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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.


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.


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.

A “one off” re-trial promise is not worth the legislation it is written into. Politicians can and do change the laws to suit voting needs. Law and order issues are a fertile field for vote-shopping.

Where does all this place justice for the accused person? If a court acquits them, they should be entitled to get on with their life, not to have the spectre of retrials hang over their heads for the rest of their lives.

Throwing out the double jeopardy rule should not become a signal for lazy policing or a slapdash prosecution in the knowledge you could have another go at the defendant later.

Historically, justice has been served by the double jeopardy principle even though there will always be rare examples where it may have worked in a defendant’s favour. We don’t condone that, but criminal defence lawyers say we should not rush into reforms unless they are carefully thought out.

If we throw out double jeopardy you can expect trials to become even more complex and prolonged. It will become a defence strategy not just to win the case now but to shut the door on potential re-trials.

The prosecution will also have to ensure its records and samples of evidence are meticulously stored, if they plan to have another crack at the defendant years down the track. Shoddy record-keeping or incomplete evidence will be seized on by the defence. All of this will complicate our justice system, not help it.

Unfortunately our justice system is no longer balanced around the states. In Queensland you cannot be tried again for a crime if you have been acquitted. In New South Wales, you can be re-tried after acquittal for a serious crime.

While New South Wales is the first state to scrap double jeopardy, it may encourage other states to copy the move. The state and territory leaders, meeting at the Council of Australian Governments in July, agreed to establish a committee to review double jeopardy laws.

A Queensland stance on the issue has been somewhat complicated by a procession of Attorneys-General in recent years. Rod Welford, who in 2005 rejected the idea, later handed his portfolio to Linda Lavarch who on October 18 resigned, due to ill health exacerbated by the Dr Patel surgical scandal at Bundaberg.

Rod Welford stepped back into the portfolio, but only for little over a fortnight before Premier Peter Beattie appointed new Minister and former solicitor Kerry Shine as the new Queensland Attorney-General. So the double jeopardy issue now rests on Mr Shine’s shoulders and he can expect vigorous lobbying from both the pro and anti double jeopardy factions.

One immediate area of the concern is that the New South Wales decision means Australia no longer has a level playing field in its approach to trials for serious crimes.

Under the system we have now, a person could be charged with murder in NSW, acquitted, but re-tried if the prosecution claims some new and compelling piece of evidence has emerged. Elsewhere, the same person, acquitted of the same crime, cannot be re-tried for it.

Queensland does not need to go down this path. The current system works well and does not need change.

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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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