Bennetts, Steven

Lincoln, RA

English

The term 'jeopardy' generally means putting yourself in danger, at risk, or facing some kind of peril. In the law the rule of 'double jeopardy' generally means that a person who is acquitted at one trial should not be in danger of being tried again for the same crime. This rule has been a fundamental principle of most criminal justice systems, especially those based on the common law. Of course there does exist in Australia the possibility of being tried twice where a person who has been acquitted in a criminal court could face a civil court over the same criminal event. The most well-known example of this comes from the USA, where famous footballer and movie celebrity OJ Simpson was acquitted of the murder of his wife Nicole Brown Simpson and acquaintance Ron Goldman in the 1990s, but was later found liable for their deaths in a civil suit

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Bond UniversityResearch RepositoryShould the double jeopardy rule be in jeopardy?Lincoln, RA; Bennetts, StevenPublished in:National Legal EaglePublished: 01/01/2003Document Version:Publisher's PDF, also known as Version of recordLink to publication in Bond University research repository.Recommended citation(APA):Lincoln, RA., & Bennetts, S. (2003). Should the double jeopardy rule be in jeopardy? National Legal Eagle, 9(2),11-13.General rightsCopyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright ownersand it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights.For more information, or if you believe that this document breaches copyright, please contact the Bond University research repositorycoordinator.Download date: 10 May 2019Should The Double Jeopardy Rule Be InJeopardy?Assistant Professor of Criminology Bond UniversityRobyn Lincoln and Steven Bennetts Bond UniversityMasters of Criminology StudentWhat is the double jeopardy rule?The term ’jeopardy’ generally means putting yourself indanger, at risk, or facing some kind of peril. In the law therole of ’double jeopardy’ generally means that a person whois acquitted at one trial should not be in danger of being triedagain for the same crime. This rule has been a fundamentalprinciple of most criminal justice systems, especially thosebased on the common law.1 Of course there does exist inAustralia the possibility of being tried twice where a personwho has been acquitted in a criminal court could face a civilcourt over the same criminal event. The most well-knownexample of this comes from the USA, where famous foot-bailer and movie celebrity OJ Simpson was acquitted of themurder of his wife Nicole Brown Simpson and acquaintanceRon Goldman in the 1990s, but was later found liable fortheir deaths in a civil suit.2The origins of the double jeopardy rule are in Roman andGreek law but it gained more widespread use under 12thcentury English law. At that time there were two differentcourt systems - one ecclesiastical or church-run and theother the king’s court - and there was concern about whethersomeone convicted in the church-run court could subse-quently be tried in the king’s court. By the middle of the fol-lowing century the principle of double jeopardy hademerged to mean that a defendant could only be prosecutedonce, no matter what the verdict.3What are the moves to change thedouble jeopardy rule?This notion of double jeopardy is now being challenged inAustralia, even though it has not been on the public agendafor change in hundreds of years. The debate has beensparked by some high-profile cases in Queensland where anaccused person has been acquitted of a serious crime yetdoubts have been voiced about the verdict. The most impor-tant of these involves the case of Raymond Carroll who wasoriginally convicted of the murder of toddler, DeidreKennedy. The 17-month-old child was taken from her bed,sexually assaulted and her body thrown onto the roof of atoilet block in a park in Ipswich in 1973. The original mur-der conviction was overturned by the Queensland Court ofAppeal in 1985 and under the double jeopardy role, MrCarroll could not be tried again for Deidre’s murder.However, new forensic evidence prompted theDepartment of Public Prosecutions to charge Mr Carrollwith perjury in 1999, claiming that he had lied to the court inthe original murder trial. The conviction for perjury was alsooverturned by the appeal court noting that Mr Carroll was inessence being tried twice for the same crime. An appeal tothe High Court of Australia was unsuccessful and so MrCarroll cannot be tried again in relation to this murder case.In Queensland there has been considerable debate about thiscase and the appropriateness of the double jeopardy rule.The toddler’s mother, Mrs Faye Kemaedy, has now collectedover 25,000 signatures on a petition to the state’s Attorney-General to ask for the rule to be set aside because of theexceptional circumstances in this case. The Attorney-General, Mr Rod Welford, has called for a nalion-wideapproach to the problems caused by the double jeopardyrule.4Other political leaders have spoken out about the prob-lems associated with the case and double jeopardy. In NewSouth Wales, Premier Bob Cart, has called for reform to thiscenturies-old rule. While his government