Questions to ask a Supporter of Double Jeopardy (DJ)

• Is DJ just for the sake of those innocent who may be prosecuted a second time or is it also for the sake of the guilty?
• Can you name one other field of human endeavour where, cost not being a significant factor, finality is given precedence over integrity of outcome?
• Do you believe someone who has been acquitted, but then subsequently admitted his crime, should have all rights to employment and other various services and privileges in society that would otherwise be denied someone with a criminal record?
• Defenders of DJ claim its finality aspect maintains respect for the judicial system which would otherwise be tarnished when consecutive criminal prosecution might bring alternate results. With regards to the R v Carroll case do you believe the general public’s respect for the law has been enhanced or detracted because of the law of Double Jeopardy?
• Despite whatever virtues there are in the law of DJ, the fact of the matter is that for the last 800 years some criminals have been, because of this legal technicality, metaphorically and literally getting away with murder. Does it bother you that this may continue for the next 800 years?
• Imagine your daughter had been the victim of an horrific, brutal crime perpetuated by someone sufficiently well resourced to bribe key witnesses and jury members at his subsequent trial so as to attain an acquittal. Even upon this obstruction of justice coming to light, would you feel ‘closure’ in knowing that there would never be another prosecution to make this person answer for what he did to your daughter?

Law for Law’s Sake

Autrefois Acquit means that an acquitted person we might know is guilty of a crime can still not be prosecuted a second time.

Imagine an hypothetical corollary of this.

Suppose a person is convicted of a crime by his peers and is now sitting in gaol. Everything about his trial, including allowing him full and competent representation, followed the complete letter of the law.

It later becomes public knowledge that the person is actually innocent of the crime. Due to s.399 of the Crimes Act (Vic) he was not able to subpoena his co-accused to give evidence in his defence during his trial. Also there has been recently introduced legislation by a new government winning office on the ‘personal privacy’ platform. Unfortunately therefore, evidence to support his innocence obtained by investigative newspaper reporters from an illegal wiretap as well as documentary evidence obtained during an illegal break and entry, has been held to be “inadmissible in any deliberation whatsoever by any government official or parties employed in an official function”. It follows that at any future appeals hearing no legally admissible evidence is available for presentation.

So even though the person is publicly known to be innocent, due to the paramount importance that due process in the law must always be followed,  there will be no avenues open for the court to release him and he will remain incarcerated as he is still  technically guilty.

If we should find the above scenario utterly preposterous and a totally impossible development in Australian Criminal Law, then can the scenario’s parallel application to the ‘previously acquitted’ rather than the ‘previously convicted’, really be that rational?

An inherent right or just a plain law?

any aspiration, belief or downright try-on can be formulated as a right, given sufficient nerve and hubris... decent polemicists understand that a claim will be greatly enhanced when framed as a fundamental human right, rather than as a humble appeal to government.     Professor Greg Craven^#

One of the defences of Double Jeopardy is that it is an inherent right that, like democracy or freedom of speech, dare not be encroached upon. The supporters of this argument will probably refer to article 14(7) of the 1966 International Covenant on Civil and Political Rights, if not amendment V of the American Constitution. The argument presented is that justification for Double Jeopardy should not be just the pragmatics of having a more efficient judicial process or maintaining respect for the judiciary, but must transcend to the loftier ideal of entrenching a fundamental sacred human right upon which lesser day to day legislation may be justified.

We must be careful however, to distinguish between laws that have been created solely for practicality to benefit people in certain situations, and laws which derive from fundamental human rights.

Civil or human rights do not randomly pop out of the air but generally are manifestations of universally held principles such as that ‘under the law we are all born equal’ or that ‘we are all free autonomous individuals’. Some examples of such developments might be:

Manifestations of personal sovereignty

• Freedom of association
• Freedom of speech
• Right to vote
• Freedom from unreasonable search and seizure
• Freedom from detention without due process (habeas corpus)

Manifestations of equality

• Equal treatment under the law
• Not to be discriminated against
• One vote one value
• Separation of church and state

When we look at Double Jeopardy, it is hard to see how it might derive from any universally held principle or standard of good. No other civil right when being described, seems to use the wording “…in these circumstances a person is no longer obligated to …”

 In fact, a law which prevents further prosecution for an unsolved crime seems to contradict contemporary concepts of openness, accountability, disclosure and that well known adage “the truth will out”.

An example of a law that would be justified by nothing more than its own practical effect would be that which releases minors from contractual obligations. To protect young people not yet of mature mind from possibly unwise obligations, a person under the age of adulthood cannot by law be held to account for any formal commitments he or she may have made. Even though this is a law that is definitely required, it is not a law we are necessarily proud of as there may well be instances where innocent merchants and tradespeople will suffer. Bearing that in mind it might then seem rather excessive to interpret the law so as to say that a minor has a fundamental human right to proudly disregard any agreement he has previously said he would honour.

Referring back to Double Jeopardy, despite other ways the concept can be described, it is still not false to define it as

 “the opportunity, in certain circumstances, to evade prosecution for a crime one is suspected of  committing.”

Whether or not the law is itself justified in order to protect the innocents, it is quite another thing to say that in certain pre-defined circumstances it is one of a citizen’s fundamental human rights to evade criminal prosecution.

Is Australia obligated to maintain Double Jeopardy?

The newspaper The Australian reported on the 11th February 2003 that the New South Wales Bar Association president, Bret Walker, declared that Australia would be in breach of its obligations under the International Covenant of Civil and Political Rights if it were to abolish or modify the law known as Double Jeopardy.

This ‘obligation’ certainly did not turn out to be an impediment to the Blair UK government recently abolishing the law in certain circumstances, perhaps because they were not willing to give the ICCPR as much relevance as others in our community would like it to possess.

The obligations of the government under the ICCPR may well be to promote certain concepts in circumstances where the public were otherwise not interested. However it is quite another thing to be obligated to promote concepts where the public are specifically opposed. The very nature of Australia being a democracy and a sovereign state means that the Australian people through their directly elected representatives in Parliament have complete discretion to institute whatever laws they may so wish (subject to the Constitution).

We can not have legislation ‘through the back door’ where parliamentarians may pass vague ‘feel good’ job lot commitments to human rights in lofty idealistic worded ratifications one day, and then later claim that  more specific legislation must be passed (or opposed) as it has been mentioned in the earlier parliamentary assent.

The people’s representatives in Parliament must decide whether or not to pass a bill generally only on the merits of said bill. They may be compelled to pass a bill, despite their own misgivings, if they have promised to do such to their constituents, because it is to their constituents that they owe their allegiance,  but they do not and certainly must not feel allegiance to any other extrinsic commitment, overseas body or international covenant.

#  Greg Craven, Conversations with the Constitution, University of NSW, Sydney, 2004 p.165