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?

I guess the overall lack of response to this topic could be interpreted that people are not overly interested in this topic, and could not not give a toss whether the double jeopardy rule should be or not be abolished.

Roll on justice for the victims and not just the perpetrators.

Perhaps the abolition of the double jeopardy rule may have another consequence: that is, if someone thinks that they can get away with it at the first trial, but realises that if they may get another trial, with less mercy for a guilty plea (as I would presume that the original not guilty plea would be have to be carried over from the first trial - leading to an assumption of lack of remorse and less chance for rehabilitation) then maybe more felons will plead guilty to their crimes in the first instance.

Or would defence lawyers try to argue that a not guilty plea should be made if the person thinks that they get away with it, regardless of whether they actually killed, raped or assaulted someone?

"Or would defence lawyers try to argue that a not guilty plea should be made if the person thinks that they get away with it, regardless of whether they actually killed, raped or assaulted someone? "

Yes Hamlet, of course they would. Their loyalty is to their client, and getting the best possible outcome for them. That's the way the system is designed. Occasionally a little lip service can be heard to the contrary, but in practice this is not the case.

Actually, TurnRightThenLeft, a lawyer's duty is to the court, not to their client.

If a lawyer is told by their client that they committed the crime, instead of just suspecting that they did, it is the lawyers duty to withdraw from representing that client, unless the lawyer can see that the client only thinks that they committed a crime, and it able to convince their client otherwise.

To give an example, say in a pub fight someone falls, due to a punch, hits his head and dies.

The lawyer's client may assume, from lack of knowledge of the law, that they have committed murder, whereas the client may be in actual fact guilty of manslaughter, for various reasons, or may even have the defence of self defence available to them, so pleading guilty to murder may be an injustice.

I am also aware of one case where a defence of diminished responsibility was aguably available to an accused, but whose conscience so troubled him that he insisted on pleading guilty to murder.

However, if someone intentionally shoots or stabs someone, and admits that to their lawyer, and then insists on the lawyer running the case that he had absolutely nothing to do with the case and, for example, was 2000 kilometres away at the time, the lawyer is bound to withdraw.

I have spoken to barristers who simply don't want to know whether their client did the deed, who intentionally don't ask, due to exactly this problem that they face. Many lawyers do this with honour and dignity. They HAVE to believe that their client is not guilty.

It is the lawyers who use legal tricks to prevent the truth from coming before the court that I dislike. They do society no justice whatsoever.

However for a lawyer to come out and want to stop the truth, for example by arguing against the scrapping of the double jeopardy rule, is for that lawyer to say that they not only consider an accused to be not guilty, they simply don't want to know, and don't care, if they are guilty.

So the Queensland Police Service and the Departemnt of Public Prosecutuions are the criminals now? Harrassing innocent people until they get a conviction are they? Anyone who has been on the receiving end of ruthless defence lawyers and their dirty tactics in protecting people who they know damn well are guilty know exactly who the criminals are?

As a law student at the very end of my degree, I have always believed that the rule of double jeopardy is a fundamental tenet of our legal system. Such a rule was created over 800 years ago to protect the individual from executive detention, and to ensure a fair trial process. To legislate to remove double jeopardy is to allow a person to hypothetically be tried innumerous times, and if held without bail throughout these proceedings, the effect is to deny them a fair trial until such time as a jury finds them guilty.

What is the point of a legal system if an accused person can simply be retried until the verdict is favourable to the government of the day?

As to using such a procedure to overcome "technicalities" in the law, I feel it important to note that the word "technicality" gets thrown around a lot. Ensuring that unfair evidence not be admitted, that the jury are given proper directions and that no error of law is made are not "technicalities". They are safeguards, to protect everyday individuals from going to gaol for doing no wrong.

Rob - your point is the only one, as far as I can tell, which is used to defend the double jeopardy rule.

DJ may be a fundemental tenet of the system, is this alone enough to argue that it must be maintained?

Isn't our legal system also based on a 'spirit of the law' tenet? hasn't it been designed to evolve, thus, we have both statute and common law - importantly, the tradition of precedent.

Might I ask what's flawed in Gw's suggestion?

The idea that the outcomes would be geared toward the government of the day is only valid if there is either an automatic assumption of unlimiterd trials or that the separation of powers has utterly failed.

To assume that there would be innumerable trials is to assume judges and legislators are incapable of placing sufficient controls - even something as simple as a limit of two trials would wipe out the majority of flawed verdicts.
If judges are incapable of that, they can we really on anything produced by our legal system? To assume this, would be to cast the gravest aspersions on the findings of establishments such as the high court.

If our judges are really incapable of maintaining the integrity of the legal system in the event of DJ being abolished, if this would result in trials favourable to the government of the day... then what does that say about the recent high court FOI case, and even more importantly, the IR findings?

BTW hamlet - yeah, there'll be some good lawyers who adhere to the noble rhetoric. I still find that most I've encountered prefer to find legal ways around it while maintaining the pretense of adhering to it.

