Double jeopardy protection to go in NSW

Issue 

Dale Mills, Sydney

NSW Labor Premier Morris Iemma announced on September 5 that he plans to introduce legislation later this month to abolish the "double jeopardy" common-law principle for criminal trials. The principle states that people who have been tried and acquitted cannot be tried again for the same crime or offence.

Once Iemma's legislation is passed, NSW will be the only state or territory in Australia, and one of the few places in the Western world, to have removed this legal safeguard.

The September 7 Sydney Morning Herald reported that Iemma's proposed legislation would "allow those acquitted of serious crimes to be retried when fresh and compelling evidence comes to light. The exception to the double jeopardy rule will apply to crimes that carry a life sentence such as murder, aggravated sexual assault and some drug offences. But it will allow all types of fresh evidence to trigger a new trial, provided the Court of Criminal Appeal approves it."

Protection against double jeopardy is one of the oldest in the Western world. The Romans codified it in the Digest of Emperor Justinian in 533 AD. In England the protection against double jeopardy was considered a maxim of the common law from late medieval times until 2005.

In the United States, the protection against double jeopardy is part of the fifth amendment of the constitution. The European Convention of Human rights, signed by all the member countries of the EU, states: "No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same state for an offence for which he [sic] has already been finally acquitted or convicted in accordance with the law and penal procedure of that state."

Iemma's call for the abolition of the rule against double jeopardy has been placed in the context of developments in forensic technology, particular the use of DNA analysis.

At a media briefing on September 6, Iemma argued that protection argued against double jeopardy "is an ancient rule, but it's common sense to make use of technology where it can provide certainty and clarity". "If someone had been acquitted and there was fresh and compelling evidence that in fact they were guilty, using DNA technology to prove that and provide certainty and clarity and greater justice is a common sense measure."

At first sight, this argument might seem convincing. It has been the case that blood or other body samples found at crime scenes in the past have been used later to convict people, now that DNA matching technology exists.

However, this argument no longer holds water. Every serious crime scene is now tested for the presence of the suspect's DNA. If DNA is found, it is used at the (first) trial. There simply won't be DNA magically found at crime scenes where it was missed the first time, as crime scenes are cleaned up when the forensic gathering activity has finished.

Additionally, the endemic history of corrupt and improper practices by the NSW police means that DNA being "found" or matched the second time round would be inherently suspect.

Rather than the abolition of the double jeopardy protection being prompted by developments in new technology, Iemma is engaged in a political manoeuvre to win votes in next March's NSW election.

"What the government is doing with this bill is overturning a few hundred years worth of legal history and legal principle", NSW Bar Association representative Robert Toner, SC, told journalists on September 5. "That's a principle that's existed for a long time and it is part of the matrix of protections for people's liberties in our community. Our concern is that this really is part of a reflex response to the law and order debate with the government not wanting to be seen as weak on crime."

David Bernie, vice-president of the NSW Council for Civil Liberties said that "once you start going down this path it means that people can never be certain, even after they've faced trial and been acquitted. They should be able to know that they will not face trial again."

The Greens have announced that they will oppose Iemma's bill. "Overturning the double jeopardy rule runs the risk of innocent people being jailed and criminals walking free", Greens MP Lee Rhiannon told the SMH.

"This government, with the [Coalition's] compliance, has developed an unhealthy habit of lightly discarding fundamental justice principles which are the mark of a civilised and fair society.

"Scrapping this 12th century rule, which prevents people being tried again after acquittal, will undermine a cornerstone of our justice system."

However, Labor's representation in the NSW parliament, combined with Coalition support, means that Iemma's proposed legislation is likely to become law.