Abolishing Double Jeopardy
How to Re-commit
The Grand Jury
In the Interests of Justice
Costs to the Accused
Retrospective or Prospective
How to Re-commit.
If we are to abolish the laws protecting the acquitted from double jeopardy then review must be made of the decision making process to return a previously acquitted to trial. Currently the two options are a committal hearing before a magistrate as before, or the decision of an appellate court on reviewing the circumstances of the original trial.
Even though contemporary comment on the matter suggests that a retrial could only be mandated by the decision of a court of appeal, both systems would appear to possess flaws.
Cost and Time
In law, when an accused who has been convicted wishes for a new trial, he simply cannot approach a lower court committal hearing for application. This is because at the trial undergone, a positive determination of his guilt was made by the jury, the status of which cannot simply be ignored without the careful deliberation of a superior court of appeal.
However with one who is acquitted the situation is different.
Seldom, if ever, therefore, can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial. - Gleeson CJ¥
A jury does not declare that the accused is innocent of the crime. They declare that he is not guilty beyond a reasonable doubt — a semantic yet important difference. Before trial all persons in society can be suspect to the crime, and while everyone is held, in the legal sense, to be not guilty until proven guilty, no one can declare themselves to be, by the technical and correct meaning of the word, innocent. So in effect, when a jury hands down a verdict of not guilty, the status of the accused does not change, but merely remains the same as it was before he was presented for trial. Therefore, as the acquitted accused has not been given any positive determination of guilt or innocence by the jury, there would obviously be no determination that needs protecting by the timely, expensive and resource-draining deliberations of a superior court of appeal.
The Human Element
Another aspect to be considered in the decision making process is to ensure that public confidence in the judicial process is maintained. Nowhere in the (civilian) criminal justice system is there a situation where, rather than by a jury of his peers, an accused can be convicted of a serious crime on the opinion of a judge or judges. For a serious crime, a judge can not, and should not, have the power to declare someone guilty. This is not only a manifestation of democracy but also of that facet of the Rule of Law which limits the range of powers that officers of the law should be allowed to possess. The judiciary shall rule on the law but it is only twelve of the accused’s peers who rule on what is fact and who ultimately decide on guilt.
If the law is to act on a level playing field and treat both parties equally then the same principles should also apply in the alternative application. If judges do not have the power to declare that those they do not like are guilty of crimes, then they similarly should not have the power to declare that those they favour are free from answering for alleged crimes. Therefore in a criminal case where controversy is caused by a previously acquitted defendant being again presented for the same crime, it should not be judges, but only a jury of one’s peers which will have the authority to declare whether or not the accused has to again stand trial.
That is: a Grand Jury should be summoned to decide on committal for trial for the rare occasions of a repeat prosecution.
Historically, the grand jury evolved as a buffer between the state and the individual to protect innocent persons from capricious prosecution based upon contrived or fabricated charges motivated by malice or revenge…The basic rationale for the continued existence of the grand jury is that it serves as a measure of control over the power of the prosecutor.#
A Grand Jury is a jury of twenty-three citizens with an investigative function to ascertain if there is sufficient evidence for a person to stand trial. The last successful application for the summoning of a grand jury in Victoria, Australia was in 1986 and it was still the law until 2009. Although having been abolished in the United Kingdom since 1948 because of administrative costs, they are still utilised in the United States.
Thus to fairly accommodate both the accused and other concerned parties seeking justice:
Any committal hearing for a person, previously acquitted, to be tried again for the same charge should be made before a Grand Jury and a decision to indict should be by a majority vote.
Rules of a Grand Jury would be such as to allow the accused or his counsel to present argument why a new trial would have no greater chance of success than the previous.
No pre-conditions should be set. Costs to be afforded by the prosecutor (whether private or public) as well as potential for malicious prosecution, should be sufficient deterrence to prevent ambit actions.
In the Interests of Justice
Suppose a person was retried after an acquittal of a criminal offence when it was revealed that the not guilty verdict was due to an administration of justice offence such as bribing a witness or giving perjured testimony. If the verdict at the subsequent trial was again found to be false due to another administration offence, perhaps this time that of threatening a juror, the accused might yet again have to submit to a further trial. In a situation like this, even if there was no limit to the number of new trials ordered, it would be hard to sustain any feelings of sympathy for the accused, considering the reason for the hardships of all subsequent trials he would have to endure was his own ongoing malevolent actions in abusing the judicial process.
However there would be situations where, as guilty as the accused may well be, the reason for the new trial might not in any way reflect any transgressions on the part of the accused, and the original crime to be answered for might be less than the enormity of those such as murder, treason, rape or child molestation. In situations such as these, considering the cost and trauma of the original trial, sympathy for the accused might be deemed by the average fair minded person to transcend the need for further prosecution of the original crime.
Thus consideration should be given for prosecutions of less than serious crimes where acquittals had been attained without perjury or any other administration of justice offence committed by the accused.
In such situations it might be prudent to allow a re-committal tribunal, such as a grand jury, the authority to deny at their discretion, a new trial even where there was a prima facia case of guilt on the part of the accused.
Costs to the Accused
Under current law, an accused’s legal costs are expected to be afforded by him/her immaterial of whether or not a guilty verdict is brought in. There exists some debate as to whether criminal law should be brought more into line with civil law such that if the accused is found not guilty his/her costs should be ordered to be paid by the prosecution. Immaterial of the outcome of that, it would be reasonable to declare that if an accused was again committed for trial after a previous acquittal, a trial obviously not of his/her choice, it would be grossly unfair to expect the accused to again be expected to fund such an undertaking. Obvious exceptions to that would be if there was proven misconduct of the accused at the first trial, (such as perjury, interfering with witnesses, jury tampering) which may have had a significant effect on the verdict.
