Law to allow double jeopardy

By KEVIN TAYLOR, political reporter


The Government will introduce two exceptions to the long-established legal principle that a person cannot be prosecuted twice for the same crime.

But the move to allow retrials where "new and compelling" evidence has been found is likely to face legal as well as political opposition.

Justice Minister Phil Goff said yesterday that the Government would introduce a bill in June or July creating two exceptions to the rule known as double jeopardy, which prevents the state prosecuting someone already acquitted of the offence alleged.

The exceptions will allow retrials of acquitted people where:

* They have been convicted of perjury or intimidating witnesses during an earlier trial if that was a significant factor in their acquittal.

* New and compelling evidence of guilt has been established on crimes carrying a maximum of 14 years or more imprisonment.

But the second provision is likely to run into opposition from the Law Society, Law Commission, and National Party. Mr Goff said he anticipated the provision relating to "tainted" trials would be used more than the second exception relating to new and compelling evidence, which would rarely arise.

He could not cite a local example where "new and compelling" evidence had arisen after an acquittal in a serious case.

However, he pointed to the 1955 case of Emmett Till, a 14-year-old black American killed by two white men who told a magazine about the killing after their acquittal.

Mr Goff said he did not want a similar situation arising here.

"I don't want to have a situation where a guy gets acquitted and brags that he actually did it. That just brings the law totally into disrepute; it is patently an injustice."

National and Act voiced support for the first exception yesterday, but questioned the second.

National justice spokesman Richard Worth said the exception on the grounds of new and compelling evidence seemed "unsafe and unwise".

"It seems completely wrong and inconsistent with the principles on which any sound legal system is based that if the Crown fails to prove for whatever reason the guilt of a person, that they can have an opportunity of coming again.

"Mr Goff is dreaming if he thinks an accused person can get a fair second trial after the Court of Appeal has found 'compelling evidence' of guilt."

Act justice spokesman Stephen Franks said he had reservations about retrials based on strong new evidence of guilt, but wanted to see details of the measure.

He would not want to see the exception used to cover for inadequate prosecution cases.

Law Society criminal law committee convener Philip Morgan, QC, said he opposed the "new and compelling" exception to double jeopardy and expected the proposal would be controversial.

"It does mean the state can have another go. The rule against double jeopardy is that this cannot happen - and we've even specifically said so in our Bill of Rights Act.

"I don't think we should be lightly going about putting into law provisions which are directly contrary to our Bill of Rights Act."

Mr Goff said the Law Commission supported the first exception but opposed the second.

United Future law and order spokesman Marc Alexander welcomed the proposals but said they should be widened further to include acquittals based on technicalities.

Mr Goff said a series of safeguards would apply to cases where new evidence arose. The Court of Appeal would determine what constituted "strong evidence" and the Solicitor-General would first have to consent to a police re-investigation. In addition, only one retrial would be allowed.

The evidence would have to be "compelling" and unavailable at the time of the original inquiry.

However, the provision would not be an excuse for "shonky police investigations".

Mr Goff said Britain had just changed the law to allow new and compelling evidence as a ground for opening a new trial.

"We got double jeopardy from the British, and the British felt moved last year to change their legislation."

The bill was 95 per cent drafted.

"I think there will be debate on it and that's a healthy thing ... but injustice can run both ways ...

"There are at the moment no protections against wrongful acquittal."


WHAT IS DOUBLE JEOPARDY?

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

A long-standing rule to ensure the Crown does not subject someone to repeated prosecutions for an offence for which they have already been acquitted.

Proposed exceptions Allowing retrials of people who are convicted of perjury or intimidating a witness during an earlier trial, if that was a significant factor in the acquittal.

Allowing retrials where new and compelling evidence of guilt is established after someone has been acquitted of a crime carrying a maximum term of 14 years or more.