Its Tragic Demise in New South Wales
A Tale of Woe
Another Victim of the Law 'n' Order Regime
by Andrew HaeslerPublic DefenderJune 2003
This paper was presented to the Lawyers Reform Association Seminar Series 18 June 2003
The ProposalIn February 2003 as part of the 'Tough on Crime' election campaign the Premier of NSW announced that in its next term, the Government would abolish the common law Rule against Double Jeopardy.The proposals are modelled on recent 'reforms' in England contained in their Criminal Justice Bill 2002 (UK). They will apply to homicide (murder and manslaughter offences) and offences, such as gang rape and serious drug supply, carrying life in prison as a maximum penalty. They will be retrospective. They will include, so the press release said, 'important safeguards':* 'The Director of Public Prosecutions (DPP) would need to give consent for the defendant to be reinvestigated;* Where compelling fresh evidence emerges that could not reasonably have been made available at the first trial that strongly suggest guilt the DPP would be able to apply to the Court of Criminal Appeal to quash the acquittal;* The Court of Criminal Appeal would have the power to quash the acquittal and order a retrial where there is compelling new evidence of guilt and it is in the interests of justice to do so; and* There would be only one retrial'.The issue had received media prominence following the High Court's decision in
The Queen v Raymond John Carroll (2002) 77 ALJR 157  HCA 55. Carroll originally acquitted on appeal of the murder of a young baby in 1985 (
R v Carroll (1985) 19 ACR 410). He was later prosecuted for perjury based on an allegation his denial on oath, given in evidence at his murder trial, was a lie. The Queensland Court of Appeal set aside the conviction (
R v Carroll  QCA 394). The DPP appealed. The High Court concluded that the trial should have been stayed, as it was an abuse of process.Following the re-election of the Carr Government in March 2003 it has been announced that a Consultation Draft Bill will be released in June or July. A retired Judge will review comments and submissions. A Bill is scheduled for introduction into Parliament in the Spring Session.The RuleThere has been a long-standing principle that a person should not be tried twice for the same offence or for events arising out of and related to that offence.This Rule against double jeopardy (the Rule) has its genesis in three related principles of legal theory:
The disparate nature and effect of the Rule was made clear by the Chief Justice and Justice Hayne in
The Queen v Carroll at :
'The expression "double jeopardy" can give rise to difficulty if the sense in which it is being used is not made clear. As was pointed out in Pearce v The Queen(1998) 194 CLR 610 at :
As was also pointed out in Pearce, at  because double jeopardy is an expression used in connection with several different stages of the process of criminal justice and because there are other (sometimes competing) forces at work in the area, the treatment of double jeopardy has not always been clearly based on identified principles. As the criminal law has become more complex, it has become even more important to examine those principles upon which the disparate principles encompassed by the expression double jeopardy are based if it is said that one or more of those principles is engaged in a particular case'
The general Rule reflects the importance given by our legal system to the finality of verdicts in the resolution of disputes, particularly the status conferred by an acquittal.It also reflects a number of other important considerations:* That a person should not be harassed by multiple prosecutions about the same issue,* The fact that the powers and resources of the State as prosecutor are much greater than those of any individual;* The fact that prosecution has in the past and may in the future be used as an instrument of 'tyranny',* That trials are by nature stressful for all concerned,* The serious consequences of conviction and* One of the fundamentals of our system of law and justice that a verdict of acquittal should be treated final and not subject to further investigation.Many of these reasons were canvassed in
The Queen v Carroll at -,  -  and  and by the UK Law Commission (Summary at -).The Rule recognises that efficient investigation of crime is of particular importance and, that that efficiency may be undermined should the prosecution be allowed a 'second go'. To put it simply, the risk of prejudicial consequences to a fair fresh trial of the inevitable attendant publicity following the acquittal, re-investigation application for review and review by the Court of Criminal Appeal is too great to risk.
