Page 2010 - Week 06 - Thursday, 9 June 2016
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
except the Northern Territory have passed parallel laws and also an exception where there is fresh and compelling evidence of guilt.
The Standing Committee of Attorneys-General referred the issue of double jeopardy to the Model Criminal Code Officers Committee and to consider possible reforms that would mitigate any injustices flowing from a strict operation of the double jeopardy principle. In 2007 the Council of Australian Governments agreed to the Model Criminal Code Officers Committee recommendations. At that time, Victoria and the ACT reserved their positions on them.
The Model Criminal Code Officers Committee report included recommendations to allow retrial following an acquittal where there is fresh and compelling evidence of guilt, where the trial has been tainted by, for example, perjury or interference with a witness, and where a prosecution is sought for an administration of justice offence that calls into question the original acquittal.
While the agreed COAG model and the Model Criminal Code Officers Committee report on which the model is based have been used as a starting point by the ACT in developing this bill, we have adopted for a different approach where that has been appropriate.
The agreed COAG model, for example, provides that the fresh and compelling evidence exception should apply to offences with a maximum penalty of 15 years’ imprisonment or more and apply retrospectively. The government has decided to apply this exception only to offences punishable by life and to not apply it retrospectively, that is, it will only be available in relation to acquittals that take place after the commencement of these amendments.
The government sees the threshold of life imprisonment as a way of ensuring that only the most serious offences can be retried following an acquittal. This is appropriate where the law is allowing something as exceptional as the retrial of a person who has previously been acquitted.
The prospective application of the fresh and compelling evidence exception will, for some, be controversial, as would be the decision to apply the exception to past acquittals. There are sound arguments for either approach. The government has decided to apply the exception prospectively. Although application to past acquittals would not strictly have the effect of changing the law before the legislation commences, it nevertheless amounts to a change to the substantive rights of a person based on a past action.
The distinction between the fresh and compelling evidence exception and the tainted trial exception, which does apply to past acquittals, is that in the case of a tainted trial it is clear that a valid trial did not occur in the first instance, and so the trial should happen again. It is much clearer that an injustice has occurred.
In the case of fresh and compelling evidence, the accused is deserving of greater protection as the original trial may have been entirely valid with no intentional interference by anyone and yet compelling evidence that was not available at the time of the trial has subsequently become available.
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video