Protections from statutory encroachments

Australian Constitution

13.10   There is no express prohibition on appeals from acquittals in the Australian Constitution.

13.11   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.^[12] While it is within the High Court’s power to hear an appeal from an acquittal, it will generally not grant special leave, unless issues of general importance arise.^[13] In The King v Wilkes (1948), Dixon CJ said the High 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.^[14]

13.12   In Thompson v Mastertouch TV Service Pty Ltd (1978), Deane J said that to ‘recognize how drastic such a departure from a time-honoured principle of the common law would be is not to question the legislative competence of the Australian Parliament to enact provisions’ having the effect of allowing an appeal against an acquittal.^[15]

Principle of legality

13.13   The principle of legality provides some protection to this principle.^[16] 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.^[17]

13.14   For example, in Thompson v Mastertouch TV Service Pty Ltd (1978), 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. ^[18]In that case, Deane J said:

the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction, is not, upon proper principles of statutory interpretation, to be swept aside by the general terms of a statute which has no underlying policy requiring that such terms be given such an effect and which contains nothing that points clearly or unmistakably or, indeed, at all, to that effect as having been either contemplated or intended.^[19]

13.15   In Davern v Messel (1984),the decision in Thompson was approved, with Gibbs noting:

An appeal is a remedy given by statute; the scope of the appeal must be governed by the terms of the enactment creating it. The question whether an appeal lies from an acquittal therefore must be decided as a matter of statutory interpretation.^[20]

International law

13.16   Article 14 (7) of the International Covenant on Civil and Political Rights states:

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.

13.17   International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.^[21] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.^[22]

Bills of rights

13.18   In other countries, bills of rights or human rights statutes provide some protection from statutory encroachment. Bills of rights and human rights statutes prohibit laws that permit an appeal from an acquittal in the United States,^[23] Canada^[24] and New Zealand.^[25] For example, section 26(2) of the Bill of Rights Act 1990 (NZ) provides:

No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.^[26]

13.19   The prohibition is also recognised in the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT).^[27] For example, the Victorian Act provides:

A person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with the law.