The Queen v Carroll examples of the Rules operation can found in
Pearce v The Queen (1998 194 CLR 610). For example Gummow J at  said:
The matter was also considered in
Demirok v The Queen (1977) 137 CLR 20. Justice Murphy remarks bear extensive quotation Justice Murphy also reviewed the powers of an Appellate Court to order a retrial following a successful appeal against conviction. A matter taken up recently by the High Court in
Conway v The Queen (2001) 209 CLR 203. His comments, citing US authority on repeated retrials are also of interest.:
This was cited in Green v. United States where the Court went on to State (1957) 355 US 184, at pp 187-188 (2 Law Ed 2d 199, at p 204). :
It is notable that in their joint judgement in
The Queen v Carroll, Justices Gaudron and Gummow said that defendants exercising their right to testify should not be at risk of a subsequent prosecution for perjury in respect of their denial of guilt on the first charge (at ) Their Honours at  also touched on the related problem of evidence called in later proceedings, which might call into question the acquittal. They noted that in
R v Z  2 AC 483
, R v Arp  3 SCR 339 and
R v Degnan 2001] 1 NZLR '
the earlier acquittal would not be controverted by a guilty verdict at the second trial. (The law in the UK was based on
Sambasivam v Public Prosecutor- Malaya  AC 458. It is now regarded as 'far from clear' as there is now no issue estoppel in criminal law
DPP v Humphries  AC 1( Law Commission,
Summary at -.))
The Rule and its important principles are reflected in the
International Covenant on Civil and Political Rights (ICCPR) Article 14(7):
They can also be found in similar terms in Protocol 7, Article 4(1) of the
European Convention on Human Rights (ECHR).Both the ICCPR and the ECHR do however allow for prosecution appeals. The use of the term '
finally' in 14(7) makes this clear. Such appeals are apparently common in Civil Law jurisdictions. However, there is a difference between a right to appeal and a law which allows re-opening of a case after it has been finalised. Such a provision does not appear to be in accord with the ICCPR. Further, the retrospective nature of the proposals appears contrary to the ICCPR. Retrospectivity would appear to be directly contrary to the Article 14(7) P Pentony & S Rice
When the story ends, close the book: Discussing the double jeopardy rule at www.online opinion.com.au and the spirit of Article 15.Reversing the RuleThe promised reversal of the rule is not unprecedented. Exceptions to the rule can now be found in the United Kingdom and New Zealand.In the United Kingdom sections 54 to 57 of
Criminal Procedure and Investigations Act 1996 allow for an acquittal for any offence to be set aside if the acquittal is 'tainted' Part 9 of the Criminal Justice Bill presently before the UK Parliament extends this inroad. The Bill sets out the provisions now proposed for NSW.The UK changes follow a Review of the Rule by the Law Commission of England and Wales March (2001), and the Review of the Criminal Courts of England and Wales (the Auld Report 2002). Lord Auld's Report was critical of the Law Commission for not going far enough. His Report provides the foundation for the new UK Bill.There was also a Review by the New Zealand Law Commission who published their Report: '
Acquittal following Perversion of the course of justice' in 2001.The New Zealand Law Commission recommended this if there was a successful perjury conviction, a retrial of the original count should follow. They also put in a recommendation that it must also be shown that any fresh evidence could not have been available with prosecution due diligence. The New Zealand Law Commission did not restrict the offences to which this provision applied.In Australia the Commonwealth's Model Criminal Code Committee was asked to prepare a Report for the Standing Committee of Attorney-General's on the issue. That Report has not yet been released to the public.The issue has in fact not been subject to any detailed public consideration within Australia.Existing Appeal ProvisionsThe Prosecution in NSW are not totally without remedies if dissatisfied with decisions of the Courts.The
Justices Act 1901 allows an informant extensive rights of Appeal both to the Supreme and District Courts (ss 104, 133E to 133I). These provisions are to be replaced in July 2003 by the
Crimes (Local Courts Appeal And Review) Act 2001. A case can be stated from the decisions of the District Court where it deals with an appeal from the Local Court in its 'Criminal and Special Division'(s5B
Criminal Appeal Act 1912).For indictable matters, either the DPP or the Attorney General can appeal to the Court of Criminal Appeal against interlocutory decisions (s5F
Criminal Appeal Act 1912). This includes decisions which effectively rule out a Crown case, see
R v Lissoff  NSWCCA 364. There is no appeal after a formal acquittal, see
R v Vincent  NSWCCA 110. A right of appeal also exists for appeals against leniency of indictable sentences (s5D(1)
Criminal Appeal Act 1912).Decision of the Court of Criminal Appeal can be appealed, with leave, to the High Court (s34
Judiciary Act 1903 Comm.).Lord Auld in his Report summarised the UK position:
Remove the RuleThe most coherent argument for abolition of the Rule is found in Lord Auld's Report at -. He argues that:
The doctrine, in its application to an acquittal, is not absolute and, as a matter of common sense, should not be so.... the general justifying aim of the administration of criminal justice is to control crime by detecting, convicting and duly sentencing the guilty. It is not part of that aim, simply a necessary incident of it, that the system should acquit those not proved to be guilty. If there is compelling evidence, say in the form of DNA or other scientific analysis or of an unguarded admission, that an acquitted person is after all guilty of a serious offence, then, subject to stringent safeguards of the sort proposed by the Law Commission, what basis in logic or justice can there be for preventing proof of that criminality? And what of the public confidence in a system that allows it to happen?
