Genesis

St Thomas Becket

Defenders of double jeopardy often would like it to be enhanced with an added justification that it has a legal heritage of 800 years stemming back to the life and martyrdom of the famous St Thomas Becket.

“The controversy between Henry II and Archbishop Thomas à Becket – and Henry’s concession in 1176 following Becket’s murder – that clerks convicted in the ecclesiastical courts were exempt from further punishment in the King’s courts probably was primarily responsible for bringing about the adoption of the concept of double jeopardy in the common law.”¹

If so, it had less than an auspicious start. Rather than the law being introduced to prevent the King, or prosecutors acting in his name, from again bringing to trial those of whom they were unsuccessful in gaining a conviction the first time, the motives appeared to be less about justice and more to do with a turf war.

In the twelfth century a legal concept known as ‘benefit of clergy’ was introduced whereby members of the clergy, known as clerks, suspecting of committing crimes could evade prosecution in normal courts by using the benefit of being a member of the clergy.  This would instead allow them to be tried in the church ecclesiastical courts where the outcomes were generally much more lenient towards malefactors.  Decisions were often acquittals and when convictions were recorded, punishments metered out were much less and never included the death penalty or an alternative punishment of the age, mutilation. In time the privilege granted to the clergy was so abused that even lay people were able to escape the Crown courts by merely being able to quote a verse of the bible such as to show that they were literate enough to such be of clergy. 

At the time the clergy permeated the world of business, property, education and politics to a much greater degree than today. Opportunities for abuse of their position for personal gain were common, especially considering much lesser punishments available to them.

“Henry's contention that clerical crime was rife and that it was encouraged by the absence of drastic penalties commends itself to modern readers as a fair one.” Encyclopaedia Britannica ²

Abiding by a principle of canon law, “not twice for the same fault”, Becket strenuously objected to his King’s advocacy that guilty clerks should be punished again by lay authority (Crown courts), no matter how lenient their original sentence had been.

Double Jeopardy law as atonement

Becket’s intransigence led to further disagreements with the King which ultimately led to his murder by four of the King’s knights mistakenly believing they were performing the King’s wishes. Henry’s partial responsibility for his death was probably what led him to begrudgingly acquiesce on the claim that once punished by ecclesiastical courts, no one can be further punished for the same crime. Over time this principle further evolved into what is today known as autrefois convict and autrefois acquit, or in general, double jeopardy. 

If we are to believe, which is most likely, that the genesis of double jeopardy was the martyrdom of Thomas Becket, then it is interesting to note that historically the concept was not to stop vengeful crown prosecutors of the day from persecuting with repeat prosecutions those originally found innocent, but in fact for the less than noble aims of protecting those who managed by privilege to arrange less than appropriate sentences for their crimes.

800 years of Double Jeopardy

Even though the law has generally been in force in English common law since the twelfth century it would certainly be false to declare that it had been an unchallenged bedrock of common law for that approximate 800 year period.

 In 1487 King Henry VII passed an act³ allowing, where there had been a charge of murder, both a crown prosecution (prosecution by indictment) as well as what was then often utilized, an appeal by a private party (private prosecution) for either a jury trial or the simpler and more decisive trial by combat⁴. This act did not authorize repeated prosecutions by the Crown nor by private parties but only a second prosecution by the other party if the first prosecution had resulted in an acquittal. Even though not often utilized, this law remained in force until the nineteenth century. It was only repealed in 1819, after a successful application of it the previous year when the courts allowed an appeal, albeit trial by combat, in the case of Ashford v. Thornton (1818), after an acquittal of the said Thornton for murder.

The century following Henry VII’s act Henry VIII passed an act⁵ even more disrespectful of the double jeopardy principle. Apparently having little respect for the administration of justice in Wales, Henry decreed that an acquittal or just a fine from a Welsh court was no bar to further prosecution in England for any felony including murder.

Ironically, in an age where what we now define as double jeopardy supposedly existed, these laws actually allowed appeals after the conclusion of a trial by the prosecution, but not by the accused. 

