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.