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

IT Worker Sentenced Over Online Chat Session

Arthur Borg, 51, an IT worker employed by the Queensland Department of Education was sentenced to 18 months after pleading guilty to four charges of using the internet to procure a child under 16 years. The offences were committed between February 15 and 19 in 2013 after Mr Borg had engaged in sexualised online chat sessions with a police officer on an incest-themed site. Mr Borg believed the police officer to be a 14-year-old girl. On February 20, Mr Borg had arranged to meet the girl at Nundah train station, but was instead was met by police officers.

Alex Jones, a Senior Associate with Bosscher Lawyers, along with barrister Jeff Hunter QC, led the defence of Mr Borg. The Court heard that Mr Borg had since resigned from his position with the Queensland Government, adopted the Buddhist faith, and has begun regular counseling that adresses his offending behaviour.

Judge Harrison accepted that Mr Borgs remorse was legitimate, and that he has taken steps to address his behaviour. Mr Borg will be released on a suspended sentence after serving 3 months in jail.

Fardon Released – Parts of New Sex Offender Legislation Ruled Invalid

The Supreme Court of Appeal on Friday dismissed an appeal by the Attorney-General, finding that the original judgment by Justice Lyons was correct in its decision to release Robert Fardon.

The Court also ruled that recent amendments to sex offender and dangerous prisoner legislation, effectively allowing Mr Bleijie to overrule the Supreme Court and indefinitely prevent the release of a prisoner are invalid. The changes were found to be wholly incompatible with the institutional integrity of the Supreme Court.

Currently the Queensland Government is investigating whether they can appeal the decision to the High Court.

It has been 9 years since Robert Fardon lost his appeal against the current Queensland sex offender laws in the High Court. In 2004 Queensland passed legislation that allowed the Supreme Court to indefinitely detain a prisoner serving a sentence involving both violence against a child and a serious sexual offence, at the request of the Attorney-General. Mr Fardon argued that the legislation conferred a non-judicial power on the Supreme Court, and that the imposing of the power weakened the public perception of the Court as impartial.

The majority decision (6:1) however found that the law was valid, as it did not confer non-judicial power to the Supreme Court, and there was nothing in the Act that would lead a reasonable person residing in Queensland to believe that the Supreme Court is a non-partial tribunal.

Mr Fardon is currently in secure accommodation and is subject to strict court orders. These include intensive supervision, a restriction on who he may associate with, GPS tracking, home visits, drug and alcohol testing, and restrictions on where he may go.

The Other Bikie Laws in Queensland

Recently the Queensland Government has turned its attention to the other bike riders in Queensland, the cyclists. A parliamentary committee has advised the Queensland Government on a range of potential changes to the current laws in regards to cyclists.

In Queensland the Transport Operations (Road Use Management-Road Rules) Regulation 2009 governs the rights and responsibilities of cyclists. Under Section 15, bicycles are considered a vehicle and as such riders have similar rights and responsibilities to vehicle operators, a notable exception is that bicycles are exempt from registration.

A rider is required to acquaint themselves with the Queensland Road User Rules and obey traffic rules and road signs. Amongst other requirements, a cyclist must:

  • Observe traffic regulations and road signs just like all other vehicles on the road;
  • Use the bike path at all times, unless prohibited;
  • Observe the speed limit;
  • Wear visible clothing and use reflectors and lights at night;
  • Wear a helmet that meets the Australian Standards for an approved helmet (Rule 256);
  • Keep the bicycle in good working condition at all times and have at least one effective brake and a warning device such as bell or horn (Rule 258); and
  • Maintain a distance of at least 2 metres from the rear when following another motor vehicle for more than 200 metres (Rule 255).

Helmet Law

In Queensland a helmet is mandatory for all ages. Under Section 256, the rider and any passenger must wear an approved bicycle helmet securely fitted and fastened to their head at all times. The law applies to all ages, however for children 10 to 16 years old, fines are imposed upon the third violation only.

A person can only be exempted from wearing helmet for medical reasons or for some physical reasons that make it unreasonable to wear a helmet.

The Queensland Government however has recently stated that religious believers who by reason of their religious belief wear a headdress (for example a turban) as part of their religious practice will be soon exempt from helmet laws.

The decision to provide this exemption originated from the outcome of a case against Mr Jasdeep Atwal. Mr Atwal is of the Sikh faith and challenged the $100 ticket issued to him for non-wearing of a helmet.

Practicing members of the Sikh religion do not cut their hair. Instead, their hair is wrapped up in a turban, which makes it practically impossible for them to wear a helmet.

In March, Atwal was found guilty of failing to wear a helmet, but he was not fined nor was he convicted of the offence. The decision led to the government’s proposal to amend the Helmet law in April 2013.

The Proposed ‘One-Metre Rule’

With the rise of road fatalities and serious injuries involving bicycles in Queensland, the Queensland Government has considered the adoption of new regulations at the suggestion of the parliamentary committee.

Some of the changes the parliamentary committee has proposed include:

The proposal to impose a ‘one-metre rule’ between motorists and cyclists to prevent road accidents.

Transport and Main Roads Minister Scott Emerson said Parliament’s Transport, Housing and Local Government committee would review and consider the possibility of passing the law.“There has been a lot of focus recently on bike safety and I’ve listened to that feedback and decided to take a closer look at the evidence and laws,” Mr Emerson said.

The proposal to a two-year trial mandatory ‘no-helmet’ policy for cyclists aged over 16 years in less risky areas.

Increasing fines for cyclists

The committee recommended that fines should be increased to match those that apply to motorists.

Overtaking and Stop Sign changes

The proposed changes would see that cyclists are only required to slow down at a stop sign, and not required to stop.

Bosscher Lawyers

If you have been charged with a traffic offence, Bosscher Lawyers are here to help. Criminal Lawyers Brisbane at Bosscher Lawyers are experts in criminal defence and as one of Australia’s largest criminal law practices, we have represented thousands of Australians.

Bosscher Lawyers prides itself on honest advice, client involvements and efficient, cost effective representation. You can contact Bosscher Lawyers on 1300 729 316.