Page 1569 - Week 05 - Thursday, 5 May 2016
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exceptions are expected to be extremely rare in the ACT, it is important to have a mechanism to address such an injustice if it does occur. The bill, therefore, will allow a retrial where a person has been acquitted and, after the acquittal, fresh and compelling evidence comes to light that indicates the person has, in fact, committed the offence.
Such cases would be rare. However where such evidence arises it undermines the integrity and therefore the legitimacy of the acquittal. This, in turn, undermines the validity of the criminal justice system and public confidence in it. For example, currently in the ACT an acquitted person could publicly state that they had committed the crime for which they had been acquitted and yet the acquittal could not be challenged despite that statement. Similarly, new forensic evidence could come to light which points clearly to the acquitted person as the offender, yet such evidence could not be used to challenge the acquittal and seek a retrial.
The bill ensures the rule against double jeopardy is affected only as far as absolutely necessary. In particular, the only offences that can be retried under the fresh and compelling evidence exception are the most serious, punishable by imprisonment for life. This includes only murder and serious drug offences involving large commercial quantities. Further, evidence must be fresh and compelling to meet the threshold for a retrial.
Evidence is fresh where it is not tendered in the original trial and could not have been tendered in the course of an exercise of reasonable diligence. In other words, the amendments do not allow a second bite for the prosecution because it did not get the first prosecution right. To meet the compelling test, the fresh evidence must be reliable, substantial and highly probative of the guilt of the acquitted person.
The bill provides other safeguards for this exception. Firstly, the court must be satisfied it is in the interests of justice to order a retrial. Secondly, the Director of Public Prosecutions must give approval to ACT Policing for any reinvestigation. Thirdly, there would be a restriction on publication of information about the court ordering a retrial to address the risk of a jury being prejudiced by that information.
With respect to the tainted trial exception to the rule against double jeopardy, the court can only order a retrial where a serious administration of justice offence was committed, such as perjury, corruption of jurors or witnesses or the destruction of evidence. Furthermore, a retrial can only occur where it is more likely than not that, but for the commission of the administration of justice offences, the acquitted person would have been convicted of the original offence. This exception only applies to serious offences—those punishable by 15 years imprisonment or more.
The bill also provides very similar additional safeguards to those for the fresh and compelling evidence exception around the interests of justice, DPP approval for reinvestigation and restriction on publication of information. Despite the fact that these circumstances arise very rarely, the tainted trial exception is important as public confidence in the justice system would be seriously undermined if it became clear that a person had been acquitted of a serious offence because of a trial that has been marred by a serious administration of justice offence.
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