David Blunkett
Oliver Wendell Holmes
Public comments on this "noble principle"
  • "There is also the spectre of public disquiet, even outrage, when someone is acquitted of the most serious crime and new evidence, such as a confession, points strongly to guilt. These cases undermine public confidence in the administration of justice -- and may do so in a damaging way."
     Sir Anthony Mason, former Chief Justice of the High Court of Australia, 1987-1995,   The Sunday Telegraph, December 2002
  • "I think we've got to be prepared to review principles like this in a contemporary setting...There is a feature of modern life that distinguishes us from the situation 800 years ago, and that is, as we all know, DNA evidence, which can prove guilt with almost scientific exactitude, other matters being equal."
     Queensland Chief Justice Paul de Jersey, The Courier Mail, (Brisbane), April 27  2007.
  • "People argued about the medieval right not to be tried twice, as though fraudulently getting off was some sort of game..."     
     The then UK Home Secretary David Blunkett, cited in 'Justice at last: killer pleads  guilty  in Britain's first double jeopardy trial', The Guardian, (London) 12th Sep  2006
  • "Where compelling new evidence comes to light to solve a serious crime, criminals shouldn't be able to hide behind what is a legal technicality. It's just common sense."
     then New South Wales Premier Morris Iemma,  The World Today, ABC radio, 7th Sep, 2006
  • "It makes no sense to me that if someone gets off a particular case and then fresh evidence becomes available, DNA or otherwise, that they should ... literally get away with murder."
    South Australian Premier Mike Rann    ABC News, 7th August, 2007
  • "I think, not unreasonably, the public says if there is compelling evidence that a person who's been found innocent may have committed the offence for which they were found innocent, and that compelling evidence is clear cut DNA evidence, then there is strong argument for retrying that person again." 
    Bond University Criminologist Professor Paul Wilson speaking on ABC radio, The World Today - Friday, 27 January , 2006.
  • "There is an old saying that convicting one innocent person is more serious than allowing 10 guilty people to go free.  That is an unbalanced approach to justice, which assumes that there is no injured party when there is a wrongful acquittal.  A rape victim who knows the person who committed the rape, but is unable to convince a jury, will live the rest of their life in fear because the person remains at liberty and may repeat the crime.  When new evidence becomes available -- if we are not to take an extraordinarily cavalier attitude to the rights of victims -- it is just as much a question of justice that such a person ... should be dealt with as it is that a person who was wrongfully convicted ... should be allowed to go free when the case against them is demolished. ... If we pursue the logical precept that the legal system must be seen as clearly from the victim's point of view as from that of the accused, we must surely conclude that a wrongful acquittal is as bad as a wrongful conviction.  The double jeopardy rule gets in the way of exposing wrongful acquittals, and it should be relaxed."
    UK MP Martin Linton in the British House of Commons debating the 2002 Justice Bill.
  • "I feel it's an affront to society to know that there are people walking around who just because there was insufficient evidence at a particular time have been found not guilty and allowed to go unpunished for a crime which they clearly committed."  
    Melvyn Barnett, Melbourne lawyer and victims' rights campaigner speaking on ABC radio, The World Today - Friday, 27 January , 2006 
  • "My personal view is that the risk of real injustice to victims of the most serious crimes such as murder and rape must outweigh virtually all other considerations." 
    then W.A. Attorney-General Jim McGinty, ministerial media statement, April 2003
  • "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….what basis in logic or justice can there be for preventing proof of that criminality?"
    The Right Honourable Lord Justice Auld, A Review of the Criminal Courts of England and Wales September 2001, Chap 12, para 51
  • "I'm very much in favour of changing things that don't work and this rule [double jeopardy] doesn't work...
    ..the demented, dogmatic adherence to something because it's been around for a long time..."  
     then Prime Minister John Howard at the Queensland Press Forum Luncheon,  9th April 2003
  • "if...the constitutional prohibition [of double jeopardy] should be extended to misdemeanors we shall have fastened upon the country a doctrine covering the whole criminal law, which, it seems to me, will have serious and evil consequences. At the present time in this country there is more danger that criminals will escape justice than that they will be subjected to tyranny."
    Oliver Wendell Holmes (Kepner v U.S., 195 U.S. 100, at 134 [1904])
  • "The common law says wrong guilty verdicts can be wrong, but wrong not guilty verdicts cannot be wrong."       
     Evan Whitton, five times winner of the Walkley Award for National Journalism and author  of The Cartel: Lawyers and their Nine Magic Tricks. 

What Julian Burnside Doesn’t Know about Double Jeopardy

In an article titled “Tread carefully, lest vindictiveness place justice in jeopardy” in Melbourne’s The Age newspaper on the 6th June 2011 Queen’s counsel Julian Burnside warned us of the dangers to Victoria’s  judicial system by Attorney- General Robert Clark’s proposed removal of its double jeopardy rule. His understanding of the issues surrounding the law and its international applications does seem to be surprisingly limited.

His main argument is that removal of the law would lead to prosecutorial abuse. He declares any government , through its public prosecutor’s office, may, in wanting to show its resolve about a particular matter, repeatedly bring the same defendant back for trial until a conviction is secured.

  • The problem with that argument is that this “limitless appetite for vindictiveness” as Mr Burnside puts it, is apparently something that Attorney-General Robert Clark is already aware of because, as he has publicly stated, a retrial of one previously acquitted will not be at the discretion of the DPP but solely the decision of an independent body, an appeals court.
  • Also if the reason for a new trial, apart from abuse of process, is “new and compelling evidence” then one wonders how  the police could somehow keep coming up with new compelling evidence after every acquittal?

