Truth or Justice? Double Jeopardy Reform for Queensland: Rights in Jeopardy

TRUTH OR JUSTICE? DOUBLE JEOPARDY REFORM FOR QUEENSLAND: RIGHTS IN JEOPARDY M ICHELLE E DGELY * ABSTRACT This paper discusses proposed reforms to double jeopardy contained within the Criminal Code (Double Jeopardy) Amendment Bill 2007 (Qld) which is likely to be passed by Queensland’s parliament later this year. The paper argues that the development of double jeopardy rules and the reform debate has been muddied by doctrinal confusion over whether double jeopardy is primarily a procedural right for the protection of accused individuals or a procedural rule to protect the institutional integrity of judicial outcomes. The paper critically examines the underlying rationales for double jeopardy protections along with arguments in support of the proposed reforms. The discussion of the proposed Queensland provisions takes place with regard to similar reforms that have been recently implemented in the UK and NSW and which are planned for New Zealand. The rule against double jeopardy has traditionally been thought of as a hallowed canon of the common law, a golden rule which sits at the heart of all English common law systems. 1 Double jeopardy is revered as a principle ‘vital to the protection of personal freedom’. 2 It is claimed that the rule underpins the legitimacy of the legal system because it recognises the incontrovertibility of verdicts, which are transformed, via the declared judgment, into a record of a ‘higher nature‘. 3 Later this year, the Criminal Code (Double Jeopardy) Amendment Bill 2007 (the Bill) will pass into law in Queensland. 4 Queensland will thereby become the second * 1 2 3 4 Lecturer, Griffith Law School, Griffith University. Lord Justice Auld, ‘Chapter 12 – Appeals’, Review of the Criminal Courts of England and Wales, (2001) [50], <http://www.criminal-courts-review.org.uk> at 18 July 2007; Davern v Messel (1983) 155 CLR 21, 62 (Murphy J). (1983) 155 CLR 21, 62 (Murphy J). Pearce v R (1988) 194 CLR 610, 625 (Gummow J). Gummow J notes that this principle is expressed in the Latin maxim: transit in rem judicata. See also Rogers v R (1994) 181 CLR 251, 273 (Deane and Gaudron JJ). The Legislative Assembly of Queensland’s Notice Paper for 7 August 2007, 5, lists the Bill on the General Business agenda for this 52nd sitting of Parliament. 108 Vol 7 No 1 (QUTLJJ) Truth or justice? Double jeopardy reform for Queensland: Rights in jeopardy Australian State to introduce double jeopardy reform in the past twelve months, following the passage in NSW of the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006. Further States may follow. The Queensland Bill implements, with few changes, the model for double jeopardy reform adopted at the Council of Australian Governments meeting in April 2007. 5 The Bill creates two classes of exceptions to the ancient common law principle of double jeopardy. That principle provides, broadly speaking, that no person should be twice placed in jeopardy of conviction or punishment for the same offence. 6 The principle gives rise to a rule that, once convicted or acquitted, an accused person is immune from further prosecution for that offence, or for a different offence covering the same factual elements. 7 The first exception to the principle of double jeopardy under the Bill will allow someone acquitted of murder to be retried for murder if, after their acquittal, ‘fresh and compelling evidence’ of the person’s guilt emerges. 8 The second exception applies to offences involving a maximum penalty of 25 years or more imprisonment, where an acquittal is ‘tainted’ because of the commission of an ‘administration of justice offence’. 9 ‘Administration of justice offences’ include offences which are directed at undermining the integrity of the trial process, such as perjury and witness tampering. 10 The ‘tainted acquittals’ exception is available only if, but for the administration of justice offence, the accused would probably have been convicted at the original trial. 11 The debate surrounding double jeopardy reform centres around two propositions, both held by proponents to be of cardinal importance. The first is that a guilty offender should not be able to escape punishment for a serious crime. If an acquittal is found to have been wrongful, the inaccuracy should be rectified. To the extent that the criminal justice system fails to correct known errors, its legitimacy is impaired. 12 The second proposition is that society as a whole, and especially the State, must, after lawful avenues of appeal are exhausted, accept an acquittal as inconvertibly correct. The legitimacy of the criminal justice system requires that final judgments of the court be accepted as final. 13 5 6 7 8 9 10 11 12 13 Council of Australian Governments ‘Double Jeopardy Law Reform: Model Agreed by COAG’, 13 April 2007, <www.coag.gov.au/meetings/130407/> at 18 July 2007. Victoria and the ACT reserved their positions on the recommendations for reform. Ben Fitzpatrick, ‘Double Jeopardy: One Idea and Two Myths from the Criminal Justice Bill 2002’ (2003) 67(2) Journal of Criminal Law 149, 150. Criminal Code (Qld) s 17; (2002) 194 ALR 1. Further manifestations of the principle are discussed below in Part 1.2. Criminal Code (Double Jeopardy) Amendment Bill 2007 (Qld) s 678B. Criminal Code (Double Jeopardy) Amendment Bill 2007 (Qld) s 678C. Criminal Code (Double Jeopardy) Amendment Bill 2007 (Qld) s 678. Section 678 defines an ‘administration of justice offence’ as any offence under Chapter 16 of the Criminal Code (Qld). Criminal Code (Double Jeopardy) Amendment Bill 2007 (Qld) ss 678C, 678E. Ian Dennis, ‘Rethinking Double Jeopardy: Justice and Finality in Criminal Process’ (2000) Criminal Law Review 933, 944; Mirko Bagaric and Luke Neal, ‘Double Jeopardy: Time for a Fundamental Re-think?’ (2003) 3(4) Criminal Law News Victoria, LexisNexis Butterworths Online; Queensland, ‘Second Reading Speech’, Parliamentary Debates, Legislative Assembly, 2 Nov. 2006, 470 (Peter Wellington). Fitzpatrick, above n 6, 163. This was also the position adopted by the High Court in R v Carroll (2002) 194 ALR 1. For example, see comments by Gleeson CJ and Hayne J at 13. 109 EDGELEY (2007) The debate therefore reveals a tension between the two values most fundamental to the criminal justice system’s claim to legitimacy: truth and justice. A generation ago, Lord Wilberforce explained that: [a]ny determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that conclusion, it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty, and security, it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduc (...truncated)