Refute this logic: those who have wins for their client (regardless of how) will be in demand. Face it, if you're in strife, you want the lawyer that will get you off.
The lawyers in demand are prized by the firms. They can also charge more.

Rhetoric is all well and good, but in the real world things tend to be less pleasant.

Rob, another central tenet of the legal system is the holding of people to their oaths and affirmations: that is, if someone lies in court then they should be liable for punishment for that lying.

The High Court in R v Carroll signalled that an accused can lie on oath and not be punished, as an extension of the double jeopardy rule.

See

http://www.justice.qld.gov.au/ourlaws/papers/doublejeopardy.htm

Are you, as a lawyer, happy that at present your client could lie, not only to you as his lawyer, but in court under oath in order to secure a not guilty verdict and get away with it?

Lets not lean too long on the 800 year old bit re this rule either: 800 years ago juries were composed of people who knew the accused, his character, his history and knew everything about the case that they could either find out for themselves or the crown could present to them.

Now juries are presumed to be a clean slate with no knowledge of the person or the crime. Lots has changed in 800 years. The accused is better protected in court now than at any previous time.

It was not that long ago that the dock statement was abolished in most Australian jurisdictions. Defence lawyers called this a travesty of justice, as it meant that their clients could no longer say what they liked and not be cross examined on it. Now few would consider that an unsworn dock statement is a right.

Lets look on the limits that could be put on a second trial after acquittal:

Any trial would have to be ordered by a court after examination of evidence. The costs of the trial to the accused would be met from legal aid, or run by the Public Defenders Office. In the same way as most appeals happen now, the jury would not be informed by the Crown of the previous trial. The defence, however, would not be under this limitation.

A retrial in these circumstances would be a rare, but necessary, event.

The biggest flaw I see in Gw's suggestion (and I confess to knowing very little about the Scottish system) is, what occurs in circumstances where a jury, given a choice of guilty, not guilty and not proven, finds the defendant "not guilty". Then new evidence emerges. The considerations in such circumstances would be the same as now, with us debating whether or not a sense of justice would require new evidence to be readmitted. The problem with such a system is that it makes the bold assumption that a jury is always sure - that it knows whether a case has simply not been proven, or can never been proven. You only need to watch the age old classic Twelve Angry Men (which is a little before my time) to realise that there is no difference between not guilty and not proven - a jury must make any decision based on the evidence that is placed before them.

In terms of considering whether a "separation of powers has totally failed", it is not a question of that. It is simply that legislating that a valid, present and necessary prohibition on re-examining a person's guilt after a finding of innocence opens the floodgates, irrelevant of what protections you put upon it, or on what guidelines you give to the judiciary

Hamlet, to suggest that R v Carroll condones lying in court is to be overly dramatic. Carroll's case was a correct application of the double-jeopardy principle in exactly the circumstances in which it was required. When an alleged murderer has his conviction quashed on appeal, that should not provoke a reactionary school-bully style response from the Prosecution, that causes them to collect a number of charges obviously relying on the same facts as the murder charge. Also in Carroll's case, the charge of perjury came 14 years after the original murder case.

I think everyone in life seeks some form of closure. Criminal allegations against the person ordinarily take several years out of their life - years of severe stress and anxiety. In the matter of R v Lavender that went to the High Court in 2005, the defendant Lavender was found guilty of accidental Manslaughter by his third jury (after his first made a mistake of law, and the second was a hung jury). He appealed to the Court of Criminal Appeal of NSW where his conviction was quashed. The Crown then appealed to the High Court and his conviction was reinstated. The process took 6 years, despite his original conviction only being 4 years in prison.

This occurred in circumstances where there was no "new evidence" or prospect of a double-jeopardy retrial. Imagine if Mr Lavender's conviction was requashed by the High Court, and he had to spend the rest of his life wondering if new evidence could appear, or if he could be dragged back before a court.

Criminal defendants are not criminals - they are defendants, until proven guilty. They need closure too.

Rob H wrote:

"In the matter of R v Lavender that went to the High Court in 2005, the defendant Lavender was found guilty of accidental Manslaughter by his third jury (after his first made a mistake of law, and the second was a hung jury). He appealed to the Court of Criminal Appeal of NSW where his conviction was quashed. The Crown then appealed to the High Court and his conviction was reinstated. The process took 6 years, despite his original conviction only being 4 years in prison."

And if he had pleaded guilty in the first instance, as he obviously was given the result, he would have probably been out of gaol in three years.

Or are you of the opinion that even if someone has actually committed a crime then they should never admit to that and plead guilty, or perhaps only plead guilty for tactical reasons (ie discount for an early plea, proof of 'remorse') when the evidence against them is overwhelming?

And are you arguing that just because a person has managed to evade punishment for a number of years by committing perjury then this is in itself justification for them never having to deal with the fact that they killed a young child?