acknowledges thatthe double jeopardy rule is fundamental to the criminal jus-tice sy’stem and that innocent people should not be subject tocontinual harassment by the law, they also have stated that’civilised societies should seek to stop murderers getting offscot-free’. The NSW Attorney-General however has notedthat there would be no cases that wouid be re-opened ifchanges in the rule were to occur.5 More recently theStanding Committee of the Attorneys-General whichinvolves the chief lawmakers from all states and territories -has discussed changes to the double jeopardy rule and isBond University School of Law proudly supports the National Legal Eagle 111Lincoln and Bennetts: Should the double jeopardy rule be in jeopardy?Published by ePublications@bond, 2003expected to report on their review by August this year.Similar debate has occurred in the United Kingdom where agovernment White Paper Justice ForAll in 2002 proposed tochange the double jeopardy rule, but this is yet to be passedby parliament.In all the above public debate, no-one has yet been rec-ommending a total abandonment of this principle. In generalthe Australian proposals are similar to those outlined in theUK govertmaent white paper. They involve stone refine-~nents to the rule rather than its complete abolition, so thatspecial exceptions for another trial would be:¯ made only for serious crimes of violence such as murder,manslaughter, gang rape or severe drag trafficking;¯ permitted only once and therefore the case would not beleft opan-ended;¯ made by the public prosecutor to the court of criminalappeal and it is the appeal court that would grant permis-sion;¯ based on the requirement of having ’fresh’ or new evi-dence that would not normally have been available for thefirst trial;¯ allowed only where the new evidence was very strong orcompelling to avoid harassment of those previouslyacquitted.7Why should the double jeopardy rulebe changed?There appear to be three main factors prompting calls forchange to this 800-year old role.1. Recent advancements in the forensic sciences may pro-vide the kind of new evidence that would warrant a caseto be re-tried. For example, DNA testing is now quitesophisticated and relatively inexpensive. It can be usedon very small or even degraded samples and such retest-ing of old evidence may shed new light on an investiga-tion. As these new forensic ~nethods continue to improvethey may offer evidence that would not have been avail-able at an original trial.2. Improvements in police investigation techniques, such asthe use of criminal profiling methodologies, haveprompted the re-examination of what are called ’coldcases’. Many police forces around the country now havespecial units that are re-examining past serious crimesthat have never been solved. It may be that the examina-tion of these old cases might reveal the need to try anindividual again for the same crime.3. There has also been significant attitudinal shifts in thecfi~ninal justice system to take more account of the roleand needs of victims of crime. Trials can fail and anaccused can be acquitted for many reasons, and it isthought that such an outcome may not afford protectionto victims of crime (as in sexual assault cases) and doesnot provide comfort to the secondary victims of crime.Victims of crime, through voluntary and government-funded organisations, now have a greater voice in justiceprocesses.Why should the rule not be changed?There are many reasons for maintaining the doubie jeop-ardy rule, but here we have isolated three that we believe areimportant.1. The criminal justice system operates on a principle offinality that once acquitted of a crime or once a personhas done their time, then the agencies of the law cannotcontinue to harass that person. Tiffs is particularly impor-tant in an adversarial system where trials are expensiveboth to the state and to the defendant.2. It is possible that the scrapping of the protection that thedouble jeopardy rule offers may encourage poor policeinvestigation methods. All avenues of investigation andall evidence gathering may not be as thorough ff the ruleis changed because it provides at least one more opportu-nity to send a person to trial. This may discourage inves-tigative and prosecutorial efficiency.3. The other principles of justice - fairness and impartialitymay suffer ff the double jeopardy rule is changed. Forexample, if the revised rule applies to relatively high pro-file serous crimes then it is likely that there will be sig-alficant media and public attention focused on theaccused. This may make it difficnlt to secure impartialjuries and to ensure fairness in the process when there hasalready been a ’dress rehearsal’ for the trial.In Britain the law reform commission has raised sinfflararguments against changes to the rule. Their opposition isthat there may be ’the risk of wrongful conviction; the dis-tress of the trial process; the need for finality; and the needto encourage efficient investigation’ .8RecommendationsIt is our view that there is currently no great need to makechanges to this ancient role. However, we do concede thatthe law, the criminal justice system and its processes shouldbe flexible and responsive to social and cultural changes