Double Jeopardy Reform

Double Jeopardy Reform

In 2007 the Queensland Government passed reforms on the defence of double jeopardy. The Criminal Code (Double Jeopardy) Amendment Act 2007 amended the Criminal Code, allowing for 2 exceptions to the double jeopardy rule, allowing persons acquitted of an offence to be retried.

  • The Court may order a person to be retried for the offence of murder where there exists fresh and compelling evidence; alternatively
  • The Court may order a person be retried for an offence that is punishable by life imprisonment or by a period of imprisonment of 25 years where there is evidence of a tainted acquittal. A tainted acquittal is an acquittal where the accused or another person has been convicted of an administration of justice offence in relation to the proceedings that led to the acquittal, and if not for the offence a conviction would have been more likely than not.

Notably however:

  1. These changes only apply to acquittals that occurred after the passing of the law; and
  2. The changes also do not apply if the person was acquitted, but found guilty of a lesser offence, e.g a person is acquitted of murder, but found convicted of manslaughter.

Early this month the Queensland Attorney-General stated that a ‘significant roadblock to justice will be removed’ by removing the clause restricting the exceptions to double jeopardy to acquittals that occurred after the amendments were passed in 2007.

This would mean that a retrial would be allowed for any past acquittal on the charge of murder where fresh and compelling evidence arises, or where an offence punishable by 25 years or life imprisonment is the subject of a tainted acquittal. The law would no longer have regard to when the acquittal occurred. This puts Queensland into line with other States.

Some media outlets have reported that the double jeopardy defence is being removed in its entirety. This is not the case. As recently as R v Dribble double jeopardy has been used as a valid and effective defence post the 2007 reforms.

It remains to be seen which cases the Queensland Government will seek to be retried

Double Jeopardy

“A person can not be twice punished… for the same act or omission…” 

Double jeopardy is a fundamental and integral part of our legal system. It prevents a person from being tried or convicted more than once for the same act. A recent case in the Supreme Court of Appeals highlights the practical application of this concept.

In the case of R v Dibble, Mr. Dibble was charged and convicted for committing a public nuisance, in which police observed him swinging haymaker style punches as the complainant. As a result of which, the complainant suffered significant facial injuries. Mr. Dibble was sentenced in the Magistrates Court to pay a fine of $400 after he entered a plea of guilty. No conviction was recorded.

More than a year after the judgment was handed down, police charged Mr. Dibble with causing grievous bodily harm. The new charge was the result of the police having received a medical opinion about the injuries sustained.

Mr. Dibble fought these charges on the basis that they related to, and relied upon acts that he had already been punished for.

The Crown however sought to differentiate the acts required for a public nuisance charge from a charge of grievous bodily harm. Essentially arguing that a public nuisance charge did not require the blows to land and as such the landing of blows was not an act or omission that Mr. Dibble was punished for in his original sentence.

The Crown therefore proposed that Mr. Dibble should be able to be charged with grievous bodily harm. As this charge relates and relies upon the landing of the blows, an act that the Crown contends was unpunished in the previous charge.

In the Supreme Court of Appeal, Fraser, Gotterson JJA, and Boddice J indicated that the defining of the punishable act in a conviction relies heavily upon how the original charge was particularised. In this case, the original charge made explicit and clear mention of multiple punches landing on the complainant, the conviction also indicates clearly that the defendant was convicted on the basis of these actions.

The punishable act or omission in question therefore included the punches that landed on the complainant. As such, Mr. Dibble was unable to be charged a second time with the more serious offence of grievous bodily harm.

Bosscher Lawyers has over 100 years of collective experience in the field of criminal law. If you have a criminal law problem, our Brisbane Criminal Lawyers are here to help. Call Bosscher Lawyers on 1300 729 316.

By Alison Campbell