Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011
Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011 was introduced into the Legislative Assembly on 8 November 2011 by Hon Robert Clark, Attorney-General, and received its second reading on 9 November 2011.
Explanatory Memorandum and Statement of Compatibility
This bill reforms the common-law rules against double jeopardy by providing that a person may be tried again for the same offence in certain circumstances despite a previous acquittal. A new trial can be allowed in three situations:
- where there is 'fresh and compelling' evidence against the person (eg. new DNA evidence or a person confesses to having committed the offence)
- where the acquittal was 'tainted' (eg by an 'administration-of-justice offence' such as bribery of a witness or perjury).
- where there is fresh evidence that the accused person has committed an administration-of-justice offence in respect of an acquittal and the prosecution seeks to bring charges for that offence notwithstanding the acquittal.
The bill defines the circumstances in which retrials may be allowed and builds in safeguards with respect to the powers of police and the Director of Public Prosecutions (DPP), as well as criteria to guide the Court of Appeal. Police must seek written authorisation from the DPP, and the DPP must be satisfied that the reinvestigation will, or is likely to result in sufficient new evidence and that it would be in the public interest to authorise a reinvestigation. Retrial applications could only be made for serious offences such as murder, manslaughter, arson causing death, serious drug offences and aggravated forms of rape and armed robbery.
The bill also introduces amendments in the Magistrates Court to require the prosecution to make available basic information to the accused person's lawyer. This is aimed at ensuring no cases are adjourned because information the prosecution has already prepared is not available at the first mention hearing.
A further amendment in the bill ensures that where an infringement notice results in a deemed conviction (eg. a drink driving conviction), that conviction forms part of the offender's criminal record and is taken into account when a court is sentencing an offender.
(See Second Reading, 9 November 2011, Hansard, pp 5350)
The bill amends
- Criminal Procedure Act 2009
- Public Prosecutions Act 1994
- Appeal Costs Act 1998
"In 2003, the Standing Committee of Attorneys-General (SCAG) referred the issue of double jeopardy to the then Model Criminal Code Officers Committee (MCCOC) for review and to consider possible reforms that would militate against any injustices flowing from a strict operation of the double jeopardy principle." (-- SCAG website)
In November 2003, MCCOC released a discussion paper on double jeopardy. Following public feedback, MCCOC prepared a briefing paper, which it presented to SCAG (18-19 March 2004).
"In July 2006, the Council of Australian Governments (COAG) agreed that reform of the rule against double jeopardy was an important criminal law policy reform that merited nationally consistent treatment. COAG also agreed to progress this reform through a Senior Officials working group on the basis of recommendations made by MCCOC.
"In April 2007, the Double Jeopardy COAG Law Reform Working Group presented its recommendations on double jeopardy law reform, prosecution appeals against acquittals and prosecution appeals against sentence to COAG. COAG agreed that jurisdictions would implement the Working Group's recommendations, noting that the scope of reforms would vary amongst jurisdictions reflecting differences in the particular structure of each jurisdiction's criminal law. Victoria and the Australian Capital Territory reserved their positions in relation to the recommendations". (-- SCAG website)
Double Jeopardy Law Reform: Model Agreed by COAG - April 2007
Background media regarding the COAG agreement on double jeopardy law reform -
'Labor, Libs disagree on double jeopardy' (Australian, 26 October 2007)
'Retrial laws are courted' (Herald Sun, 22 October 2007)
'Double jeopardy: the law should not prefer justice over truth' (Australian, 19 October 2007)
'Double jeopardy shake-up' (Australian Financial Review, 19 October 2007)
'New Jeopardy rule 'affects 1pc of cases' '(Australian, 17 August 2007)
'Double Jeopardy:it is only sensible that the law keep pace with technology' (Australian, 21 April 2007)
'Double Jeopardy row' (Herald Sun, 13 April 2007)
'Law wrong for far too long' (Herald Sun, 21 September 2006)
'Britain ditches double jeopardy' (Age, 13 September 2006)
'Double Jeopardy: states fail to agree' (Australian, 29 August 2005)
'Hulls offers to examine jeopardy' (Age, 20 March 2004)
'Law-makers weigh up repeat trials' (Age, 14 Novemer 2003)
'Push to halt aquittals by mistake' (Age, 11 February 2003)
'Split verdict on retrials' (Australian, 11 Feburary 2003)
'Legal integrity put in jeopardy' (Australian, 10 February 2003)
'Review risks presumption of innocence' (Australian, 20 December 2002)
14 September 2010 - Question without Notice - Justice: Double Jeopardy (Robert Clark, Premier John Brumby)
15 June 2006 - Second Reading debate - Charter of Human Rights and Responsibilities Bill (Robert Cooper)
10 April 2003 - Question without Notice - Standing Committee of Attorneys-General: meeting (Tony Lupton, Attorney-General Rob Hulls)
History of Double Jeopardy
See 'The Development of the Double Jeopardy Doctrine' (p605-8) in Parkinson, C. (2003) 'Double Jeopardy Reform: The New Evidence Exception for Acquittals', University of New South Wales Law Journal, vol. 26 No. 3.
