8.145 ‘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’. 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.
8.146 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, or appeals from an acquittal by a court of appeal following conviction by a jury.
8.147 The rule against double jeopardy can be traced to Greek, Roman and Canon law and is considered a cardinal principle of English law. By the 1660s it was considered a basic tenet of the common law. 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’.
8.148 In Australia, the principle of legality provides some protection for this principle. 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. 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. 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.
8.149 The double jeopardy principle is protected 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’.
8.150 Bills of rights and human rights statutes prohibit laws that permit an appeal from an acquittal in the United States, Canada and New Zealand. The prohibition is also recognised in the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT).
Laws that allow an appeal from an acquittal
8.151 Section 73 of the Constitution provides the High Court with extensive jurisdiction, including jurisdiction to hear appeals from an acquittal made by a judge or jury at first instance. 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. 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.
8.152 The ALRC is not aware of any other Commonwealth law that allows an appeal from an acquittal.
8.153 Some state laws permit an appeal from an acquittal, and such laws will be picked up and applied by s 68 of the Judiciary Act. The state laws largely follow the model developed by the Council of Australian Governments in 2007. Gans has raised a number of concerns about the Victorian law, 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.
8.154 However, as noted above, state laws are not reviewed in this Report, nor is the general policy of s 68(2) of the Judiciary Act, 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’.
8.155 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 not only be 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’.
8.156 Where fresh and truly compelling evidence of guilt emerges—perhaps, for example, from DNA evidence—a new trial may seem particularly justified, not only to the victims of the particular crime, but also to the broader community.
8.157 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?’
8.158 Limits on the principle appear only to be justified when they are strictly necessary. The Law Commission of England and Wales considered the rule against double jeopardy and prosecution appeals in 2001. Its findings and recommendations have laid the foundation for laws limiting the rule in the UK and in other jurisdictions, including 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’. The scope of the interference must be clear-cut and notorious.
8.159 The Law Commission recommended that additional incursions on the rule against double jeopardy be limited to acquittals for murder or genocide. This built on existing rights of appeal from an acquittal where the accused has interfered with or intimidated a juror or witness.
8.160 Civil Liberties Australia submitted that the right to appeal against conviction was also integral to the right to a fair trial and suggested that existing restrictions on the right of appeal in most Australian jurisdictions are too strict and failed to comply with Australia’s international human rights obligations.
Davern v Messel (1984) 155 CLR 21, 338 (Murphy J).
Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, ‘Issue Estoppel, Double Jeopardy and Prosecution Appeals Against Acquittals, Discussion Paper, Chapter 2’ (2003). Justice Michael Kirby identified ten separate grounds offered by the law for the rule against double jeopardy: (a) controlling state power; (b) upholding accusatorial trial; (c) accused’s right to testify; (d) desirability of finality; (e) confidence in judicial outcomes; (f) substance not technicalities; (g) differential punishment; (h) upholding the privilege against self-incrimination; (i) increasing conviction chances; and (j) denial of basic rights: see Justice Michael Kirby, ‘Carroll, Double Jeopardy and International Human Rights Law’ (2003) 27(5) Criminal Law Journal 231. Justice Black of the US Supreme Court said in Green v United States: ‘the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty … It may be seen as a value which underpins and affects much of the criminal law’: Green v The United States, 355 US 184 (1957), 187–188, quoted in Pearce v The Queen (1998) 194 CLR 610,  (McHugh, Hayne and Callinan JJ).
Davern v Messel (1984) 155 CLR 21, 62 (Murphy J).
Ibid 39–40 (Gibbs CJ); R v Benz (1989) 168 CLR 110, 112 (Mason CJ).
See the judgment of Murphy J, which provides an account of the history of this principle: Davern v Messel (1984) 155 CLR 21, 62–63 (Murphy J).
