Saturday, 12 November 2011

Legislation Watch: Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011

The Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011 had its second reading last Wednesday. The speech is here. The Bill itself is here and its Explanatory Memorandum is here.

Double jeopardy

The most attention-getting aspect of the Bill is the proposal to reform double jeopardy. That's the kind that arises from being presented for trial on the same charge twice, not the kind where an accused person falls to be sentenced for the same deed several times. The Bill specifically removes the principle in R v Carroll [2002] HCA 55 that an accused in a murder trial cannot be tried for perjury if doing so revists the correctness of the acquittal.

The Attorney-General said in the Second Reading,

The bill reforms the common law so that a new trial can be allowed in three situations.

The first situation is where there is 'fresh and compelling' evidence against the person (for example, where new DNA evidence links a person to a murder or a person confesses to having committed a murder). The second situation is where the original acquittal was 'tainted' (for example, by the commission by the accused person or another person of an 'administration-of-justice offence' such as bribery of a witness or perjury). The acquittal will be tainted if it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been convicted in the original trial. The third situation is where there is fresh evidence that the accused person has committed an administration-of-justice offence in respect of an acquittal and the prosecution seeks to bring charges for that offence notwithstanding the acquittal.

The procedures are complex, selective and require the approval of the Court of Appeal. Though there are similar provisions in other jurisdictions and they do occasionally get used, I'm doubtful there will be a secure conviction resulting from a second trial in Victoria in my lifetime.

Some would probably have thought that s 26 of the Charter of Human Rights prevented this kind of thing. That reads,

26. Right not to be tried or punished more than once

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 law.

That might sound like a definite prohibition. Unlike most Charter rights it doesn't have the wiggle-room of a except on grounds, and in accordance with procedures, established by law or except where reasonably necessary clause. But like all Charter rights the right is subject to the reasonable limitation test under s 7. The various checks-and-balances written into the legislation may make this exception a reasonable limitation.

The Attorney-General wrote in the Statement of Compatibility (at 95),

The primary right engaged by the proposed double jeopardy reforms is the right not to be tried or punished more than once in section 26 of the Charter Act. The proposed exceptions to the double jeopardy rule impose a limitation on the right in section 26 of the charter act but in my view they do so in a way that can be demonstrably justified under section 7(2).

Infringement notices as prior convictions

Clauses 3 and 7 through 12 clarify that an infringement penalty is a prior conviction for the purposes of a sentencing hearing.

Provision of the police brief

Clause 6 inserts new section 53A in the Criminal Procedure Act 2009. This section will set out the documents to be provided by the police informant to the accused or the accused's legal practitioner at the first mention hearing of a matter.

While this might appear to move the court process along more efficiently, the detail of what must actually be provided suggests that the police won't be under much pressure to produce more information than they do already.

Clause 53A(2) reads,

6 Mention hearing

After section 53 of the Criminal Procedure Act 2009 insert—

"53A Documents to be provided by police at first mention hearing

(1) This section applies if the informant is a member of the police force.

(2) At the first mention hearing, the informant must have the following documents available for provision to the accused or the legal 10 practitioner representing the accused—

(a) a copy of the preliminary brief (if prepared);

(b) a copy of the full brief (if prepared);

(c) if neither a preliminary brief nor a full brief has been prepared—

(i) a copy of the charge - sheet in respect of the alleged offence; and

(ii) a statement of the alleged facts on which the charge is based; and

(iii) either—

(A) a copy of the criminal record of the accused that is available at the time of the first mention hearing; or

(B) a statement that the accused has no previous convictions or infringement convictions known at that time.

The accused was already entitled to a copy of the charge sheets under s 27. This new provision is so riddled with exceptions it doesn't go much further than that. If not prepared the document doesn't have to be provided.

Further, and despite the use of the word must, no consequences are provided for a failure to comply. A dismissal of the charge(s) seems unlikely, and costs have always been at the discretion of the court.

The Bill has a forced commencement date of 1 July 2012.

1 comment:

Anonymous said...

Please excuse my limited understanding of such matters, but wouldn't this proposed law be deemed unconstitutional at the Commonwealth level?

In light of R v Carroll and in combination with the HCA in Lange v Australian Broadcasting Commission where it states:

" With the establishment of the Commonwealth of Australia, as with that of the United States of America, it became necessary to accommodate basic common law concepts and techniques to a federal system of government embodied in a written and rigid constitution. The outcome in Australia differs from that in the United States. There is but one common law in Australia which is declared by this Court as the final court of appeal. In contrast to the position in the United States, the common law as it exists throughout the Australian States and Territories is not fragmented into different systems of jurisprudence, possessing different content and subject to different authoritative interpretations...."

Furthermore, Article 14 (7) of the ICCPR 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."