not guilty
balanced scales
Rob Hulls
Tony Bourke
Frequently Asked Questions

How would you like the Victorian law to be changed?

  • Simply put, we would like some equity brought to the criminal justice system with regards to appeals. We believe the prosecution, in acting for the victim, should have equal rights of challenging a court or jury verdict as that of the convicted felon. Any reason that justifies someone appealing a conviction (new and compelling evidence, incorrect ruling during the trial by the judge, etc) should also justify an appeal against an acquittal.

 

Isn't it a bit tough to ask someone, who has gone through all the costs and trauma of a criminal trial, answered all the questions asked of him, and ultimately convinced the jury of his innocence, to have to go through the whole process again?

  • What you described is not always the way a court case progresses. People often get acquitted because they lie when giving testimony, go to great pains to conceal relevant evidence, induce witnesses to give false evidence, or sometimes threaten or bribe a member of the jury.
  • In those situations it hardly seems fair that someone should profit from criminal actions done to evade justice.
  • In other situations where a repeat prosecution is requested because of incorrect rulings by judges such as whether evidence can be admitted or simply if the jury's decision itself should be overruled, or where new and compelling evidence has come to light, it does seem quite an expensive inconvenience to ask an accused to go through another trial. In such cases it might be fair to expect the state to pay for the accused's court costs, irrespective of the final verdict. However, giving someone a free pass for any crime, merely because they would otherwise be tied up in legal proceedings for a few months, does seem to be a lot of over-compensating for certain inconvenience caused, especially when we are talking about rape, child molestation, or murder.
  • In certain situations the decision whether there should be a retrial could ultimately lie at the discretion of the appointed authority. If the original crime is less than horrific, and if the accused has acted in good faith throughout the whole trial, then it might be deemed that in the interests of justice no further trial should be pursued.   

 

Once an accused has been acquitted why can't he be granted the relief of knowing he will never be tried again for that crime? Why, for the rest of his life, must he always live under the threat and fear of another prosecution?

  • One suspects that it is more likely the guilty acquitted that would be living under that fear. If, due to a coincidence of incriminating circumstantial evidence, you were an innocent accused and prosecuted for a crime and rightly found not guilty, would you really have that much fear of further prosecution? It's not like further evidence of your guilt is going to come forward, that you tampered with the jury, or that in a careless moment you confided to a friend that you did it.
  • Why is it that the psychological relief of the suspect is only considered? Doesn't the victim or the victim's next of kin deserve relief by knowing that the suspected perpetrator of the crime should never be granted immunity?

 

Shouldn't any reform be only effective from when it is introduced. Isn't there a legal principle that says laws cannot be backdated?

  • There is a very important common law principle of legislative prospectivity, which holds that someone cannot be prosecuted for an action that was legal at the time it was done. This is because people can't be expected to be able to look into the future and guess what society will declare tomorrow to be a crime.
  • This is definitely NOT that situation. Introducing any changes retrospectively does not alter the fact that on the day, the felon knew what he was about to do was a crime and yet he still did it. It would seem strange that society should owe him a free pass just because of changing procedural technicalities about how we prosecute crimes rather than changing what the crimes themselves actually are. Double jeopardy reforms in England, Wales and New South Wales have all been introduced retrospectively.

 

Would you like to see Victoria adopt the reforms recently legislated by the United Kingdom, New Zealand and those other Australian states?

  • It has truly been a welcome breakthrough that those jurisdictions have finally dispensed with the antiquated "principle" that once acquitted a suspect forever gets a 'free pass' on his crime. However to be frank, the reforms have fallen quite short of what might be held to be a reasonable person's expectation of justice. Nowhere is a judicial error of law a cause for a prosecution appeal despite the fact that it does justify an appeal by the defence. Despite any strong evidence of guilt that may be presented, judges in most jurisdictions possess a discretionary power to deny a retrial if, in their view, it would be "not in the interests of justice". With regards to the "tainted acquittals" options under English law (perjury, threatening or bribing a witness) there has not been a single successful application for a retrial in the twelve years since its enactment in 1996. In Queensland, criticism has arisen due to the fact that acquittals before the date of the new legislation cannot be revisited under any circumstances despite the fact that the controversial Queensland R v Carroll case was the instigator for most contemporary Australian reforms.
     

If the prosecution is repeatedly allowed to bring a suspect to trial they will sooner or later get a conviction.

  • Perhaps, but that is why the law never allows a prosecution to automatically proceed. As exists in current legislation, evidence must be presented to a committal court (or grand jury) that a prosecution could probably succeed before permission is given.  With regards to a repeat trial, reasons would have to be offered that this time a prosecution would have a reasonable chance of success. If the evidence presented is approximately the same as before and no error of law was shown to have occurred previously, then obviously (as the expectations could not be higher than before) there would be no reasonable chance of conviction, and no permission would be granted for a new trial.

 

Double jeopardy has been part of the law for 800 years.

  • Yes, much like for approximately the same time homosexuality was a crime, women were denied the vote and unable to partake in certain professions, torture was an acceptable method of interrogation, and the right religion was a prerequisite for public office.

 

Wouldn't it make the actions of the public prosecutors office and the police investigating crime   a bit sloppy in knowing that if they failed the first time they could always go back and try again.

