Double jeopardy goes on trial

Should there be exceptions to the rule that you cannot be tried twice for one crime? asks ANGELA GREGORY.

Double jeopardy sounds like a Hollywood thriller. But it is at the heart of ancient principles of law stretching back hundreds of years.

The New Zealand Law Commission scrutinised what is known as the "rule against double jeopardy" when a New Plymouth gang member was acquitted of murder after getting a witness to lie at his trial.

In a report released this week, the commission says it is time to change the law to try and stop such things happening again.

The recommended changes appear to have the support of Justice Minister Phil Goff and National justice spokesman Wayne Mapp.

What is double jeopardy?


It literally means to be twice placed at risk, in this case of a criminal conviction.

When lawyers talk about the "rule" against double jeopardy, they mean that no one acquitted of a crime can be retried for the same offence.

It is an ancient part of the common law which New Zealand inherited from England, and is written into our 1961 Crimes Act. In England its origins even predate the 1215 Magna Carta.

What are the reasons for the rule?


One of its fundamental purposes is to prevent the harassment of an accused person through repeated prosecution for the same matter.

It protects individuals from abuse of process by the Crown.

The idea in at least the Anglo-American system of jurisprudence is that the state, with all its resources and powers, should not be allowed to make repeated attempts to convict an individual for an alleged offence. Doing so could subject the individual to embarrassment, expense and anxiety.

Repeated attempts to get a conviction also enhance the possibility that an innocent person might be found guilty.

Are there any exceptions already?


There are two rare situations in New Zealand where a person acquitted can be retried.

The Crown can request a judge to state his or her case on an issue in law and a retrial may be directed on appeal. In that case, the accused knows before the verdict that an acquittal will be challenged.

A second instance may follow the setting aside on judicial review of an acquittal for minor offending.

Why did the Law Commission investigate the rule?


The Law Commission was asked in September 1999 by Minister of Justice Tony Ryall to consider the case of Kevin Moore.

In May 1992, Moore was tried with a fellow member of New Plymouth Black Power for murdering a member of a rival gang. A defence witness gave alibi evidence in favour of Moore and his co-accused that may have led to their acquittal.

That August, Moore was convicted of conspiracy to pervert the course of justice by getting a witness to lie. He was sentenced to the maximum seven years' jail.

Justice John Doogue said at the time:"You have literally got away with murder and avoided life imprisonment."

Moore would be eligible for release on parole after two years and four months, compared with the minimum non-parole period of 10 years or more for murder. He cannot be retried for the murder because of the double jeopardy rule.

Are such cases common?


Not at all in New Zealand.

But the Law Commission is thinking of the future and wants to remove any incentive for criminals to similarly wriggle out of a conviction by committing a further crime.

What is the Law Commission recommending?


A limited exception to the fundamental rule of law that no one acquitted of a crime can be tried again for the same offence.

The commission says the exception should apply where the accused has secured an unmerited acquittal on a serious charge like perjury, or by other conduct that has perverted, prevented, obstructed or defeated the course of justice.

Such "administration of justice" offences also include fabricating evidence, bribing a judicial officer, corruption and bribery of a law enforcement officer, and corrupting juries and witnesses.

The commission wants the exception confined to the most serious cases - crimes carrying 14 years' imprisonment. The most obvious example is murder, but other serious crimes could include treason, sabotage, sexual violation, wounding with intent, and crimes involving Class A drugs.

The commission said the exception would require that the accused be convicted of an administration of justice crime.

It would also depend on the judgment of the High Court, which must be satisfied on a number of grounds.

A critical point is that the court must believe it likely that the acquitted persons would not have been acquitted had they not somehow corrupted their trial.

What is the reasoning?


The commission argues that if an accused corrupts his or her own trial, that person loses the right to protection under the double jeopardy rule.

The rule is only intended for "clean"trials.

Why not just increase the penalty for administration of justice crimes?


Law Commission president Justice David Baragwanath said that option had been carefully considered.

The commission finally decided it would in effect be sleight of hand indirectly doing what should be faced up to in an honest fashion.

It was better that the person be retried.

What are some of the other arguments supporting the change?


Public confidence in the justice system could be shaken if an acquittal were not able to be reviewed where it was clear that the accused had deliberately set about to pervert the course of justice.

There is also concern that the guilty can escape punishment.

And against making changes?


Any dilution of the deeply entrenched double jeopardy rule would tend to to impair the important values it protects.

Changes could be seen as unnecessary tinkering, given the few cases to which the new rule would be any application.

Repeated trials might increase the likelihood of wrongful conviction, and the accused are entitled to feel a sense of "closure" when their trial ends.

What do people think?


Defence lawyer Gary Gotlieb says the double jeopardy principle is an important cornerstone of the law.

The critical point is the certainty provided to the accused, who are left knowing where they stand at the end of a trial.

Law Society criminal law committee convener Judith Ablett-Kerr, QC, has labelled the proposed change an over-reaction to one case.

It would erode one of the most important features of our criminal justice system, and undermine the principle that the jury's verdict was final.

But a spokesman for the Council of Civil Liberties, Phil Recordon, said he thought the proposal was sensible. "The grounds are narrow and deal with conspiracy to pervert the course of justice."

Mr Recordon said any changes should work equally in favour of people wrongfully convicted of crime.

"What's sauce for the goose is sauce for the gander."

Victim Support chief executive Steve Caldwell agreed that the perversion of justice was a legitimate exception to the double jeopardy rule.

He said victims would rather testify again than live with the knowledge that justice was not done the first time around.

What about the Bill of Rights?


The double jeopardy rule is restated in section 26 of the New Zealand Bill of Rights Act 1990.

It provides that no one who has been finally acquitted or convicted of or pardoned for an offence shall be tried or punished for it again.

New Zealand has also acceded to the International Covenant on Civil and Political Rights which provides that no one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

The Law Commission argues that retrial of defective proceedings would not offend against either of those provisions.

What do they do in other countries?


The English have already adopted changes along the lines that the Law Commission has recommended.

There it is known as the "tainted acquittal exception," and the English Law Commission is now recommending further changes.

That commission believes that for murder cases the Court of Appeal should have the power to quash an acquittal where there is reliable and compelling new evidence of guilt, and a retrial would be in the interest of justice.

Australian states and territories have legislation which enshrines the rule against double jeopardy, as does Canada.

In Germany an acquittal can be re-opened after it has become final where documents have been faked, a witness or expert gives false evidence, a judge has committed a crime in relation to his or her duty, or the defendant has made a credible confession.

In Belgium, both prosecution and defence can appeal against verdicts in most courts, and similarly in the Netherlands, with the safeguard that a defendant can be convicted on appeal only if the court is unanimous.

In Italy and Spain cases can only be reopened and retried where there has been a conviction.

What happens next?


Mr Goff, who supports the proposals, has said he will present a paper to cabinet recommending a law change.

If the cabinet agrees, it will be drafted into a bill and introduced to Parliament.

Would new legislation be retrospective?


The Law Commission has not recommended the law be retrospective, but that would be for Parliament to decide.