence. (emphasis added)

It is not surprising that concerns have been raised by the Directors of Public Prosecution in several jurisdictions that sentences that have been shown and accepted by appeal courts to be below the acceptable range remain largely uncorrected, owing to increasing use of the court's discretion to refuse to intervene when determining prosecution appeals against sentence; and the court's discretion, if re-sentencing occurs, to discount the substituted sentence to something less than that which the appeal court otherwise would have imposed.

Prosecution Appeals Against Sentence—Proposed Reform

The COAG Working Party concluded that although the courts have used the term 'double jeopardy' to describe the situation that a convicted person faces as a result of a prosecution appeal against sentence, the situation is different from the double-jeopardy faced by an acquitted person who again faces trial. An acquitted person who endures a retrial faces, for the second time, the prospect of being found guilty, whereas a convicted person enduring a prosecution appeal against sentence faces the less severe prospect that their sentence may be varied.

It is intolerable that prosecution appeals against sentence fail although the court is of the opinion that the sentence is inadequate. Although there can be no question of a court's micro adjusting sentences on appeal, equally, courts of appeal should not be affirming inadequate or erroneous sentences. The Bill therefore provides that, when a court is considering a prosecution appeal against sentence, no principle of sentencing double jeopardy should be taken into consideration by the court when determining whether to exercise its discretion to impose a different sentence, or in determining what sentence to impose.

This correction will not affect underlying principles that say:

that prosecution appeals against sentence should be rare;

that an appeal court will only intervene where error is shown; and

that the court has a discretion to refuse to intervene even if error is established or to substitute a discounted sentence where re-sentencing does occur.

These are major and important reforms of substance.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 5—Interpretation

This amendment proposes to insert a definition of Full Court into the main interpretation provision. That definition currently appears in Part 11 of the principal Act but is also required for new Part 10 and so is to become a definition for the general purposes of the principal Act.

5—Insertion of Part 10

Part 10—Limitations on rules relating to double jeopardy

Division 1—Preliminary

331—Interpretation

This new section contains definitions of words and phrases for the purposes of new Part 10. In particular, an administration of justice offence is defined to include offences such as perjury or subornation of perjury, or bribery of a judicial officer, for example. Other definitions, such as a Category A offence and relevant offence are also included.

332—Meaning of fresh and compelling evidence

New section 332 sets out, for the purposes of new Part 10, the meanings of fresh evidence and compelling evidence in relation to an offence of which a person has been acquitted.

333—Meaning of tainted acquittal

This new section sets out what makes an acquittal of an offence tainted for the purposes of new Part 10.

334—Application of Part

New section 334 provides that new Part 10 applies whether the offence of which a person is acquitted is alleged to have occurred before or after the commencement of that Part. However, the section goes on to provide that new Part 10 does not apply if a person is acquitted of the offence with which the person is charged but is convicted of a lesser offence arising out of the same set of circumstances that gave rise to the charge except in circumstances where the acquittal was tainted.

Division 2—Circumstances in which police may investigate conduct relating to offence of which person previously acquitted

335—Circumstances in which police may investigate conduct relating to offence of which person previously acquitted

This new section provides that, other than in urgent circumstances, a police officer may only carry out an investigation to which this section applies, or authorise the carrying out of such an investigation, with the written authorisation of the Director of Public Prosecutions (DPP). The DPP may only authorise such an investigation if—

the DPP is satisfied that, as a result of the investigation, the person under investigation is, or is likely to be, charged with an offence of which the person has previously been acquitted or a related administration of justice offence, and it is in the public interest to proceed with the investigation; and

in the DPP's opinion, the previous acquittal would not be a bar to the trial of the person for an offence that may be charged as a result of the investigation.

The sorts of investigation to which this new section applies, includes—

the questioning, search or arrest of a person;

the issue of a warrant for the arrest of a person;

a forensic procedure carried out on a person;

the search or seizure of property or premises owned or occupied by a person,

where the investigation is in respect of the person's conduct in relation to an offence of which the person has previously been acquitted or any other included offence.

Division 3—Circumstances in which trial or retrial of offence will not offend against rules of double jeopardy

336—Retrial of relevant offence of which person previously acquitted where acquittal tainted

This provision enables the DPP to apply to the Full Court for an order that a person who has been acquitted of a relevant offence (that is, a Category A offence or any other offence for which the prescribed penalty is imprisonment for at least 15 years) be retried for the relevant offence. The Full Court must not make any such order unless the Court is satisfied that the acquittal was tainted and, in the circumstances, it is likely that the new trial would be fair.

New section 336 also provides for procedural matters relating to such applications.

337—Retrial of Category A offence of which person previously acquitted where there is fresh and compelling evidence

This provision enables the DPP to apply to the Full Court for an order that a person who has been acquitted of a Category A offence be retried for the offence. The Full Court must not make any such order unless the Court is satisfied that there is fresh and compelling evidence against the person in relation to the offence and, in the circumstances, it is likely that the new trial would be fair.

New section 337 also provides for procedural matters relating to such applications.

338—Circumstances in which person may be charged with administration of justice offence relating to previous acquittal

This provision enables the DPP to apply to the Full Court for an order that a person who has been acquitted of an indictable offence be tried for an administration of justice offence that is related to the offence of which the person has been acquitted. The Full Court must not make any such order unless the Court is satisfied that there is fresh evidence against the person in relation to the offence and, in the circumstances, it is likely that the trial of the administration of justice offence would be fair.

New section 338 also provides for procedural matters relating to such applications.

Division 4—Prohibition on making certain references in retrial

339—Prohibition on making certain references in retrial

New section 339 provides that at the retrial of a person for an offence of which the person had previously been acquitted by order of the Full Court under Division 3, the prosecution must not refer to the fact that, before making the order for the retrial of the offence, the Court had to be satisfied that—

the acquittal was tainted; or

there is fresh and compelling evidence against the acquitted person in relation to the offence,

as the case requires.

Division 5—Court may impose more severe sentence on appeal by prosecution

340—Court may impose more severe sentence on appeal by prosecution

New section 340 provides that, despite any other rule of law, if, on an appeal against sentence brought by the prosecution, the court is satisfied that the sentence should be quashed and a more severe sentence substituted, the court may substitute a more severe sentence even if, in so doing, the court may be exposing the convicted person to a form of double jeopardy.

6—Amendment of section 348—Interpretation

This amendment is consequential on the amendment to section 5 of the principal Act (see clause 4).

7—Amendment of section 352—Right of appeal in criminal cases

Section 352 makes provision for appeals to the Full Court. The amendment to this section proposes to allow the DPP, with the permission of the Full Court, to appeal against an acquittal on any ground, not only from a trial by judge alone, but also from a trial by jury where the judge directed the jury to acquit.

8—Amendment of section 353—Determination of appeals in ordinary cases

The proposed amendments clarify the position where the Full Court orders a new trial under subsection (2a)(b).

Debate adjourned on motion of Mrs Redmond.

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