I disagree with the author,

If I committ any crime, get off on a technicality, then evidence is found proving my guilt I should definitly be retried on that evidence.

Perhaps the Scottish system would be better, with three verdicts; guilty, not guilty and not proven.

Not proven allows you to keep double jeopardy, but still not allow criminals to walk free due to lack of evidence.

gw

It appears to me that, along with the presumption of innocence, the double jeopardy rule is an important pillar of our system of justice. Ending double jeopardy allows the prosecution to continue to harrass a suspect by repeatedly bringing them to trial. Presumably it would also encourage prosecutors to bring speculative cases to court where they don't really expect to win, but can afford to take a punt knowing that they can have a second (and third, et cetera) bite of the apple.

As the author says, someone who is acquited has the right to believe that the case is behind them, and that the acquittal is final. This to some extent redresses the imbalance between the resources of the procecution and the reesources of the defence. The procecution also has an unequal advantage is bringing a case to trial at a time of its choosing.

By all means let criminals be convicted, but let justice as we know and treasure it, continue to be our first concern.

I've got to disagree with the article as well. Common sense people. If you're worried about unlimited retrials, do as W suggested, or even just allow singular exemptions for new evidence (i.e. you can trial twice if the first one was cocked up.)

When the issue of legal reform raises its head, we often consider the accused and this is of course, necessary to protect the integrity of the system.

When the victims are mentioned however, it always just seems to be lip service.

A cynical person might think it's because they're not as profitable as the accused, who have to hire legal representation...

The maxim used to be, better ten guilty men go free than one innocent man go to gaol. Unfortunately, the opposite is now true. The maxim is, better ten innocent men go to gaol rather than one guilty go free.

The law and order auction by politicians has done enormous damage to the legal system in NSW.

Pathological man haters like feminists advocacy and child rights groups are up there too . God help any man who is accused of rape in NSW. Defense rights have been so whittled away that accusation now equals guilt. Then, if a man is somehow found not guilty the verdict is not accepted but seen as a miscarriage of justice. People are 'outraged'.The presumtion is women never lie; all men are guilty.

Queensland will certainly follow suit. Beattie is such shameless populist he'll do anything to stay in power.

I see a problem in the basic premise that the writer of this article works from, and that is that a person who has been declared 'not guilty' is always to be considered innocent.

Quote:

"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."

Unquote

What the writer is saying is regardless of whether the person actually committed the crime or not, they should never face punishment for it if some lawyer's tactics manage to get them off.

This is a defence lawyers way of looking at the world: that it doesn’t matter what evil a person does, so long as some way is found to have them declared ‘not guilty’ in a court of law and the lawyer will consider them to be a white as snow.

But just remember what Ivan Milat did after he was gotten off rape charges by a defence lawyer’s ambush in court of the victims of the rape.

The other side of this is that the community should not have the spectre hanging over its collective heads of a person who should face justice, due to fresh and compelling evidence, living a carefree life thumbing their nose at the victims or the family of their victims, even being able to boast about what he got away with, without ever having to face another trial.

The other thing not mentioned by the writer is the way that the High Court has interpreted the double jeopardy rule to mean that if an accused person commits perjury, that is lies under oath in their own trial, they can never be charged with that perjury. This is the real reason behind the abandoning of the double jeopardy rule. If an accused's evidence of alibi manages to get him acquitted, and the alibi is later proven to be a lie, then the accused will never face justice over this or any other untruthful evidence.

Our legal system is all about weighing up evidence and assessing the seriousness of actions, and apportioning punishment accordingly.

Well, within this regime of all manner of shades of grey, it makes no sense to have a black and white rule such as the double jeopardy rule.

Clearly this rule has very significant advantages and disadvantages. So we need to find the best compromise that takes into account the advantages while minimising the disadvantages. Well, obviously!

“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.”

No. If a retrial is purported to be necessary, a formal judgement should have to be made as to whether that is appropriate. And it should only be appropriate if compelling evidence of a miscarriage of justice comes to light.

How often is truly compelling evidence that is probably going to change the verdict likely to emerge? Not very often. And when it does, we have surely got to have a system that can allow for its admission.

Crikey, if we have any faith at all in our legal system, we will have faith that spurious retrials will not be a result of the removal of double jeopardy. And if we don’t have this degree of faith in the system, then by goodness where are we at??

“ ‘Modernising’ the principle is fraught with potential risks for abuse.”

Well, this is basically saying that our whole legal system is fraught with potential risks of abuse! I mean, if a retrial is dependent on judgement from a judge, as seriously considered and delivered as a trial judgement itself, then we should surely be pretty safe.

“The current system works well and does not need change.”

If the current system works well, then we can have confidence in judges and juries determinations. And if we can do that, then why can’t we have confidence in a judge’s decision on the need for a retrial?