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DOUBLE JEOPARDY

DOUBLE JEOPARDY. Caitlin Comensoli . The Issue. Double Jeopardy is the long standing legal principal that no person should be tried or punished twice for the same offence. It has been part of Common Law for over eight centuries

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DOUBLE JEOPARDY

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  1. DOUBLE JEOPARDY Caitlin Comensoli

  2. The Issue • Double Jeopardy is the long standing legal principal that no person should be tried or punished twice for the same offence. • It has been part of Common Law for over eight centuries • In recent years there has been fierce debate over whether double jeopardy is a timeless principal or if it is a weakness in our justice system allowing the guilty to walk free

  3. History • 2005 Blair government ends Double Jeopardy in the UK following the case of Stephen Lawrence. Reignites debate within Australia • Stephen Lawrence was stabbed. Three youths were charged, but due to insufficient evidence found not guilty and acquitted. It was revealed that the original investigation was rife with lost opportunities and omissions. Due to double jeopardy the three youths could not stand trial again

  4. 2000 Outcry over the R vs Carroll case • Carroll was charged for the abduction, sexual assault and murder of Deirdre Kennedy and found guilty. Queensland Court of Criminal Appeal overturned this ruling due to insubstantial evidence. In 1999 new evidence found supporting his guilt. Police charged Carroll with perjury, but after being found guilty Carroll appealed the verdict and was acquitted based on the principal of Double Jeopardy • Call for Double Jeopardy to end

  5. Reforms undertaken to address the issue • In 2006 NSW ends Double Jeopardy • NSW Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 No 69 • In 2007 QLD ends Double Jeopardy • QLD Criminal Code (Double Jeopardy ) Amendment Act 2007 • In 2008 SA ends Double Jeopardy • SA Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 • Within these three states retrial is now permitted for life sentence offences if there is ‘new and compelling evidence’ or if it proven there was an ‘administration of justice offence’

  6. ‘Administration of the course of justice offence’ • Administration of justice offence means any of the following offences: • (a) bribery of, or interference with, a juror, witness or judicial officer, • (b) perversion of (or conspiracy to pervert) the course of justice, • (c) perjury. ‘New and Compelling evidence’ • Evidence is fresh if: (a) it was not adduced in the proceedings in which the person was acquitted, and (b) it could not have been adduced in those proceedings with the exercise of reasonable diligence. • Evidence is compelling if: (a) it is reliable, and (b) it is substantial, and (c) in the context of the issues in dispute in the proceedings in which the person was acquitted, it is highly probative of the case against the acquitted person.

  7. INDIVIDUAL Vs. SOCIETY

  8. Society • Guilty criminals go free • Double Jeopardy Reform Australia argue; • victims should have the same right to appeal as defendant • new evidence should be accounted for • Unfair if criminal get acquittal through perjury or bribing • The Chief Justice in Queensland • “Where recent DNA evidence puts guilt beyond not only reasonable doubt, but any shadow of doubt it seems just to retry the accused”

  9. Individual • Loss of protection from the power of the state • Leads to the persecution of the innocent • Works against, not for justice

  10. Individual vs Society INDIVIDUAL Protection of the individual is paramount

  11. Problems with Effectiveness University of NSW Council for Civil Liberty • Increased risk of convicting the innocent; • The more you face trial = higher chance of being pronounced guilty. • State has unlimited resources = inequality, state has resources to prove guilt,the individual has none to prove innocence • Re-trial works on presumption of guilt

  12. Justice McHugh • “ interference with the Rule leaves open a real risk that media outrage following acquittals will lead to retributive second prosecutions.�” • Result in trial by media

  13. A loss in the attainability of justice & An ineffective legal system Risk of presumption of guilt Serious inequalities between state and individual Threat of trial by media = Limited effectiveness for society should NOT be at the cost of innocent individual’s liberty

  14. Problems with Efficiency • Loss of finality • it can never be assumed that justice has been reached. • Every case can be re-opened, no case ever ends. • Law is retrospective = increase in litigation

  15. Queensland Law Society President, Rob Davis • May encourage substandard policing • Laziness amongst investigators will occur as aware they can apply for re-trial • Increase in litigation • Increase in Court Cases • summary hearings to decide if evidence is ‘new and compelling’ or if an ‘administration of justice offence’ has occurred. • Full trials also may occur • Results in more time and money for individual and society

  16. Society gains incrementally Individuals risk liberty and wellbeing More time, more money. The legal system is both inefficient and ineffective in achieving justice for society and most certainly in achieving justice for the individual.

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