To permit reopening of an acquittal in such a circumstance is not inconsistent with the International Covenant on Civil and Political Rights 1966 or with the European Convention of Human Rights'. At -.
His Lordship rejected the Law Commission arguments based on the rights of the individual as being too restrictive and ignoring the community interest in 'just' convictions (at ).Justice and Justice Hayne in
The Queen v Carroll, although they supported the Rule, displayed a similar attitude:
The NSW Attorney General justifies the proposed changes by reference to 'the advances in forensic science ( particularly DNA testing) and the certainty of determining issues that that technology entails. Mr Debus notes Personal correspondence from Bob Debus June 2003:
Mr Debus highlighted the '
important safeguards' in the proposal and stated paradoxically, that:
Opposition to ChangeThe Public Defenders take the view that the arguments for change do not justify interference with long-standing and practical common law principles. The Bar has taken a similar position. Both have made their views known to the Government, in no uncertain terms.Given the present 'persistently punitive attitude of the community toward criminals' to quote McHugh J in
Ryan v The Queen (2001) 200 CLR 267 at  the interference with the Rule leaves open the real risk that media outrage following acquittals will lead to retributive second prosecutions. This will be so even with the promised requirement that both the Director of Public Prosecutions and the Court of Criminal Appeal must sanction a retrial. As we have seen with bail laws each diminution of the rights of an accused is criticised by the Opposition and some in the media as 'not going far enough'. It is then further eroded as soon as the next 'outrage' occurs. For more on this cycle see Russell Hogg & David Brown
Rethinking Law and Order1998 Pluto Press.In the United Kingdom the changes followed on from the media attacks on the Justice System after a number of young men were acquitted of the racially motivated murder of Stephen Lawrence. That experience illustrates the possible danger of allowing trials to be reopened. In the Lawrence case, despite what appears to be the perfectly legitimate rejection of flawed identification evidence, a media campaign was able to significantly undermine the integrity of the criminal justice system.The continued erosion of what were once thought to be fundamental 'rights' is indicative that the principle of limited Government is being abandoned. The State can do what it wants. Without any brake on the Executive Government's power to make and enforce laws they can and do say; 'in order to control crime - anything goes'. In the absence of a strong Parliament and a Bill of Rights only the legal profession and the limited powers of some in the courts can stop or stem the flood. See for example the remarks of Sir Anthony Mason in (1987) 13 Mon Law Rep 149 and later in Kinley (ed)
Human Rights in Australian Law 1998 Fed Press. The competing views on judicial activism on Human Rights issues are illustrated by two recent articles- John Perry
Have judges gone too far, 15 Judicial Officer Bulletin No4 and JB Thomas
Judges who play politics (2003) 77 ALJ 173. To date most of the arguments against removal of the Rule and other common law 'rights' has been very much 'finger in the dyke' stuff.Arguments based on common sense or even rational economics have yet to work. Despite even or decreasing crimes rates. The number of full time Prisoners in NSW now exceeds 8,000. Nearly 2,000 of them are on remand. There is no reliable information or data to suggest we as a society are safer for being tougher. Nic Cowdery
Rethinking Law and Order And it costs over $180 a day to keep a prisoner in maximum security! As long as our politicians' think they will be undone by 'crime' as the Premier noted in his diaries (SMH 2/5/2003) we are at risk of unlimited oppression in the name of law and order. The UK Law Commission argued strongly that, while exceptions to the principle should be allowed, respect for the fundamental rights and freedoms must continue. The individual citizen's right to be treated with dignity and respect must operate in favour of defendants to criminal charges to mitigate the power of the State. (
Consultation Paper at 158, Ch III). To date no one in authority in NSW has made such a pronouncement.To argue as Lord Auld does that the Rule is not necessary, as we no longer have the death penalty, is specious. While we no longer have the death penalty there are regular calls for its reintroduction. In any event a life sentence now means natural life. The State forcing someone no matter how 'evil' his or her crime to spent over sixty years in maximum security is almost as incomprehensible as the State taking life as a deterrent! Life sentences have been imposed on those as young as 19 (see
R v Valera  NSWCCA 50).
