Page 2011 - Week 06 - Thursday, 9 June 2016
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Such an approach is warranted for an exception to such a longstanding and important rule as the rule against being tried twice, which serves to provide finality for the individual and prevents unceasing pursuit of an accused person by the state. The government has taken care to balance the human rights of an acquitted person with the fact that the double jeopardy rule may operate unfairly in certain circumstances.
To balance these concerns, the bill provides a range of safeguards. These include requiring ACT police to seek the approval of the DPP before investigating an acquitted person, which is the approach recommended by COAG and taken by all Australian jurisdictions, the UK and New Zealand. Investigation that does not directly involve the acquitted person does not require the consent of the DPP. For example, police can interview new or previous witnesses and compare already collected fingerprint or DNA samples with relevant databases without prior approval to do so. Police only require the consent of the DPP for investigations such as arresting or questioning the acquitted person, searching their premises or for any forensic procedure to be carried out on the acquitted person.
The bill also provides an urgency exception where police do not need to get DPP approval if the police officer reasonably believes urgent investigative action is needed to prevent irrevocable prejudice to the investigation and it is not reasonably practicable to obtain the agreement of the DPP before taking action. Clearly, these urgency exceptions would be quite exceptional in themselves.
The bill provides a deliberately high threshold for the prosecution to convince the Court of Appeal that a retrial should be ordered. For both the fresh and compelling evidence exception and the tainted trial exception, the prosecution can only apply for a retrial of the original trial once. The court must be satisfied that it is in the interests of justice to order the retrial, and certain information about the ordering of a retrial cannot be published to avoid prejudice by a jury in a retrial.
The third exception provided by the bill allows a person acquitted of an original offence to be prosecuted for an administration of justice offence which calls into question their original acquittal. In the case of Raymond Carroll, which was appealed to the High Court in 2002, the prosecution had sought to introduce evidence showing that the accused, who had been acquitted of murder, had in fact killed the victim in order to prove that he had committed perjury at the original murder trial. The prosecution sought to prove that the accused lied when he said, “I did not kill the victim.” This evidence directly contradicted the finding of not guilty and the acquittal in the original murder trial, and so it was held to be effectively retrying the accused, and as such was prohibited by the law at the time.
The government is of the view that this outcome was and is unjust. The bill addresses this potential injustice in its third exception to the rule of double jeopardy. This exception will only apply to fresh evidence and will not affect an accused person’s right to not be compelled to testify against himself or herself.
The United Kingdom has had two successful retrials since providing a fresh and compelling evidence exception in 2003. The first was in 2006 where the Court of Appeal gave consent for William Dunlop, who ultimately pleaded guilty, to be retried
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