Page 2007 - Week 06 - Thursday, 9 June 2016
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In the Ampthill Peerage case, Lord Wilberforce of the House of Lords expanded on this issue and explained a central philosophical foundation of double jeopardy and justice, saying:
Any 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 solution it closes the book. The law knows, and we all know, that some fresh material may be found, which perhaps might
lead to a different result, but, in the interest 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 reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth … and these are cases where the law insists on finality.
Therefore any derogation from this golden rule of double jeopardy must be done very carefully, minimally and with a very sound rationale, if we consider those historical pronunciations on the matter.
The bill before us today proposes to provide an exception to the double jeopardy principle. It would allow a person who had been previously acquitted to be retried, contrary to the double jeopardy principle, in two circumstances. The first is where there is fresh and compelling evidence that the acquitted person committed an offence punishable by life imprisonment. The second situation is where the person’s trial was tainted and, as a result, the person was acquitted. This applies to offences punishable by 15 years imprisonment or more. The bill also allows a person who has previously been acquitted to be prosecuted for an administration of justice offence that is related to the proceeding. This overcomes an obstacle confirmed in the High Court case of Carroll.
The proposals in this bill are similar to changes that have already been made in several other jurisdictions. They are similar to proposals put forward by the Double Jeopardy COAG Law Reform Working Group. Similar exceptions to the double jeopardy rule have also been accepted in other common law jurisdictions such as New Zealand and the United Kingdom. It is fair to say that today in English common law jurisdictions double jeopardy is no longer entirely sacrosanct, and it is recognised that in the interests of justice limited exceptions are permitted.
What the ACT has done, however, is to enshrine some additional safeguards over and above those typically found in other jurisdictions. For example, under the ACT proposal the appeal right is limited to the most serious offences on the ACT statute book—those punishable by life imprisonment. This is not the case in other jurisdictions which allow the possibility of retrial for lesser offences. Here in the ACT we are taking a smaller and more careful step into the arena of double jeopardy reform. I believe that is a sensible approach.
Without going into great detail on the clauses in the bill—that is all set out in the explanatory statement—I accept that the government has put forward a model of double jeopardy reform that contains considerable safeguards. Despite the importance of the double jeopardy principle and the philosophy that underpins it, I think it is reasonable to make minor exceptions. Certainly, I think this approach is well accepted in the general community.
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