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Legislative Assembly for the ACT: 2002 Week 1 Hansard (12 December) . . Page.. 117..


MR STEFANIAK (continuing):

Mr Speaker, in April 2000, the directors of public prosecutions of the Commonwealth, the states and the territories met in Brisbane and passed two resolutions of significance to the administration of the criminal law. These resolutions were adopted unanimously. The first resolution was that it be recommended to the respective attorneys that the Standing Committee of Attorneys-General should consider amending our laws to provide for prosecution appeals against verdicts of acquittal. I will not deal with the second one, which was about a completely separate matter.

The Standing Committee of Attorneys-General looked at this matter favourably and left it to each jurisdiction to see what it should do. Tasmania and Western Australia have already enacted legislation to give the Crown a limited right of appeal. All the ACT and the other states, apart from those two, have at present is what are called reference appeals whereby, if a judge makes a gross error of law that leads to an acquittal, for example, all that can occur at present is that it can go to the Federal Court and the Federal Court can look at the matter and say that the judge made a bad error of law there and that becomes a precedent, but it does not rectify the situation.

Tasmania and Western Australia have now moved, in accordance with the matters discussed by the Standing Committee of Attorneys-General and the unanimous recommendation of the directors of public prosecutions in April 2000 to rectify those types of situations. New Zealand and Canada also have similar provisions in their law.

Mr Speaker, comments have been made about double jeopardy. I would like to say a few words in relation to that. There is a long-standing principle in that regard. Indeed, it is stated in article 14 (7) of the International Covenant on Civil and Political Rights, which reads:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

The key words there, Mr Speaker, are "finally convicted or acquitted". This bill is completely consistent with that in that what would occur would be a final conviction or a final acquittal because, if an error of law has been made, a new trial would be ordered-a new trial which, properly conducted, would then lead to either an acquittal or a conviction.

A fairly learned dissertation in relation to double jeopardy was given when this matter was before the previous Assembly. I understand that it came from the report of the scrutiny of bills committee. In Kepner v United States in 1904, Holmes J stated:

... logically and rationally a man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause. Everyone agrees that the principle in its origin was a law forbidding a trial in a new and independent case where a man already had been tried once. But there is no rule that a man may not be tried twice in the same case.


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