Double Jeopardy (Qld) | Armstrong Legal

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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Double Jeopardy (Qld)


The maxim of “double jeopardy” means no one can be prosecuted twice for the same offence. The law is stated at section 17 of the Criminal Code Act 1899:

“It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged.”

The rationale for double jeopardy is that an accused person should have certainty that a matter is finalised and not fear ever being prosecuted again for the same offence. It also ensures police investigate crimes as thoroughly as possible so the best case is placed before a jury, given there is no second attempt allowed.

The Act contains very limited exceptions to the double jeopardy rule, as a result of the Double Jeopardy Amendment Act 2007. Prior to the amendments, there was no mechanism in Queensland for an acquitted person to be retried. The change was prompted by the High Court case of The Queen v Raymond John Carroll in 2002. In 1985 Carroll was convicted of the murder of baby Diedre Kennedy. The conviction was overturned on appeal. In 2000 he was convicted of perjury over his denial on oath given in evidence at his trial, with the Crown (prosecution) arguing there was new and reliable evidence to prove Carroll had murdered Kennedy. Carroll’s conviction was overturned on appeal, with the Court of Appeal stating the effect of the perjury trial was to try again the issue which was central to his trial for murder, and this was an abuse of process. The Crown unsuccessfully appealed to the High Court.

Exceptions

Chapter 68 of the Act contains very limited exceptions to the double jeopardy rule.

New evidence

The court can order a retrial of an acquitted person for the offence of murder if:

  • there is “fresh and compelling” evidence against the acquitted person; and
  • in all the circumstances, it is in the interests of justice for the order to be made.

Evidence is “fresh” if it was not presented in the trial in which the person was acquitted, and it could not have been found without the exercise of reasonable diligence. Evidence is “compelling” if it is reliable, substantial and highly probative of the case against the acquitted person.

The order can be made even if the person had been acquitted of a lesser offence.

Tainted acquittal

The court can order an acquitted person to be retired for a “25-year offence” if:

  • the acquittal is a “tainted acquittal”;
  • in all the circumstances, it is in the interests of justice for the order to be made.

A “25-year offence” means an offence punishable by imprisonment for life or for 25 years or more.

A “tainted acquittal” means the accused or someone else has been convicted of an administration of justice offence in relation in the matter, and it is more likely than not that the accused would have been convicted if not for that offence. An acquittal cannot be a tainted acquittal until any appeal of the conviction for the administration of justice offence has been decided.

Interests of justice

Before ordering a retrial of an acquitted person under a double jeopardy exception, the court must be satisfied a fair retrial is likely in the circumstances. The court must consider:

  • the length of time since the acquitted person allegedly committed the offence;
  • whether the police or prosecutor has failed to act with reasonable diligence or expedition in relation to the initial investigation and prosecution, and the application for retrial.

Applications for retrial

An application for a retrial under a double jeopardy exception is made to the court by the Department of Public Prosecutions. A hearing must be held to consider the application, and the accused is entitled to be present and heard at the hearing, whether or not they are in custody. However, the application can be decided if they are not present.

Retrial

An indictment (written notice of the charge) must be presented within 2 months of the retrial order. The court can allow the prosecution to present the indictment after 2 months have passed only if it is satisfied the prosecutor acted reasonably and there is good and sufficient reason for the retrial despite the lapse of time.

If an indictment has not been presented within 2 months, the acquitted person can apply to have the retrial order set aside and the acquittal restored.

At a retrial under a double jeopardy exception, the prosecution is not entitled to state that the court has found that there is fresh and compelling evidence or that it is more likely than not that the accused would have been convicted if not for an administration of justice offence.

There is a presumption of bail for an acquitted person awaiting retrial.

Restrictions on publication

It is prohibited to publish any information with an aim to identify an acquitted person who is being retried. The prohibition ends when a court revokes it, when there is no longer any prospect of a retrial or when the retrial ends. A person who contravenes this law will be charged with contempt of the Supreme Court.

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