Loath as I am to rely on the words of the present Chief Justice and Justice Hayne on matters of civil liberty what they said in
The Queen v Carroll (at ) does bear repeating:
Their Honours then referred to what was said by Lord Wilberforce in
The Ampthill Peerage AC 547 at 569:
I am all for the points noted above. However while simple 'finger in the dyke' responses, based on what we, as lawyers thought were fundamentals, can't be abandoned they are clearly not enough. They have failed to convince the politicians, the media, many lawyers and to date the public. It is ironic that we who act for the defence have been forced to defend what years ago we saw as conservative and stultifying rules and principles lining up with Mason, Gleeson and Hayne and their ilk. It is ironic too, that the most innovative recent changes in criminal law and the conduct of criminal trials have come from the Prosecutors amongst us. It is perhaps time to match the neo conservatives and come up with more innovative approaches to the 'Crime' problem. Approaches, which put the State on the spot and recognise the interests of those individuals who face not only the criminal law but also the now respectable idea that in investigating, and punishing crime 'anything goes'. Increasingly we hear about the responsibilities of citizens. But this must be balanced by the responsibility of the agencies of State to act reasonably at all times and to suffer severe consequences if they do not.Where to Next?While I welcome the opportunity to comment further on the proposed 'Consultation Draft' a degree of scepticism must be excused. Previous press releases announcing law reforms have said that consultation will follow. A recent example is the minimum sentence legislation part 8A
Crimes (Sentencing Procedure) Act 1999 as amended. That consultation did not led to any substantial change to the Draft Consultation Bill. There is a strong feeling in Government that; the press release once issued is the policy; to pull back is a sign of weakness; and that legislation and debate is but an unfortunate technicality that must be endured.As the Government has already committed itself to the proposed 'reforms' there is little doubt that regardless of the result of the consultation it will implement them.If there were to be change it would appear essential that the new rules apply only to the serious offence of murder. This would recognise the status of that offence and the particular moral wrong in appearing to 'getting away with murder'.They should not be retrospective, as this would clearly contradict the
International Covenant on Civil and Political Rights.Further as with the current UK
Criminal Procedure and Investigation Act intervention should only occur where there is strong evidence that the original trial was 'tainted'.The must also be some sort of time limit imposed on reopening old acquittals, at most 5 years. Even for the most serious crimes an acquitted person must be able to resume or rebuild their life after trial without fear the past will be resurrected.There is also scope for demanding some reciprocity by way of strengthening the rights of citizens who may become subject to criminal charges. The State has responsibilities to all citizens including those facing charges or recharge. Why shouldn't there be a time limitation or general Statute of Limitations of say 5 years (and 5 years after a child reaches turns 18), on resurrecting any old investigations or laying criminal charges. Article 6 of the ECHR speaks of prosecutions being commenced within a 'reasonable time.' Which term, although not defined, is a start.If we are to open up the prosecution process why not also legislate to remove some of the considerable restrictions on re-opening convictions. These are presently fixed by such cases as
Mickelberg v The Queen (1989) 167 CLR 259 and
R v Gallagher (1985) 160 CLR 392. We have a limited and under resourced 'Innocence Panel' within the Police Department dealing with possible reviews of trials where fresh DNA analysis may give rise to doubts about a conviction. Why not set up an independent agency with the resources to properly reinvestigate all possible wrongful convictions. This suggestion was made by legal commentator Richard Ackland in the Sydney Morning Herald following the Premier's announcement. He pointed out that in the UK there was a Criminal Case Review Commission, which can investigate wrongful convictions.Richard Ackland also noted that in bringing on the 'reform', the Government had 'dispensed with the tedium of consultation'. He was scathing in his criticism of the proposal: 'More of a stunt than a principle'.I can but agree.An Aside:Double Jeopardy on Sentence: The concept of traditional restraint following a successful Crown Appeal.As was noted in
The Queen v Carroll the Rule has a number of aspects. Once import one relates to what should occur following a successful Crown appeal against the leniency of a sentence imposed at first instance.
It was thought that appeal Court should accord the applicant the benefit of the Rule and shown similar judicial restraint when it came to re-sentencing:
This notion of judicial restraint is in line with the other general principles, which govern Crown Appeals:
All flow from and operate in tandem with the Rule against of double jeopardy. A Rule, which has been expressed, as 'a man should not be twice vexed for the same cause'.What can be more vexing than having received a sentence to then have it appealed and have the Appellate Court triple your time in gaol!It is clear that the Rule is not always followed by the NSW CCA. See
R v AEM & Others  NSWCCA 58 and
R v Markarian  NSWCCA 8. AEM was refused special leave to appeal to the High Court (although this point was not raised). Markarian's Application is still to be heard.