13.1 ‘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.’ It is said that to try a person twice is to place them in danger of conviction twice—to ‘double their jeopardy’. However, critics of the principle argue that justice is not served when a guilty person is wrongly acquitted.
13.2 This chapter discusses the source and rationale of the rule against double jeopardy; how the rule is protected from statutory encroachment; and when laws that encroach on the rule may be justified. The ALRC calls for submissions on two questions.
Question 13–1 What general principles or criteria should be applied to help determine whether a law that allows an appeal from an acquittal is justified?
Question 13–2 Which Commonwealth laws unjustifiably allow an appeal from an acquittal, and why are these laws unjustified?
13.3 It said to be ‘an elementary principle’ that ‘an acquittal made by a court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other Court’.
13.4 Usually the rule against double jeopardy is discussed in the context of whether a person can be re-tried in fresh proceedings for the same offence after an acquittal. However, the rule also underpins a long-established aversion to allowing appeals from an acquittal, that is, in the same proceedings. In Davern v Messel (1984), Gibbs CJ explained the purpose of the rule of double jeopardy in both contexts:
The purpose of the rule is of course to ensure fairness to the accused. It would obviously be oppressive and unfair if a prosecutor, disappointed with an acquittal, could secure a retrial of the accused person on the same evidence, perhaps before what the prosecutor ‘considered to be a more perspicacious jury or tougher judge’. It might not be quite so obvious that it would be unfair to put an accused upon his trial again if fresh evidence, cogent and conclusive of his guilt, came to light after his earlier acquittal, but in such a case the fact that an unscrupulous prosecutor might manufacture evidence to fill the gaps disclosed at the first trial, and the burden that would in any case be placed on an accused who was called upon repeatedly to defend himself, provide good reasons for what is undoubtedly the law, that in such a case also the acquittal is final.
When the prosecution seeks to appeal from an acquittal, the rule against double jeopardy has an indirect application… The view has been taken that the common law rule against double jeopardy would be infringed by allowing an appeal from an acquittal, since the rule requires than an acquittal be treated as final.
13.5 The Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General said in a 2003 discussion paper that 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.
13.6 The Committee spoke of the desirability of achieving ‘a balance 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’.
13.7 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.
13.8 The rule against double jeopardy can be traced to Greek, Roman and Canon law, and is considered a cardinal principle of English law. 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. By the 1660s it was considered a basic tenet of the common law. For instance, 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’.
13.9 The principle is also enshrined in the Fifth Amendment of the United States Constitution (1791).
Davern v Messel (1984) 155 CLR 21, 338 (Murphy J).
Ibid 31 (Gibbs CJ) and 62 (Murphy J) citing Benson v Northern Ireland Road Transport Board  AC 520, 526 (HL) quoting in turn R v Tyrone County Justices (1906) 40 Ir LT 181, 182.
Ibid 30–31. Justice Black of the US Supreme Court provided a similar rationale for the rule against double jeopardy in Green v United States (1957): ‘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, 614  (McHugh, Hayne and Callinan JJ).
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).
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.
William Blackstone, Commentaries on the Laws of England (15th ed, 1809) vol 1, ch XXVI.
Davern v Messel (1984) 155 CLR 21, 40: Gibbs CJ notes that the US constitutional protection does not have as wide an operation as some would argue.