Double Jeopardy and Immunity

Double jeopardy did come fully into force in the twentieth century. One less than glorious example was that of British bank robber and multiple murderer Donald Hume. In a much publicised case in 1949, a wrapped dismembered body was found in the Essex marshes in eastern Britain. The police suspect, petty criminal, imposter and perennial liar Donald Hume, was found to have piloted a plane over the area at the time and to have traces of blood in the floorboards of his London flat. On being presented with this evidence Hume changed his story from total non involvement to declaring that the dismembered body was at his flat when he returned home and that he had disposed of it to avoid suspicion of murder. Despite the theft of a large amount of money for the time (£1,000) as a motive, the jury at his subsequent trial was unable to come to a decision and a new trial was held were Hume pled guilty to a lesser charge of being an accessory after the fact.  Upon being released after serving his eight year sentence Hume sensationally revealed that he had in fact murdered Stanley Setty, the victim, due to the fact that he suspected he was having an affair with his wife. Not only was he free from any criminal sanction due to double jeopardy, but he also profited from selling his story to London’s Sunday Pictorial for an estimated £3,600.

When the money ran out Hume returned to his life of crime (including that of another murder in Switzerland) until he was eventually caught and sentenced to life imprisonment.

Another example related to the infamous case of the racially motivated murder of the 14 year old African American boy Emmett Till in Mississippi in 1955. The two white suspects, Roy Bryant and J.W. Milam, were prosecuted and acquitted by an all-white jury. Being informed of the double jeopardy law, they subsequently agreed to an interview with Look magazine for between $3,600 and $4,000, where they fully admitted their culpability. To the end of their lives they never suffered any state sanction for their crime, although Bryant was often prosecuted for the occasional non-related petty crime.

The United States and the Fifth Amendment
O.J. Simpson

In the most famous (or infamous) American criminal court case of modern times, the so-called ‘trial of the century’, ex- football star O.J. Simpson managed, due to a very high priced and professional legal team, to evade a conviction for multiple murders he is still believed by most people to have committed. Whereas in all probability he will never be prosecuted again for that crime because of the legal system’s adherence to the double jeopardy principle set out in the America’s fifth amendment to its constitution, what is interesting is that by a strict, proper reading of that amendment, no protection at all is offered to him against a second trial.

The relevant wording of that document is “...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. ‘Life or limb’ is an eighteenth century term referring to capital punishment by means of drawing and quartering or other similarly gruesome methods of dismembering a body.

Before the 1995 murder trial of  Simpson started the prosecution, perhaps to make a guilty verdict more amenable for the jury, declared that they would not be seeking the death sentence if murder was proven. Simpson’s subsequent acquittal made that declaration irrelevant. Thus, as the accused Simpson has never actually been in jeopardy of life or limb for the said offences, making him stand trial again for the murders with the jeopardy, if found guilty, of life imprisonment or even death, has no constitutional bar.

 Other interpretations of the amendment

Compared to most jurisdictions⁶ of Australia, where once acquitted of a crime, a person not only can never prosecuted again in either state or federal jurisdictions, for any crime relating to the original action,  but also has a free pass of perjury in denying his original crime, the situation in the United States is surprisingly more lax. Whether as an unspoken concession that there are serious misgivings about the logic underlying the double jeopardy principle, or simply as a result of highly competent advocacy of various conflicting interests, the history of American jurisprudence has shown that an acquittal in a criminal prosecution has not always precluded further prosecution.

As declared in United States v. Lanza⁷, the U.S. Supreme Court held that:

  "An act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each."⁸

This recognition of dual sovereignties for criminal prosecutions was upheld in a number of later cases⁹. In one of those cases, Heath v. Alabama, it was stated:

"[W]ere a prosecution by a State, however zealously pursued, allowed to preclude further prosecution by the Federal Government for the same crime, an entire range of national interests could be frustrated. The importance of those federal interests has thus quite properly been permitted to trump a defendant's interest in avoiding successive prosecutions or multiple punishments for the same crime."¹⁰

Even without this ruling, an acquitted defendant can still be prosecuted a second time if the criminal charges for the harm done to the victim can be re-worded so as to be presented as a different crime. The acquittal of the four Los Angeles police officers of assault relating to the beating of motorist Rodney King which subsequently led to the L.A. riots of 1992, did not turn out to be a bar to further prosecution. The officers were then prosecuted in federal court for the crime of violating King’s civil rights. This further indictment was permitted under the so called Blockburger¹¹ test of facts in evidence, where one can only be retried if the second prosecution relates to a separate and distinct crime whether or not happening simultaneously with the original.  However it does seem hard to believe how a police officer could be in the act of illegally beating someone without also violating his civil rights.