Julian Burnside looks to Britain, Canada, The European Union and the United States as models where the double jeopardy law is embraced. Perhaps he is hard stretched for better examples.

  • America adheres to its double jeopardy constitutional amendment in an extremely pragmatic  manner. For those the authorities, because of political reasons, don’t want to try again such as sporting heroes or movie stars, they claim they are prevented because of double jeopardy, yet for those, who for political reasons they do want to re-prosecute,   such as the white Los Angeles police officers who assaulted the defenceless black motorist Rodney King in 1991, they simply change the venue and the crime (no longer assault but denial of civil rights) and proceed within all guidelines of the law.
  • The Charter of Fundamental Rights of the European Union does prevent new trials but only after “…he or she has been finally acquitted”(Article 50); acquitted after state appeals for errors of law or abuse of process are allowed.
  • Similarly Section 11 of the Canadian Charter of Rights and Freedoms only grants finality after the opportunity for prosecution appeals on errors of law.
  • Britain is even a worse model for the sanctity of the double jeopardy ‘principle’. In 1996 UK law first allowed appeals on administration of justices offences and in 2005 with the Criminal Justice Act it was extended to new and compelling evidence. Britain can even now boast three separate cases since 2006 where murderers originally acquitted have been retried and are now in jail serving life sentences.

An interesting comment Mr Burnside makes is that whether those accused are guilty or innocent, the trauma of repeated trials for serious charges can cause them a great burden.

  • Putting the innocent aside for a moment, just why is it that we should feel sympathy for the guilty in such a situation? They would find themselves continually in the dock because at their plea hearings they repeatedly lie as to their guilt. Their trauma ends the minute they start telling the truth.
  • With regards to the innocent being brought back to trial again and again: as much as this technically could happen if double jeopardy were abolished, it is very hard to image how this would actually happen in practice. As exists now with a Committal Hearing procedure, the prosecution brings evidence of the suspect’s guilt to a lower court, requesting that the presiding officer should find sufficient cause to authorise a criminal trial. If evidence is deemed to be insufficient, no trial follows.
    For an appeals court to sanction a second or further trial, the evidence presented to it must obviously substantially exceed that presented to the original jury where they thought their evidence was insufficient for a conviction. New significant evidence might qualify a second trial but it is ridiculous to believe that the police could somehow keep finding new compelling evidence after every acquittal.
    In practice what would cause successive trials would be abuse of process in previous trials where activities such as subornation of perjury or bribery had been proven to occur. In such cases it would be hard to feel sympathy for the accused who had adopted a style of defence incorporating perjury, bribery or whatever nefarious activity works.

Mr Burnside further declares, “If the rule is abolished, some apparent injustices may be remedied, but other injustices will certainly result.” What he is effectively saying is that the probability of an innocent being convicted is higher than that of a guilty person.

  • No one denies that technically an innocent could be convicted, but how could the chances be higher than convicting a guilty person when there is evidence of subornation of perjury or bribery or compelling new evidence? How often does an innocent person bribe a member of the jury, suborn perjury, or in an unguarded moment confess to have actually committed the crime?

Also he declares, “But this idea [of a retrial] has to take account of other considerations. It will often be the case that evidence, which might justify a new trial, comes to light many years after the trial. In Carroll's case[R v Carroll [2002] HCA 55], the perjury trial was about 15 years after the murder with which he had been charged. To be put on trial a second time so many years after the event will often be unjust. Evidence disappears, memories fade, popular prejudices displace actual knowledge. Delay is the enemy of justice.”

  • Julian Burnside is generously declaring here that perhaps there could be a second murder trial, if there was perversion of the course of justice in the first. But not however, if there was a long period such as the 15 year gap between the trial and the original murder he claims was in the above quoted trial.  (The period was actually 26 years between the 1973 murder and the 1999 trial.)
  • Assuming he realises there is no statute of limitations on murder,  what he is saying is that if Mr Carroll was first charged today, 38 years after the murder, it would be OK to prosecute him, but if unsuccessfully prosecuted immediately after the crime, then 15 years later, if evidence of his abusing the court process came to light, it would somehow be too late to re-try him.

Mr Burnside, in declaring “the state, with its vast resources, seeks to have a person found guilty…and punished” implies the scales are unfairly balanced against the accused as though a trial were like a public debate where both parties should have an equal chance of winning. It is a false argument.

  • The vast resources of the state go towards finding the perpetrator, whomever it may be. All evidence is handed over to the accused before trial anyway, even exculpating evidence which may tend to show the accused’s innocence.

We must remember that a bedrock of our judicial system is equity. The victim wishing to see that the violator is denounced by the court and duly punished should be of equal concern to the state as the welfare of the accused who may or may not have committed the crime.
This is manifested by many courtroom practices.

  • If the prosecution is allowed to raise objections to the conduct of the defence, then the defence can similarly object to actions of the prosecution.
  • If the defence can challenge potential jury members then so can the prosecution.
  • If the prosecution has access to certain obtained evidence then the defence must be allowed to see that same evidence.
  • If the defence can present witnesses as well as cross examine the opponent’s, then so can the prosecution.

Yet when it comes finally to the verdict, the defence can appeal as many times as it wishes, but the prosecution never. There has to be something wrong with Victoria’s current system when, in acting for those in society concerned about a murder victim, the public prosecutor has less appellate rights than those of a convicted axe murderer.  

[Home] [Comments] [Problems  with D.J.] [FAQ] [What Reform Can Do] [Contact Us] [COAG Model]

ex Chief Justice Anthony Mason
Julian Burnside Q.C.