  • There is no law that says a mechanic can only have one attempt at changing the piston rings on your car  motor, or a dentist only one attempt at root canal therapy, or a construction engineer one attempt to sink the pylons for a new bridge. Does this make all these professionals sloppy?
  • It doesn't further the careers of police investigators  or public prosecutors when they fail in their endeavours in very public ways.

 

Aren't you going too far when asking that, in certain circumstances, even more than one retrial should be allowed?

  • When your goal is simply equity in the law, it seems strange to be accused of going too far. Any person convicted of a crime not only has the right to appeal but (subject to reasonable arguments presented) has the right to as many appeals as he or she wishes to present. This is as it should be. Why then should the rights of the victim be looked upon as less worthy than that of a child molester or axe murderer?
  • Besides, you can not have a situation where once an accused gains an acquittal due to (for example, an incorrect judicial ruling on the admissibility of evidence), he would then know that he only has to manage to duck and dive through one more trial (due to perhaps threatening or bribing an alibi witness), to get permanent immunity from answering for his crime.  

 

Shouldn't there be some principle of finality in the law that says that once all the correct procedures of a trial have been followed and the duly authorised verdict is in, we should accept that and just move on?

  • Tell that to Captain Alfred Dreyfuss or Colin Campbell Ross (executed for murder in Victoria in 1922 but pardoned in 2008 due to overwhelming evidence proving his innocence.)

Rob Hulls

In 2003, when Ministers of the Australian Standing Committee of Attorneys General released a discussion paper proposing options for reform to the double jeopardy rule, then A.G. Rob Hulls said Victoria would not be rushing to abolish the long-standing “principle” of double jeopardy. In the seven following years, the Attorney-General was true to his word, maintaining Victoria's less than progressive position compared with New South Wales, Queensland, South Australia and across the Tasman, New Zealand.

One reason he has given to support his recalcitrance was published in the Melbourne Age (12th April 2003):

"(To) abolish the rule of double jeopardy will mean that a person accused of a crime will be perpetually considered a criminal even if acquitted,"

  • One wonders if the opposite wouldn't actually be the case.  Under the current law if an accused is acquitted after the judge made a mistake by incorrectly denying highly relevant evidence, wouldn't that be reasonable justification to perpetually believe that the accused might well be guilty? On the other hand, if double jeopardy were abolished, a new trial would be allowed and the matter could finally be settled. If, this time, an acquittal was brought in by the jury after all evidence was heard and no administration of justice offences occurred during the trial, there obviously would be no further cause to believe the accused was a criminal.

 

 

Law Institute of Victoria

On the 14th November 2008 the Victorian current affairs television show, Stateline, broadcast a segment on double jeopardy, questioning why Victoria had not followed the lead of most other Australian states in reforming this controversial law.
One of the identities interviewed by presenter Cheryl Hall was Tony Bourke, President of the Law Institute of Victoria. In defending the continuing application of this law he made the following comments.

“It's somewhat simplistic to talk about guilty people going free. If there are problems with the prosecution, the focus of attention should be on the deficiencies in the prosecution process, it should not be addressed by a change in the law which erodes long-established rights of people accused.”

  • To begin with, one wonders why it might be called simplistic. In Victoria those individuals  acquitted under controversial circumstances actually do go free, and while some of them may be genuinely innocent are we expected to believe that they all are?
  • Secondly, why should the focus of attention be on the alleged deficiencies of the prosecution process? When the guilty get acquitted the reasons extend much further than that of the occasional shoddy prosecution. Evidence no one would expect can come to light only after an initial trial; in an unguarded moment the accused can later confess his complicity; as in the case discussed on the program, a witness can later change her mind about giving evidence (the prosecution hardly has the right to torture people to force them to give the evidence they wish to hear); judges can incorrectly deny the admission of permissible evidence; and the court’s summing up for a jury can be held to be improper.
  • Finally, are we to believe that this law granting immunity to initially acquitted suspects, this “right”, should be maintained merely because it has been in existence for such a long time? According to An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown 1689 (the English Bill of Rights, established from the Bloodless Revolution of 1688), Protestants, but not Catholics, had the right to bear arms for hundreds of years. Also for approximately the same period men had the right, due to common law, to control the property of their wives. Was that sufficient reason to  maintain those laws in perpetuity?

 

“In our view, the greater good is served by having finality and certainty in the criminal justice system, so that people know that once they are dealt with, it's over. It's not in anyone's interest and not in the broader community interest for people to have hanging over them the prospect of serial prosecutions as new and improved technologies become available.” 

  • To begin with, the initial sentence is patently untrue. Once an accused is dealt with and found guilty, it is definitely not over. He or she is allowed appeals against the conviction for a myriad of reasons.
  • Secondly, it is certainly true that it is not in the accused’s interest, but why would it not be in the victim’s interest to have the prospect of further prosecutions hanging over the accused? Of all people, does not the one who actually suffered the initial crime desire justice to be served?
  • Finally, is it not in the interest of the broader community that crime should be prosecuted as vigorously as possible? Statistics show that burglary, drug trafficking, rape and child molestation are recidivist crimes. Where there is a probability of conviction, laws preventing further prosecution of any instance of these particular crimes can generally mean that sooner or later the statistics will be enhanced by yet another victim.

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Dreyfuss dishonourably discharged after a false conviction for treason