See 'Double Jeopardy: an ancient rule' (p231-3) in Kirby, M. (2003) 'Carroll, double jeopardy and international human rights law', Criminal Law Journal, vol. 27 No. 5. October 2003.
Department of Justice - 'Victorian Government to introduce double jeopardy reforms'
DoubleJeopardyReform.org (branch of the Crime Victims Support Organisation)
Law Insitute of Victoria - 'Law Institute Urges Caution on Double Jeopardy'
Liberty Victoria - 'Right to Justice'
Victims of Crime Counselling and Compensation Services, Victoria - 'Double Jeopardy Reform'
Victorian Bar - Open Letter from Victorian Bar and CBA regarding the Double Jeopardy Bill
'Walsh St 'admission' ' (Herald Sun, 13 November 2011) - web version
'Legislative Action: Changes to Double Jeopardy Law introduced into Parliament' (Shepparton News, 9 November 2011) - web version
'Double Jeopardy Reform' (Bendigo Advertiser, 9 November 2011)
'Double Jeopardy Law Reform Starts' (Ballarat Courier, 9 November 2011)
'Victorian Double Jeopardy reform begins' (Age, 8 November 2011) - web version
'Double Jeopardy' (Herald Sun, 8 November 2011) - web version
'Police target Walsh Street' (Herald Sun, 8 November 2011) - web version
'Double Jeopardy law change 'not if, but when' (Shepparton News, 29 September 2011) - web verson
'Double dip at crims' (Herald Sun, 15 September 2011) - web version
'Police killing retrial hope' (Geelong Advertiser, 15 September 2011)
'Walsh Street justice is vital in a case that demands to be solved' (Herald Sun, 15 September 2011) - web version
'A Walsh St retrial?' (Shepparton News, 15 September 2011)
'Walsh Street retrial chance' (Warrnambool Standard, 15 September 2011)
'Walsh St justice bid' (Herald Sun, 14 September 2011) - web version
'Tread carefully, lest vindictiveness place justice in jeopardy' (Julian Burnside, Age, 6 June 2011) - web version
'It's not over until the widow sings' (Sunday Age, 9 January 2011) - web version
'So, where is the justice?' (Herald Sun, 7 January 2011) - web version
'Baillieu to revise double jeopardy' (Age, 14 September 2010) - web version
'Walsh St case on Libs' list' (Herald Sun, 14 September 2010)
'Crooks' jail time jeopardy' (Herald Sun, 6 October 2009) - web version
'Coalition Government to introduce double jeopardy reforms' (Robert Clark Attorney-General, 8 November 2011)
'Baillieu Govt to Reform Double Jeopardy Law' (Robert Clark, 14 September 2010)
Criminal Code (Double Jeopardy) Amendment Act 2007 - Queensland
Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 - South Australia
Criminal Code Amendment Act 2008 - Tasmania
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 - New South Wales
Criminal Appeals Amendment (Double Jeopardy) Bill 2011 - Western Australia
Last updated November 2011