Appeal from acquittal

10.124         ‘It is a golden rule, of great antiquity, that a person who has been acquitted on a criminal charge should not be tried again on the same charge’.[147] To try a person twice is to place them in danger of conviction twice—to ‘double their jeopardy’. The general principles underlying the double jeopardy rule include:

the prevention of the State, with its considerable resources, from repeatedly attempting to convict an individual; the according of finality to defendants, witnesses and others involved in the original criminal proceedings; and the safeguarding of the integrity of jury verdicts.[148]

10.125         The principle applies where there has been a hearing on the merits—whether by a judge or a jury. It does not extend to appeals from the quashing or setting aside of a conviction,[149] or appeals from an acquittal by a court of appeal following conviction by a jury.[150]

10.126         The rule against double jeopardy can be traced to Greek, Roman and Canon law, and is considered a cardinal principle of English law.[151] By the 1660s it was considered a basic tenet of the common law.[152] Blackstone in his Commentaries on the Laws of England grounds the pleas of autrefois acquit (former acquittal)and autrefois convict (former conviction for the same identical crime) on the ‘universal maxim of the common law of England, that no man ought to be twice brought in danger of his life for one and the same crime’.[153]

10.127         In Australia, the principle of legality provides some protection for this principle.[154] When interpreting a statute, courts will presume that Parliament did not intend to permit an appeal from an acquittal, unless such an intention was made unambiguously clear.[155] For example, in Thompson v Mastertouch TV Service, the Federal Court found that the court’s power to ‘hear and determine appeals’ under s 19 of the Federal Court Act 1970 (Cth) should not be interpreted as being sufficient to override the presumption against appeals from an acquittal.[156] However, the principle of legality has not been applied to confine s 68(2) of the Judiciary Act, which can operate to ‘pick up’ state laws that allow an appeal against an acquittal and apply them in state courts hearing Commonwealth offences.[157]

10.128         The double jeopardy principle is enshrined in international law. Article 14(7) of the ICCPR states that 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’.

10.129         Bills of rights and human rights statutes prohibit laws that permit an appeal from an acquittal in the United States,[158] Canada[159] and New Zealand.[160] The prohibition is also recognised in the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT).[161]

Laws that allow an appeal from an acquittal

10.130         Section 73 of the Constitution provides the High Court with extensive jurisdiction, including, the High Court has held, jurisdiction to hear appeals from an acquittal made by a judge or jury at first instance.[162] However, while it is within the Court’s power to hear an appeal from an acquittal, the Court will generally not grant special leave, unless issues of general importance arise.[163] In R v Wilkes, Dixon CJ said the Court should

be careful always in exercising the power which we have, remembering that it is not in accordance with the general principles of English law to allow appeals from acquittals, and that it is an exceptional discretionary power vested in this Court.[164]

10.131         The ALRC is not aware of any other Commonwealth law that allows an appeal from an acquittal.[165]

10.132         Some state laws permit an appeal from an acquittal,[166] and such laws will be picked up and applied by s 68 of the Judiciary Act.[167] The state laws largely follow the model developed by the Council of Australian Governments in 2007. Professor Gans has raised a number of concerns about the Victorian law,[168] including that it ‘allows appeals against acquittal in some circumstances where there isn’t fresh and compelling evidence’ and includes a narrower safeguard than the one proposed by the Council of Australian Governments.[169]

10.133         However, as noted above, state laws are not reviewed in this report, and nor is s 68(2) of the Judiciary Act—the general policy of which is to ‘place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice’.[170]

10.134         However, a few possible justifications for limiting this principle may be noted. Victims of crime and their families will sometimes believe a guilty person has been wrongly acquitted. For these people particularly, the application of the principle that a person should not be tried twice may be not only unjust, but deeply distressing. The principle will seem acceptable when the person acquitted is believed to be innocent, but not when they are believed to be guilty. A balance must be struck, it has been said, ‘between the rights of the individual who has been lawfully acquitted and the interest held by society in ensuring that the guilty are convicted and face appropriate consequences’.[171]

10.135         Professor Gans suggested two general criteria that might be used to assess the question of justification. These are, first, ‘does the law contain appropriate constraints to ensure that the prosecutor cannot take advantage of the process to simply make repeated attempts to try a defendant until he or she is fortuitously convicted?’, and second, ‘do defendants have at least the same ability to appeal against a final conviction?’[172]

10.136         Limits on the principle may only be justified when they are strictly necessary. The Law Commission of England and Wales considered the rule against double jeopardy and prosecution appeals following a reference in 2001. Its findings and recommendations have laid the foundation for laws limiting the rule in UK and in other jurisdictions, such as New South Wales. The Law Commission concluded that interference with the rule may be justified where the acquittal is ‘manifestly illegitimate’ and ‘sufficiently damages the reputation of the criminal justice system so as to justify overriding the rule against double jeopardy’.[173] The scope of the interference must be clear-cut and notorious.[174]

10.137         The Law Commission recommended that additional incursions on the rule against double jeopardy be limited to acquittals for murder or genocide.[175] This built on existing rights of appeal from an acquittal where the accused has interfered with or intimidated a juror or witness.[176]