Another possibility is that if an accused person has evaded justice by tampering with a jury. If he is acquitted and the tampering later uncovered, he cannot, it seems, be retried or tried on the charge of perverting the course of justice, for the same reasons as in Carroll. Or would you argue that such a not guilty person shopuld still be able to just get on with their lives?

Perhaps we should be able to at least have the families of victims take civil action against an 'acquitted' accused. After all, OJ didn't kill his wife, did he?

Re Lavender

I have read the judgement of the NSW Court of Criminal Appeal, and the judgement of Sully J in which Mr Lavender was sentenced, essentially, to the rising of the court.

The CCA judgment is useful in that it outlines the facts of the case, that is, that Mr Lavender essentially decided to scare a group of children away from an unfenced sand mine by running a 25 tonne vehicle through an area of dense scrub.

The outcome of such an endeavour could easily be imagined, and this was the death of one of the children, and whilst he was sentenced to 4 years imprisonment, the non-parole period was only 18 months.

Isn't the life of a child, caused by a reckless and foolish action worth at least some time in gaol?

The use of a vehicle in this way has parallels to the use of a vehicle on a public road, recklessly and foolishly, resulting in the death of a bystander, passenger or driver of another vehicle. Is it any wonder that the High Court reinstated the conviction?

Compare this with a theoretical death of someone from the effects of date rape drug: the administration of such a drug is reckless, foolhardy and illegal, much like the running a 25 tonne vehicle through a densely vegetated area where children are hiding.

Would we just consider that 18 months in gaol, with a further 30 months of supervision be considered to be an adequate punishment?

How else will be deter people from acting in gross disregard to human life? Mr Lavender had other options available to him, such as the calling of the police, or simply taking a number of his workmates and warning the children away, whilst asking management to fence the area.

These options were not taken up: instead he chose an option that lead to the death of a child, who as a child, could not be considered to have known better than playing in an area without fences or signs that said 'keep out'.

You raise some interesting points. I wish to raise some as well.

In relation to your first post, there was obviously no point in Mr Lavender pleading guilty at first instance in order to "get out of gaol in 3 years". At no stage did he dispute that his actions did in fact contribute to the death of a young boy, but what was disputed was the criminality of such conduct.

Furthermore, I'd hate for readers who are not familiar with the facts in Lavender to misunderstand you - although Mr Lavender's actions were clearly foolish, his "running a 25 tonne vehicle through dense scrub" was done at 4kph, in a loud and noisy vehicle. It is true he had very limited visibly - the agreed facts make it clear that the child hid in the path of the loud and noisy vehicle, and that Mr Lavender had no idea or way of knowing the child was in his way.

The issue that went to the High Court was effectively defining the correct test for Criminal negligence. In doing so, the court adopted (as it had in the past) a completely objective test - meaning that what Mr Lavender believed at the time of the offence is completely irrelevant... only what a reasonable person in Mr Lavender's shoes would do is relevant.

I do not dispute the charge, the finding or the punishment. I simply state that, for a man that caused a tragic ACCIDENT and showed great remorse, we should not be proud of the way our multiple trial criminal justice system treated him. Justices Kirby and Callinan described his circumstances as quadruple-jeopardy.

Rob wrote:

"In relation to your first post, there was obviously no point in Mr Lavender pleading guilty at first instance in order to "get out of gaol in 3 years". At no stage did he dispute that his actions did in fact contribute to the death of a young boy, but what was disputed was the criminality of such conduct."

And here is one problem: the case had to be taken all the way to the High Court for the criminality of such conduct to be defined, whereas it should be blindingly simple:

If a person does something reckless that results in a death, why should the criminality be even doubted?

Or are you saying that if a person, thinking that there are intruders on his land, fires a number of warning shots into the air and them proceeds to blast the bushes with a shotgun, killing a child who was hiding there out of fear, having accidentally wandered onto the property, then the shooter is simply responsible for an accident?

As for the double / triple / quadruple jeopardy problem that you mentioned: The judgements do not indicate why this matter was not at first instance dealt with in the Local Court, in the same way that a 'dangerous driving occasioning death' matter is usually handled?

I can only presume, but you may be able to enlighten me, that either the crown felt that the matter was serious enough to be charges as indictable offence, or perhaps the defence thought they would have a better chance before a jury?

In Lavender one would hope that his legal team would have considered precedent, as you have put it:

“In doing so, the court adopted (as it had in the past) a completely objective test - meaning that what Mr Lavender believed at the time of the offence is completely irrelevant...”

So, the Court already had published a precedent, so where is the problem about the criminality of the matter?

The basis for the acceptance of the criminality had already been established.

It's good to see that this anachronistic law has now been reformed in Queensland. Taking legislation to be introduced in South Australia in the imminent future that makes three states in Australia so far.
Bearing in mind that the UK has also seen the light, I must concede that it does bode well for the common law countries of the West. (despite the common law judges dragging their feet all the way)
Dare I foresee the day in Australia when a presumed felon no longer has the right to walk the streets, free from fear of prosecution.

http://www.autrefoisacquit.info

October 2007