Two exceptions to double jeopardy rule added to legislation

6.00pm

Two exceptions to the double jeopardy rule are to be created to cover people who may have been wrongfully acquitted, Justice Minister Phil Goff said today.

Double jeopardy is a long-standing legal provision which prevents a person acquitted, convicted or pardoned for any offence being tried again for the same offence.

Exceptions to it will be in a Criminal Procedures Bill that will be introduced to Parliament shortly, Mr Goff said.

The Government had initially planned to introduce the bill last year.

Mr Goff foreshadowed one change to the double jeopardy rule in May 2002.

One exception would cover "tainted acquittals", Mr Goff said today.

"This will allow for the retrial of people who have been convicted of perjury or intimidating a witness during an earlier trial, if that was a significant factor in the acquittal," Mr Goff said.

"The second exception will cover cases where strong evidence of guilt is established after a person has been acquitted of a serious offence.

"This exception will only apply to offences that carry a maximum of 14 years or more imprisonment, and safeguards will be introduced to protect individuals from any abuse of the rule."

There remained sufficient grounds for maintaining the general rule of double jeopardy, Mr Goff said.

But there was also a strong argument for an exception to be made when a person had been acquitted of a very serious offence and then new evidence was found pointing to strong evidence of guilt.

"In such a case, double jeopardy principles are outweighed by a higher public interest in holding the individual to account for the offence," he said.

"Not to do so would represent a major injustice to any victims, and would potentially undermine public confidence in the criminal justice system.

"The legal system is not foolproof and that is why we have an appeals system and the Royal Prerogative of Mercy to guard against the possibility of wrongful conviction.

"But injustice can run both ways. This change will ensure injustice suffered by the victim can also be corrected."

Safeguards would be introduced to protect against any misuse by the state of the grounds for exceptions.

They were:

* evidence must be unable to have been discovered with the exercise of due diligence at the time of the initial trial.

* evidence must suggest a high degree of probability that the person acquitted was in fact guilty.

* it will only apply to serious crimes carrying a maximum penalty of 14 years or more imprisonment.

* the Solicitor-General must consent to police re-investigation and must be then satisfied that new and compelling evidence of guilt exists and that a retrial is in the public interest.

* The Appeal Court must then decide there is compelling new evidence of guilt and that a retrial would be in the interests of justice. There may be only one retrial.

Such an exception would bring New Zealand in line with like-minded countries, Mr Goff said.

Britain had changed the law along similar lines, while the European Convention on Human Rights provides that a case may be reopened if there is evidence of new or newly discovered facts.

In Australia, New South Wales and Victoria had indicated they favoured such a reform, he said.

The Law Commission recommended the change to the rules after gang member Kevin Moore was unable to be retried for murder.

He had been acquitted at his first trial, but it was then found that a witness he had organised to lie on his behalf gave false evidence.

The commission recommended the double jeopardy exception only apply for crimes that carried sentences of more than 14 years.

Kevin Moore and one other faced trial in 1992 for the murder of Robert Jillings in New Plymouth.

Moore called a witness to show how his fingerprints could have innocently ended up in the dead man's house.

He was acquitted but the witness later said he had lied at Moore's bidding. He pleaded guilty to perjury.

Moore was found guilty of conspiracy to pervert the course of justice and jailed for the maximum possible seven-year sentence.

- NZPA