andtherefore need to be continually updated and moderhised.So, we are not opposed to law reform per se, but rather thatthere seems to be no compelling argument for change to thedouble jeopardy rule at this time for a number of reasons.First there is a lack of empirical evidence to show howmany cases might be affected by the possible changes andwhat the impact might be. Indeed, as noted above the NSWAttorney-General claims that there are no such cases in hisstate, and perhaps only three that have been discussed inQueensland. The argument therefore that there are only ahandful of cases that would be affected is not a strong onefor it implies that there is no real need for reform.Secondly, while it is athnirable that the current proposalsare only meant to be applied to serious crimes tbat wouldusually attract ’natural life sentences’ this leaves out manyoffence categories where serious harm may be done to thevictims where a conviction is not secured. Such crimesinvolve sexual assault (where currently only gang rapesmight be included in the changed rule) and armed robberieswhich are serious crimes of violence. This kind of approachengenders bias by creating a two-tier system.9 And, as wedon’t yet have the details it is not clear exactly which crimesthe revised rule would apply to.A more pressing problem is that this legal change is likelyto be retrospective. This means that it has the potential tocontravene human rights conventions. For if the finalityprinciple ’is to be revoked by a inew evidencei exception tothe double jeopardy prohibition, every person still alive whohas ever been acquitted of a serious offence, or is tried andacquitted in the future, will lose a freedom hitherto enjoyedby right’. 10A further problem is that it is very difficult to defineexactly what new and compelling evidence might be. What12 Bond University School of Law proudly supports the National Legal Eagle2The National Legal Eagle, Vol. 9 [2003], Iss. 2, Art. 5http://epublications.bond.edu.au/nle/vol9/iss2/5would happen if some alleged fresh and certain evidencewas permitted to be placed before a jury at a second trial andthat jury still acquits. Would justice have been seen to beserved by either side - those who betieve the person to beguilty and those on the defendant’s side who have had toendure two trials with acquittals in both cases?Instead of reform only to the double jeopardy rule, wewould recommend a system that addresses both wrongfulacquittals and wrongful convictions. It is suggested that inAustralia we shmdd estabfish a Criminal Cases ReviewCommission like that set up in the UK. However, it woulddiffer in that it could deal with cases where an allegedwrongful acquittal has been granted and thereby seek a sec-ond trial because of exceptional circumstances. This couldbe done without massive and complex changes to the rule ofdouble jeopardy, in this way the human and legal rights of alldefendants would be granted protection.Questions for Debate:In what circumstances do you think the double jeop-ardy rule should be ignored?Do you think the double jeopardy rule is fundamen-tally a good rule?ReferencesAckland, R. (2003) Backward step follows advances,Sydney Morning Herald, 15 March.Dennis, I. (2000) Rethinking donble jeopardy: justice andfinality in criminai process, Criminal Law Reports, 933-951.Farrar, D. (2003) Double-jeopardy caution required,Canberra Times, 24 April.Findlay, M., Odgers, S., & Yeo, S. (1999) AustralianCriminal Justice, Oxford University Press, Melbourne.Fitzpatrick, B. (2003) Double jeopardy: one idea and twomyths from the Criminal Justice Bill 2002, Journal ofCriminal Law, 67(2).Hatzistergos, J. (2002) Hansard Extract, NSWLegislativeCouncil, 10April, 13439.Hunter, J. (1984) The development of the rule againstdouble jeopardy, Journal of Legal History, 5.Jones, T. (2003) Transcript of interview: Debus outlinesjeopardy law reform, LatelineABC, 10 February.Lopez, D.A. (2000) Twice for the same: how the dual sov-ereignty doctrine is used to circumvent non bis in idem,Vanderbilt Journal of Transnational Law, 33(5).Pentony, E, & Rice, S. (2003) When the story ends, closethe book: discussing the double jeopardy role, OnlineOpinion, 21 May.R v Carroll (2001) QCA 394.Roberts, E (2002) Justice for all? Two bad arguments(and several good suggestions) for resisting double jeopardyreform, International Journal of Evidence and Proof 6(4).Ross, J. (2002) Damned under any heading: the problemof multiple punishment, American Journal el’Criminal Law,29(2).Watt, A. (2003) No jeopardy on mum’s smile, CourierMail, 11 June.1 l~oberts 2002; Hunter 19842 Findlay Odgers & Yeo 1999; Ross 20023 Hunter 1984; Ackland 2003; Lopez 2000; Pentony & Rice 20034 R v Carroll 2001 ; Watt 20035 Hatzistergos 2002; Jones 20036 Dennis 2000; Fitzpatrick 20037 Hatzistergos 20028 Roberts 20029 Farrar 200310 Roberts 2002:216Bond University School of Law prou~lly supports the National Legal Eagle 133Lincoln and Bennetts: Should the double jeopardy rule be in jeopardy?Published by ePublications@bond, 2003

Should the double jeopardy rule be in jeopardy?

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Should the double jeopardy rule be in jeopardy?

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