13.20 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.
13.21 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’. The scope of the interference must be clear-cut and notorious.
13.22 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.
13.23 Bills of rights allow for limits on most rights, but the limits must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.
13.24 Some Australian laws that permit an appeal from an acquittal may be justified. The ALRC invites submissions identifying those Commonwealth laws that are not justified, and explaining why these laws are not justified.
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].
Ibid [4.30] – [4.36].
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.
Canada Act 1982 c 11, Sch B Pt 1 (‘Canadian Charter of Rights and Freedoms’) s 1. See also, Charter of Human Rights and Responsibilities 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28; Bill of Rights Act 1990 (NZ) s 5.