Double jeopardy


In contrast to other common law nations, Australian double jeopardy law has been held to further prevent the prosecution for perjury following a previous acquittal where a finding of perjury would controvert the acquittal. This was confirmed in the case of R v Carroll, where the police found new evidence convincingly disproving Carroll's sworn alibi two decades after he had been acquitted of murder charges in the death of Ipswich child Deidre Kennedy, and successfully prosecuted him for perjury. Public outcry following the overturn of his conviction (for perjury) by the High Court has led to widespread calls for reform of the law along the lines of the England and Wales legislation.
During a Council of Australian Governments (COAG) meeting of 2007, model legislation to rework double jeopardy laws was drafted, but there was no formal agreement for each state to introduce it. All states have now chosen to introduce legislation that mirrors COAG's recommendations on "fresh and compelling" evidence.
In New South Wales, retrials of serious cases with a minimum sentence of 20 years or more are now possible, whether or not the original trial preceded the 2006 reform. On 17 October 2006, the New South Wales Parliament passed legislation abolishing the rule against double jeopardy in cases where:
• an acquittal of a "life sentence offence" (murder, violent gang rape, large commercial supply or production of illegal drugs) is debunked by "fresh and compelling" evidence of guilt;
• an acquittal of a "15 years or more sentence offence" was tainted (by perjury, bribery, or perversion of the course of justice).
On 30 July 2008, South Australia also introduced legislation to scrap parts of its double jeopardy law, legalising retrials for serious offences with "fresh and compelling" evidence, or if the acquittal was tainted.
In Western Australia, on 8 September 2011 amendments were introduced that would allow also retrial if "new and compelling" evidence was found. It would apply to serious offences where the penalty was life imprisonment or imprisonment for 14 years or more. Acquittal because of tainting (witness intimidation, jury tampering, or perjury) would also allow retrial.
In Tasmania, on 19 August 2008, amendments were introduced to allow retrial in serious cases, if there is "fresh and compelling" evidence.
In Victoria on 21 December 2011, legislation was passed allowing new trials where there is "fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given false evidence". Retrial applications however could only be made for serious offences such as murder, manslaughter, arson causing death, serious drug offences and aggravated forms of rape and armed robbery.
In Queensland on 18 October 2007, the double jeopardy laws were modified to allow a retrial where fresh and compelling evidence becomes available after an acquittal for murder or a "tainted acquittal" for a crime carrying a 25-year or more sentence. A "tainted acquittal" requires a conviction for an administration of justice offence, such as perjury, that led to the original acquittal. Unlike reforms in the United Kingdom, New South Wales, Tasmania, Victoria, South Australia, Western Australia, this law does not have a retrospective effect, which is unpopular with some advocates of the reform.