Australia and The Queen v Carroll

From 2002 there has been legislative reform in Australia with regards to the law of double jeopardy. South Australian Premier Mike Rann has declared that in 2008 laws will be enacted to enable, in specific situations, a repeat prosecution after an acquittal, thus following the lead of two other states, New South Wales and Queensland.  This reform has in all probability come about as a response to the public backlash from the outcomes of the infamous R v Carroll saga of prosecutions and  appeals.

In 1985, a Raymond John Carroll was brought to trial, and subsequently found guilty, of the 1973 abduction, sexual assault and murder of seventeen month old baby Deidre Maree Kennedy. Carroll then appealed his conviction to the Queensland Court of Criminal Appeal. Despite what one may hold as the sanctity of a jury decision, the appellate court (none of whom having sat through the original trial and witnessed the evidence given at first hand) decided that the jury, in finding guilt beyond a reasonable doubt, was wrong, and that there was insufficient evidence for a conviction. It not only voided the verdict but unilaterally declared that Carroll was not guilty of the crime¹². Due to the law of double jeopardy he then became immune to any further prosecution for the grisly crimes.

Beaten but not bowed, over a decade later the Queensland Public Prosecutions office decided  in 1999 to at least prosecute Mr Carroll for perjury in his first trial. This was to be with the aid of newly acquired evidence believed to confirm without doubt the falsehood of his original court denials.

After indictment had been presented but before proceedings began, Carroll’s Legal Aid lawyers appealed that the trial should not go ahead as it violated the law of double jeopardy. As the new crime of perjury had no similarity to the original crime of murder and as the crimes were separated by a period of ten years, one might think the primary judge, a Justice Muir, ruled correctly in declaring there was no substance to the pleas that he was again in jeopardy of prosecution for the same crime.

In the subsequent trial Carroll was again found  guilty and yet again the decision of the jury was frustrated by the Queensland Court of Appeals, and, on appeal, by the High Court, holding that the accused should not have been prosecuted for an offence which sought to controvert¹³ the original acquittal.

To its credit, the High Court of Australia did admit that the perjury prosecution did not violate Queensland’s double jeopardy laws. “…neither par (d) nor (e) of s 598(2) applied and the respondent had no plea in bar available under the Code”¹⁴

However, perhaps not to its credit, the alleged justifications that followed delved into that murky area where the High Court, rather than being bound by legal code, exercised its discretion under its equity law authority to create new law so as to  prevent what it defined as a prosecutorial abuse of process.  The alleged abuse of process was that, in having to prove the defendant’s perjury,  the prosecution would have to prove an allegation (the defendant was a murderer) that an earlier court held was not necessarily the case.

In the ruling handed down, considerable space was given to arguments presented as justifications for the law of double jeopardy, and in quoting from a case, Rogers v The Queen, "the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct", the implication given was that even though the prosecution had not strictly violated the double jeopardy law, it had violated the principle.

As quoted from the Queensland appellate court,

"if the evidence at the perjury trial was substantially identical with that at the earlier trial, the rule against double jeopardy would be infringed and the prosecution would amount to an abuse of process"¹⁵
 

Where’s the connection?

Of course one needs to ask: how does controverting an earlier decision actually violate the double jeopardy principle?
The principle is not that difficult to encapsulate: One should not be twice in jeopardy of state punishment for the same harmful action.  The harmful action was perjury and it was only the first time the accused was prosecuted for that crime. What type of logical deduction short of sophistry can relate the principle to a situation where an appellate court of three judges is embarrassed when it’s decision is disregarded by a later jury? How do we connect an accused again in jeopardy of  punishment with that of the legal hierarchy in (alleged) jeopardy of ridicule?

