The meaning of the rule
The rule against "double jeopardy" means that a person cannot be tried for an offence if he or she has already been acquitted or convicted of the same offence at a previous trial.
The Standing Committee of Attorneys General (SCAG) has agreed to ask a committee of experts to review the rule. This was at the initiative of the Queensland Attorney General, after the NSW Premier Bob Carr made it an election issue earlier in the year.
Current proposals to review the rule against double jeopardy focus on the fact that after an acquittal, fresh evidence might come to light that could have led to a conviction if it had been available at the trial. Concerns about this possibility seem to have been highlighted by the availability now of DNA evidence.
Double jeopardy is recognised as an important principle of justice in international human rights law. Article 14(7) of the International Covenant on Political and Civil Rights (ICCPR) is clear in its prohibition of double jeopardy: no-one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
The Human Rights Committee, in its General Comment 13, noted the clear distinction between the permissible resumption of a trial because of exceptional circumstances, and the prohibition against a re-trial in Article 14(7).
The Australian High Court
The Australian High Court has considered the rule against double jeopardy quite recently.
In Pearce v. The Queen , the Court stated that the expression was not always used with a singular meaning: sometimes it was used to encompass the wider principle that no-one should be punished again for the same matter.
But The Queen v. Carroll  stated that many aspects of the rules that are lumped together under the title "double jeopardy" find their origins in the recognition of two principles. The first is that without safeguards, the power to prosecute could be readily used by the Executive as an instrument of oppression. The second is that finality is an important aspect of any system of justice.
The Queen v. Carroll stated that there are four considerations:
- the imbalance of power between the prosecution and the accused;
- the seriousness for an accused of conviction;
- prosecution as an instrument of tyranny; and
- the importance of finality.
They said that beyond those considerations, at the very root of the criminal law system, lies the recognition by society that some conduct is to be classified as criminal and that those who are held responsible for such conduct are to be prosecuted and, in appropriate cases, punished. But to pursue what is thought to be the objectively correct outcome of criminal proceedings is inconsistent with finality (paragraph 49).
McHugh J. noted (paragraph 128) that the policy considerations for the rule against double jeopardy go to the heart of the administration of justice and the retention of public confidence in the justice system. The rule protects against the unwarranted harassment of the accused by multiple prosecutions.
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About the Authors
Paul Pentony is a Melbourne-based lawyer who has appeared in many criminal and civil cases in the State and Federal jurisdictions. He is currently a spokesman for Amnesty International and has addressed community groups about the Amnesty's role in the protection and promotion of human rights internationally.
Associate Professor Simon Rice OAM is the Director of the Law Reform and Social Justice ANU College of Law at the Australian National University. He has been Director of the NSW Law and Justice Foundation, President of Australian Lawyers for Human Rights, a Board member of the NSW Legal Aid Commission, and a consultant to the NSW Law Reform Commission. Since 1996 he has been a part-time judicial member of the NSW Administrative Decisions Tribunal in the Equal Opportunity Division. He was awarded a Medal in the Order of Australia for legal services to the economically and socially disadvantaged.