Thus at the discretion of the ruling authority, court costs could be allocated as follows:
Defence costs of any subsequent trial or Grand Jury hearing should be covered by the prosecutor.
There is current debate as to whether private prosecutions are still legal in Australia. If courts did recognise such then the onus would be on the private party to guarantee costs of the accused up front.
If there was a subsequent conviction, then one would expect that the state should cover all costs by both prosecutor and defendant.
Retrospective or Prospective Abolition?
“An ex post facto law (from the Latin for "from something done afterward") or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or to aggravate a crime by bringing it into a more severe category than it was at the time it was committed; or to change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms…” *
There have been calls that, if and when double jeopardy is to be abolished or reformed, the new law should only apply from the date of change and that people who at the time were already acquitted should have no fear of further prosecution. Former Queensland Attorney General, Hon. Rod Welford MP said “any change to Queensland law was unlikely to apply retrospectively…”. Andrew Haesler, a Public Defender, Barrister, and former Director of the Criminal Law Review Division of the Attorney General’s Department (NSW) has said that any new laws should not be retrospective as this would ‘clearly contradict’ the International Covenant on Civil and Political Rights.
These comments relate to a very worthy principle and one of the underlying concepts of the Rule of Law: the illegitimacy of retrospective (a.k.a. retroactive) legislation.
- “We are only subject to predetermined law” A.V. Dicey 1885
- “All laws should be prospective, open and clear” Joseph Raz circa. 1980
The underlying principle that legislation should never have a negative retrospective effect on citizens is what might be called one variation of the social contract. That is, a citizen is prepared to accept the legal consequences of any act he or she may commit on condition that the government has done its part by duly proclaiming beforehand all laws that relate to the actions of its citizens.
The essence of the traditional abhorrence of retroactive law is that an act should only be punishable, or subject to fines, tolls or duties, if knowledge of such penalty was made public beforehand. If an individual commits what appears to be in good faith a free, unencumbering act, the government cannot then come along and inform him there is now a levy to be paid or a fine or other punishment. No authority can allow someone to freely cross a bridge and then inform them that there is a toll that now has to be paid.
A corollary of this is that an individual should always have the right to claim that, if having being warned of the consequences, he or she would have acted differently. With regards to criminal law, every citizen has the right to try to live a law abiding life.
We must remember however, that no matter how good any legal principle is, it must still only be applied in its specific relevant situation, rather than just blindly followed in any instance which contains merely a hint of the principle. Democracy is a noble principle, but democracy does not mean that the majority can vote to disenfranchise the minority. Free speech does not authorise us to commit perjury. Freedom of movement is no justification to enter property against the owner’s permission.
This concept has been duly recognized in common law and elsewhere with regards to retrospective legislation.
In Re a Solicitor's Clerk  1 WLR 1219 a British court held that a new law which prevented the employment as a legal clerk of anyone with a larceny conviction did not contravene the principle of retrospectivity, even if the conviction already existed at the time the law was enacted. The Lord Chief Justice justified this by declaring that the new law mandated no specific penalty for past actions.
In Rodway v R HCA  the law with respect to the validity of witnesses was changed after the accused was arrested for a number of sexual offences. As compared to previously, uncorroborated evidence of the victim was now permitted in court. After conviction the accused claimed he was a victim of retrospective legislation in that he would not have been convicted (due to lack of permissible evidence) if he had been tried under the law that existed at the time of his actions. The High Court of Australia held that the principle only applies where “rights or liabilities” are at stake and, quoting Chief Justice Dixon in Maxwell v Murphy held that “there is no presumption against retrospectivity in the case of statutes which effect mere matters of procedure.” It might be implied from that that even before the law was changed the accused possessed no right to commit sexual offences.
Despite Andrew Haesler declaring that retrospectively abolishing double jeopardy would ‘clearly contradict’ the ICCPR (above), the wording of Section 8 of this document,
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”
does not appear to support this claim. Obviously Section 8 is not concerned with procedural matters (or for that matter even issues of punishment) and is only insistent that the crime at trial was also a crime at time of commission.
So if the essence of prohibiting retroactive criminal laws is that we can’t have our ‘at the time’ rights or liabilities threatened, or that the accused has a right to be warned that an action is criminal and it warrants punishment, then where is the problem in retroactively abolishing double jeopardy? Introducing repeat prosecutions does not introduce or increase any specific criminal sanctions. It is strictly a procedural matter: the manner and form in which one is challenged to ascertain whether or not he/she has committed a crime. The punishments for murder, rape or whatever the crime is, were already well in place at the time the crime was committed. Accuseds can hardly claim with any credibility that they acted in good faith with respect to the law and it is only a change in the law that has made them criminal, or more criminal.
In 2003 the UK Blair Labour government enacted the Criminal Justice Bill which allows repeat prosecutions in specific circumstances. This law does operate retrospectively.
In 2006 the New South Wales Labor government passed the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 No 69 allowing further prosecutions where there is fresh and compelling evidence or proof of tainted acquittals. Division II Section 99 (3) of this act reads:
“This section extends to a person acquitted before the commencement of this Division.”
¥ Gleeson CJ & Hayne J in The Queen v Carroll  HCA para 31.
# Abraham Blumberg, Criminal Justice: Issues & Ironies, New Viewpoints, New York, 1979, p139,141.
* Wikipedia 2006