In looking for precedence to allow the discretion to create new Australian law, the HCA favourably quoted the English Appeals Court case of R v Humphrys¹⁶. However in the very same case the House of Lords held that the civil law principle of issue estoppel, where an issue or point of fact decided in one trial cannot be revisited or challenged in another trial, definitely does not exist in the criminal law. So that being the case, how do we come to the rationale that revisiting a point of fact in one trial that was decided in an earlier trial, is somehow conflicting with the double jeopardy principle?

The answer might be that both the Queensland and Commonwealth appeals courts simply got confused over the difference between a long held principle and a long used common defence of that principle.

One does not have to search far to find the line: "the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct" being used as an alleged justification for the principles of autrefois acquit and autrefois convict. If, for the sake of argument, we are to grant it the status of a defence that can not be refuted, a genuine justification, then the fact remains that while it may be a justification, there is no reason why it should be elevated to the position of a principle in itself. The argument, such as it is, may have been used as a defence for over 100 years, but it still remains only that; a defence. Repeating a phrase innumerable times is still not enough to make it a principle.

As an analogy, one justification for the principle of freedom of the press is that, as no one can ever be sure of what the ultimate ‘truth’ is, it is always better to allow a new media voice into the market so as to ensure a possible extra point of view on any issue. The justification for the freedom of the press is therefore, amongst other reasons, the advancement of a multiple-media market. However it would be ridiculous to make the reason, a multiple media-market, become a principle in itself. Suppose a media corporation wanted to close, because of falling circulation, its newspaper in a market where there was only one competitor.  Should the government prevent the corporation doing so because it would be violating the principle of a multi-media market?

An Abuse of Process?

On reading R v Carroll there is an implication by the Australian High Court judges that the Crown Prosecutor in the perjury trial somehow acted in an underhand way and abused the criminal judicial process: this by bringing a further charge against the defendant which was “…merely a second attempt to secure a conviction.” We are told that what he should have done was simply to accept the appellate court decision handed down after the very first trial and let the accused Carroll walk away from responsibility for any and all crimes.

To comprehend this issue one first must be reminded of the nature of modern sentencing practices. In a normal criminal trial where the defendant is found guilty, the actions and attitude of the felon up until the point of sentencing are taken into account by the court.

Queensland’s Penalties and Sentences Act, 1992 declares in section 9 “In sentencing an offender, a court must have regard to [amongst other factors] —

• 2(f) the offender’s character,…
• 2(i) how much assistance the offender gave to law enforcement agencies in the investigation of the offence…
• 4(i) any remorse or lack of remorse of the offender”

Someone otherwise deserving of 25 years in jail for a serious crime without mitigating circumstances, might perhaps be granted a ten year discount if they had shown remorse and accepted responsibility from the start, pled guilty, and thus saved the community the cost and trauma of a trial.

Looking at this same sentencing practice from the alternative perspective, someone who didn’t accepted responsibility for his crimes might begin by receiving a basic 15 years. This then to be followed by an additional ten years to account for:

• his dishonest character as evidenced by his perjury;
• his refusal to aid law enforcement agencies in the investigation of the offence;
• and finally his lack of remorse.

In the original trial, R J Carroll dared to take the stand to give evidence (something he had the option not to do), swore an oath unto his God, and according to the jury of twelve good men and women true, then looked the members of the jury in their eyes and proceeded to violate that oath by telling all manner of falsehoods. 

In a normal criminal trial where the accused’s testimony has been proven by the prosecution to be false and he has subsequently been convicted and sentenced, the prosecution will not bother with a further prosecution for perjury despite the fact it is a separate and distinct crime. This is simply because the felon’s dishonest character was already taken into account in the sentencing stage and the prosecutor thus would not want to engage in what may colloquially be termed ‘double dipping’. 

However in the R v Carroll case, the situation was different. The prosecutor brought perjury charges, a procedure rare but not unknown following the loss of a criminal prosecution¹⁷, because the defendant would be otherwise free from answering for his crime of violating the sanctity of the court. The prosecutor presumably believed that there should be no circumstances in the judicial system where it is acceptable to lie under oath.

