What is Wrong with this Ancient Law

The problems with the existing Victorian law known as double jeopardy are more than just letting criminals walk. To begin with not only does it violate the bedrock of our legal system, the rule of law, by not treating all people before the courts equally, but in creating opportunities for felons to escape answering for their crimes, it diminishes the general public's respect and support for the judicial system as a whole.

Let us first however look at the law as it currently exists in Victoria.

Double Jeopardy as it Now Stands

The law in Victoria on appeals after an acquittal of a criminal prosecution.

  • Section 394 of the Crimes Act 1958 provides:(subject to the 2011 C.P.A Act as below)

    "In any plea of autrefois acquit or autrefois convict it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted (as the case may be) of the said offence charged in the indictment or presentment."

  • Section 26 of the Victorian Charter of Human Rights and Responsibilities Act 2005 states that: (this s.26 invalid until 2016, due to section 31 of this Act being complied with)

    "A person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law."

  • Common Law (subject to the 2011 C.P.A. Act  as below)

    In R v Carroll (2002) 213 CLR 635: [2002] HCA 55  the High Court confirmed that at common law a person acquitted in a criminal trial cannot be subsequently prosecuted for perjury if the facts needed to prove the perjury offence are in essence the same as those presented in the original trial. That ruling applies throughout Australia.

  • Chapter 7A of the Criminal Procedure Act 2009, as amended by Section 17 of the Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act of 2011

    The DPP may apply to the Court of Appeal to set aside the previous acquittal of the accused, or remove the previous acquittal as a bar to an initial prosecution for an administration of justice offence.(327H)

    However no application will countenanced where the belief of the suspect’s guilt is associated with any of the following circumstances#:

  1. the trial judge made, or is believed to have made, a mistake on the admissibility of compelling evidence.
  2. the trial judge made, or is believed to have made, a mistake on the directions he/she made to the jury.
  3. jury tampering (bribery or threatening harm) is evident beyond a reasonable doubt, but no conviction of said crimes can be made for practical reasons. (327D(a)) (The person responsible may be an associate of the accused and had acted on his own initiative and has since died, gone into hiding, or left the jurisdiction) 
  4. witness tampering (bribery or threatening harm) is evident beyond a reasonable doubt, but no conviction of said crimes can be made for practical reasons.(327D(a))
  5. the evidence to be presented by the DPP is not new even though it has never been presented to a jury.(327C(1)(a)(ii))
  6. there is fresh and compelling evidence of guilt of the original crime but a repeat trial has already been allowed.(327H(3))
  7. someone has been convicted of an administration of justice offence which is believed to have led to a tainted acquittal at the original trial, but a repeat trial on fresh and compelling evidence has already been allowed. (327J)
  8. there is fresh and compelling evidence of guilt of the original crime but the police or prosecution have not acted with due diligence in applying.(327M(c)(ii)
  9. there is fresh and compelling evidence of guilt of the original crime but there has been a substantial (not defined) length of time since the original alleged offence.  (327M(c)(i)
  10. the crime the suspect is charged with is only* rape, aggravated burglary or armed robbery where torture, serious injury to the victim or serious threats of harm did not occur, or crimes of lesser harm.(327M(2)
  11. where the original acquittal was tainted due to an administration of justice offence, the penalty of the original crime is less than a level 4 punishment  (15yrs).(327L(a))
  12. any other matter that the court itself may declare is relevant.(327M(1)(d))


# This is not the actual quoted wording of the act. For clarity the meaning of the act has been condensed into this one segment.

*The word “only” is not used in the legislation. The act states the crimes whereby an appeal is allowed subject to other prerequisites. For simplification, describing the act from the severity of certain crimes down is worded this way. Considering the meaning of the legislation, it is hard not to see that the concept “only” is meant even if the drafters of the legislation did not use that term.

The Problems with Double Jeopardy

1. Criminals Walk
 Even though we do not know which of those the state would like to re-prosecute are guilty and which are actually innocent, it would be extremely naive to believe that no felons slip though the cracks. Even defenders of the double jeopardy law admit that "the price to pay" is the occasional malefactor escaping justice.

2. The Rule of Law
It is an important part of the judicial system that impartiality exists in all civil and criminal procedures. The court looks at both sides with equal favour. The symbol of justice in most English speaking democratic countries is Justitia, the Roman goddess of justice,  holding the sword and scales while being blindfolded. The blindfold implies that she is not to be influenced by the appearance or circumstances of any one side. As one adage of the Rule of Law prescribes, "all people are equal under the law". After a criminal conviction the defendant always has an ongoing fundamental right to appeal his or her conviction. This is as is it should be. It therefore seems highly questionable to hold as a principle that one party to a judicially convened court hearing always has a right to appeal the decision made, but the other party only does in limited circumstances.

3. Not just done, but be seen to be done.
It is one thing for investigating authorities not to have any leads as to who may have committed a recent crime. It is quite another for them to have full confidence in knowing who the perpetrator is, but yet to be hamstrung in most instances by an anachronistic centuries old law from any further prosecution.

"... it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."
Lord Chief Justice Hewart in R v Sussex Justices Ex parte McCarthy [1924] 1KB 256 at 259

4. Respect for the Law
Possibly the most important bulwark of any criminal justice system is our confidence in it.  This confidence can only be shaken whenever we hear the term "getting off on a technicality": those using the rules to their advantage in an exploitation of inadequate contemporary evidence, perjury or judicial errors of law to evade ultimately answering for their crimes.

5. Unequal pressure on judicial decisions.
As legal scholar Larry Laudan has held, it would seem reasonable to suppose that trial judges would prefer not to have higher courts reverse too many of the decisions they make during their trials. A judge whose decisions are regularly overturned on appeal probably will be perceived by his peers as less than fully competent. Given this, it becomes significant that virtually no trial rulings made favouring the defendant will be appealed (as nothing will come of it) but that rulings favouring the prosecution will obviously be given serious consideration if it will give the defence an opportunity to appeal a conviction.
This is not to imply that all judicial decisions are driven by craven self interest where otherwise the decision would be clear in any given area. However many trials involve motions calling for rulings that are close calls or borderline cases, where a plausible argument can be made for ruling one way or the other. In those circumstances would it not be a surprise to find a pattern of judicial rulings in favour of the defendant and, not coincidentally, of the sort that would seldom be overruled on appeal?
Laudan, Larry, Truth, Error, and Criminal Law: An Essay in Legal Epistemology, Cambridge University Press, New York, 2006, p.205.

6. The Law is not a Game
Most people do not believe justice should be viewed as a game where if one plays it correctly and manages to carry the ball a certain distance, ducking and diving so as not to be tackled, there then will be goal posts of sanctuary from further prosecution.

7. Sanctuary for Criminals?
It seems incredible that in the twenty-first century, society should maintain a system in which people highly suspected of committing crimes are able, due to technical reasons, to walk freely amongst us.  Unless society is getting something substantial in return, how can anything justify state sanctioned immunity for criminal activities.

the Rule Of Law stops here - Geoff Pryor

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