Double-jeopardy!
Today’s Oz, referring to a bill passed by the NSW Upper House last night:
NSW prosecutors will be able to take previously acquitted people back to court for retrial on the same case, under reforms passed by state parliament.
The 800-year-old double jeopardy legal rule was reformed last night under new laws allowing the retrial of serious cases under fresh or compelling evidence, or where it could be proved the integrity of a trial had been tainted.
NSW Premier Morris Iemma said the changes were among the most significant in the history of the state’s criminal law.
“Now NSW courts will recognise cases where new evidence comes to light after an acquittal, such as DNA discoveries or a new witness,” Mr Iemma said.
“Those kinds of discoveries will now enable prosecutors to take someone previously acquitted back to court on the same offence, even years down the track.” (emphasis mine)
Various MLCs and others concerned with civil liberties attempted to have the stripping of double jeopardy apply only to murder cases, but they were unsuccessful.
The [Law] Society’s spokeswoman, Pauline Wright, said double jeopardy was a fundamental legal principle aimed at protecting a person’s right not to be tried more than once for the same crime.
“Nobody should be brought into jeopardy of spending 20 years or more of their life in jail more than once,” she said.
The Government believes if the existing rules are overturned, authorities could make use of advances in DNA and other technology which could prove who committed a crime.
But Ms Wright said it was important for investigators to get it right the first time.
“They should be making their best efforts to make sure that they’ve got all of the evidence before the court at the time the trial goes ahead,” she said.
Thus there are now fewer protections for those innocents who are wrongly charged, who can no longer rest easy once acquitted, all in the name of ensuring justice for bad’uns.
The UK recently stripped the double-jeopardy provision from their legal code, and earlier this month the first defendant retried for murder after an earlier acquittal was found guilty and sentenced to a life-prison term. He had confessed to the crime while in gaol on another offence before the law on double jeopardy was changed.
It is hard to argue that his removal from society is anything other than a public good, and it is certainly understandable that victims and their families would want to see a murderer finally be found guilty if it hadn’t happened first time around. But is it a large enough good to balance the ills of a legal system where an innocent accused can be prosecutorially harassed for years – if at first you don’t succeed, try, try, again?
The bill passed last night in NSW applies only to violent crimes where the sentence is 20 years or more, and only allows for one retrial. But there is nothing to stop the government changing the law again to make the provisions apply more widely to more crimes and allow more retrials, should they think that would do them some good electorally.
In practice, though, prosecutors will need to show significant new evidence has turned up. They won’t be allowed to have another bite at the cherry just because they didn’t like the jury verdict.
Furthermore, I’m sure prosecutors don’t have the resources to harass people for years. (Heck, in my State, SA, they apparently sometimes don’t have the resources to try people once — The Advertiser has been kicking up a fuss recently because a string of major prosecutions have been dropped, due in part to lack of DPP resources.)
Final point: feminists have been complaining — quite rightly — about the tiny rate of successful prosecutions for rape. Mightn’t this new law help in that regard?
I should imagine a majority of people would be bankrupted, if they can pay at all, by being charged with a serious offence and then acquitted.
How do they pay for it a second time around? We don’t have public defender’s offices like they do in the US and legal aid is very strictly means-tested these days.
As usual the poorer you are, the more chance of gaol-time and vice versa.
Another reason I will not be voting for my local MP, the NSW attorney-general Bob Debus.
Paulus, for reasons which include your example of rape prosecutions and the murderer recently retried in Britain, I find myself in the position of seeing this legal revision as emotionally and even perhaps pragmatically appealing, yet in principle appalling.
As it stands, the NSW bill seems to strike a reasonable balance, although I’m disturbed that they have made it retrospective and with no time limit within which a retrial must take place. The Law Society and the Bar Association reservations regarding the bill also make sense.
The precedent of rolling back common law in general concerns me. A lot of ink (and blood as well) was spent by our ancestors wrestling provisions from the magnates, barons and the Crown that protect the common people from the apparatus of the Establishment. In this area I am much more conservative than in others, and I hate to see those traditions lightly tossed aside.
This is essentially incentive for police and prosecutors to not do a thorough investigation in the first place. If they do a dodgy job the first time (but just enough that they think they can get a prosecution) it will be easier to find “new” evidence later.
that should of course read: …but just enough that they think they can get a conviction
I can see why this is attractive to voters raised on a diet of Cold Case etc. and I don’t have an inprincipal objection, but in a time of limited resources I fear it will divert resources from new cases. In practice more guilty might end escaping justice.