“…perjury must be seen as an offence against the administration of justice. It would be absurd not to do so. The offence of perjury protects interests that lie at the heart of the criminal trial process. The fact that one happens to be the accused in a criminal trial does not and should not confer a licence to lie on oath.” MCCOC Report¹⁸

In conclusion, there did not seem to be anything at all underhand or abusive with regards to the conduct of the prosecution. It was his role to prosecute crime where he saw it. Normally a convicted felon does also pay for his intransigence and dishonesty. The Queensland prosecutor saw no reason why a questionable acquittal by an appellate court should also grant immunity for perjury. He had further evidence to prove beyond doubt to a jury that the accused had perjured himself and he presented it.

It is ironic that when the High Court dismissed the appeal and accused the prosecutor of abuse of process,  they were in essence sanctioning one unequivocal case of abusing the court process: that of a person lying under oath.

“False evidence strikes at the whole basis of the administration of justice and indeed, it undermines the basis of it. Justice inevitably suffers, whatever be the motive for making of false statements on oath and whatever be the circumstances in which the offence of offences are committed.
The purpose of an appropriate sentence in this class of case is not only to punish the offender, but to deter others and make plain that the commission of this type of offence will normally be visited with serious punishment. General deterrence is the point of importance to be particularly emphasised in this type of case.”

 Adadee J, with whom Gleeson CJ (Chief Justice in Carroll case) and Hunt CJ at CL agreed, in R v Bulliman (unreported, CCA, 25 February 1993)¹⁹

Bibliography

“Thomas Becket” Encyclopaedia Britannica 2008 Ultimate Reference Suite
Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology, Cambridge University Press, New York, 2006.
Martin Friedland, Double Jeopardy, Clarendon Press, Oxford, 1969.
Double Jeopardy: Blurring the Lines Between State and Federal Crimes, Princeton University Law Journal, Fall 1997.

1 Friedland, Martin ‘Double Jeopardy’ Clarendon Press, Oxford, 1969, p.5
2 Encyclopaedia Britannica, Thomas Becket
3 1487, 3 Hen. VII, c. i.
4 Friedland, Martin ‘Double Jeopardy’ Clarendon Press, Oxford, 1969, p.9
5 1534, 26 Hen. VIII, c. 6(St. of the Realm)
6 New South Wales has now somewhat liberalised the law, and also but to a lesser extent, Queensland.
7 U.S. v. LANZA, 260 U.S. 377 (1922).
8 U.S. v. LANZA, 260 U.S. 377 (1922)., at 382
9 Herbert v. Louisiana, Abbate v. United States, Bartkus v. Illinois, United States v. Wheeler, and Heath v. Alabama
10 474 US 82 at 99.
11Blockburger v. U.S., 284 U.S. 299, 304 (1932)
12 Gleeson CJ & Hayne J, The Queen v Carroll [2002] HCA 55, para.1
13 Even if controverting an earlier court decision was justification to acquit the defendant, it is difficult to see how in this instance the verdict ‘denied’ the earlier decision. Declaring someone innocent is unquestionably controverting another declaration of guilt. This is because guilt and innocence are the specific concrete terms that someone either positively is, or positively is not, responsible for a crime. However as Chief Justice Gleeson in this very case declared: “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.” An acquittal, a ‘not guilty’ verdict, is simply a declaration that there is reasonable doubt. It does not say the accused is innocent. So if a court one day declares that the accused has incriminating evidence against him but not enough to be sure of guilt, and another day declares that, with the addition of new legally permissible evidence, there now is sufficient evidence to be sure of guilt, how can there be any ‘controversy’ or allegations of a contradiction in decisions?
14 Gleeson CJ & Hayne J, The Queen v Carroll [2002] HCA 55, para.18
15 Williams JA, [2001] QCA 394 at [62].
16 R v Humphrys, [1977] AC 1 at 19-21, 40, 48, 58.
17 R v McDermot,t  (1899) 24 VLR 636; R v Humphrys,  [1977] AC 1 : Chitwood v United States,  178 F 442 (1910). Also, in the UK in 2000 a man acquitted of murder was later sentenced to six years for perjury on new evidence proving his guilt. http://news.bbc.co.uk/2/hi/uk_news/england/tees/5150346.stm
18 Discussion Paper, Model Criminal Code Officers Committee of the Standing Committee of (Australian States’) Attorneys-General, November 2003, Ch. 2, p.71.
19 As quoted by Justice Shaw in R v Mahoney [2004] NSWCCA 138, para 13.
America’s Fifth Amendment

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