Martin Friedland, Double Jeopardy (Clarendon Press, 1969) 5–6. At common law, the principle originated in the dispute between King Henry II and Archbishop Thomas Becket over the role of the King’s courts in punishing clerks convicted in the ecclesiastical courts.
William Blackstone, Commentaries on the Laws of England (Clarendon Press reprinted by Legal Classics Library, 1765) vol IV, bk IV, ch 26, 329–30.
The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more generally in Ch 2.
Thompson v Mastertouch Television Service Pty Ltd (No 3) (1978) 38 FLR 397, 408 (Deane J); R v Snow (1915) 20 CLR 315, 322 (Griffith CJ); R v Wilkes (1948) 77 CLR 511, 516–517 (Dixon J); Macleod v Australian Securities and Investments Commission (2002) 211 CLR 287, 289.
Thompson v Mastertouch Television Service Pty Ltd (No 3) (1978) 38 FLR 397, 408 (Deane J).
‘The Judiciary Act is legislation of a quasi constitutional character. Its purpose includes the purpose of ensuring that accused persons in each State are, with defined exceptions, the subject of incidents of a criminal trial which are the same for Commonwealth offences as they are for State offences. This is a purpose of overriding significance and is sufficient to displace the application of principles of statutory interpretation which lead the Court to read down general words to conform with principles which Parliament is presumed to respect’: R v JS (2007) 175 Crim R 108,  (Spigelman CJ).
United States Constitution amend V.
Canadian Charter of Rights and Freedoms s 11(h).
New Zealand Bill of Rights Act 1990 (NZ) s 26(2).
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 26; Human Rights Act 2004 (ACT) s 24.
Deane J discusses the history of the consideration of s 73 of the Constitution, including the decision in Thompson v Mastertouch Television Service Pty Ltd (No 3) (1978) 38 FLR 397, – (Deane J).
Ibid  (Deane J).
R v Wilkes (1948) 77 CLR 511, 516–517 (Dixon CJ). This suggests the High Court is unlikely to interfere with a verdict of not guilty entered by a jury: see Thompson v Mastertouch Television Service Pty Ltd (No 3) (1978) 38 FLR 397, .
Neither was the Law Council. ‘Apart from s 73 of the Constitution, which allows appeals to the High Court, the Law Council is unable to identify any Commonwealth laws which permit an appeal after acquittal’: Law Council of Australia, Submission 75.
See, eg, Crimes (Appeal and Review) Act 2001 (NSW) pt 8; Criminal Procedure Act 2004 (Vic) s 327H; Criminal Code (Qld) ch 68; Criminal Appeals Act 2004 (WA) pt 5A; Criminal Law Consolidation Act 1935 (SA) pt 10; Criminal Code Act 1924 (Tas) ch XLIV.
See R v JS  NSWCCA 272 – (Spigelman CJ).
Gans submitted that Victoria ‘lacks the crucial COAG safeguard that the Court of Appeal rule that a retrial would be “in the interests of justice”’, and instead, the Court ‘need only find that the retrial would be fair, which is a narrow matter’: J Gans, Submission 2.
R v Williams (1934) 50 CLR 551, 560 (Dixon J). Gleeson CJ said in R v Gee that this ‘reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter’: R v Gee (2003) 212 CLR 230,  (Gleeson CJ).
Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, above n 200.
See Kelley Burton, ‘Reform of the Double Jeopardy Rules on the Basis of Fresh and Compelling DNA Evidence in New South Wales and Queensland’ (2004) 101 James Cook University Law Review 84. See also K Burton et al, Submission 123.
J Gans, Submission 2.
The Law Commission, ‘Double Jeopardy and Prosecution Appeals: Report on Two References under Section 3(1)(e) of the Law Commissions Act 1965’ [4.30].
In order for an appeal to lie, it must not be contrary to the interests of justice, and there must be a real possibility that the accused would not have been acquitted absent the interference or intimidation: Criminal Procedure and Investigations Act 1996 (UK) ss 54–57.
Civil Liberties Australia, Submission 94.