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Danger in abolishing double jeopardy rule

By Michael Bosscher - posted Friday, 10 November 2006


The New South Wales Government’s scrapping of the historic double jeopardy rule of law has thrown the Justice system in Australia into uncertainty.

Double jeopardy - an 800-year-old rule which prevents people being tried twice for the same crime - no longer applies in NSW, and there is pressure for Queensland to follow this example.

It is crucial for Queensland’s Attorney-General to resist any moves for the state to emulate the New South Wales decision, because it seriously erodes one of the most cherished foundations of our justice system.

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Tinkering with the longstanding double jeopardy rule is a formula for disaster. The idea that acquitted people can be tried again, if new and compelling evidence emerges, is merely a shortcut to prosecutors seeking unlimited re-trials until they get the verdict they want.

In New South Wales, double jeopardy no longer applies to serious crimes such as murder, manslaughter or gang rape carrying a sentence of 20 years or more.

Unfortunately laws made by politicians can be amended later when further pressure is placed on them to get tough on crime, a standard vote-catching issue in every state. Having abandoned the double jeopardy rule for some cases, it would take little pressure for the politicians to scrap the rule for any and all criminal matters and allow open- ended retrials.

It’s not about a fair system of justice, it’s about what might appeal to the voter. “Modernising” the principle is fraught with potential risks for abuse.

If a person accused of a serious crime is acquitted, they are entitled to have some certainty in their future. The double jeopardy principle gives them that. If you take that away, we could see a situation where the prosecution can’t prove its case, and has another go, and another, until they get the decision they like.

Advances in science, especially in DNA technology, might yield new evidence for previously tried cases, but I fear this could only lead to endless re-trials, and an acquittal would mean nothing.

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How many times could an acquitted person be re-tried for the same offence? If you throw out an 800-year-old legal rule, then you can change the laws again and again, allowing additional retrials, all in the name of considering new evidence provided through scientific advances.

And amid all this reform, is there a “best before” cut off date for when people can be re-tried? If not, we could see cases where new evidence “emerges” 10 years after the trial and the acquitted person is suddenly yanked back into the dock - their lives thrown into chaos and uncertainty again. Jobs in doubt. Family stressed. Unexpected costs. Lives in limbo.

In other words, has anyone in the legislative field actually thought this issue through? I fear they have not.

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About the Author

Michael Bosscher is managing partner of Brisbane-based national criminal defence law firm Ryan & Bosscher Lawyers.

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