OJ Simpson, the living argument against the double jeopardy rule, is about to publish a book which is apparently a confession of the double murder that he was acquitted of. Entitled If I Did It, it seems to set out how he actually did do it. Simpson has been paid an advance of millions of dollars, of course.

In Australia, double jeopardy is a troubling and divisive issue.

The NSW Parliament has passed the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 under which a person acquitted of a serious criminal offence can be retried. The Act is complex, but in general terms it permits the DPP to apply to the Court of Appeal which has the power to quash the acquittal. Grounds include fresh and compelling evidence and tainted acquittals. Also any acquittal directed by the trial judge may be appealed if it involves a question of law.

In Queensland, the Criminal Code (Double Jeopardy) Amendment Bill 2006 was introduced into Parliament on 2 November 2006 as private member’s bill.

Queensland, of course, was the source of the prosecution of Raymond John Carroll. Carroll was charged in 1983 with the murder of baby Deidre Kennedy. Evidence linked him to bite marks on the body. Carroll gave evidence on oath at the trial, alleging alibi. The jury convicted him but the Court of Appeal overturned the conviction and acquitted him.

Some years later the police obtained credible evidence that Carroll had lied on oath at the trial and he was charged with perjury. In 2000 another jury convicted him. Again the Queensland Court of Appeal upheld the appeal and acquitted him. The State appealed to the High Court which upheld the acquittal.

After being convicted by two juries, Carroll remains free.

In Victoria, the Government has gone in the opposite direction. Section 26 of the Charter of Human Rights 2006 (in force 1 January 2007) gives the (Common Law) rule against double jeopardy statutory force for the first time. It provides “A person must not be tried … more than once for an offence in respect of which he or she has already been finally … acquitted in accordance with law.”

It seems inevitable now that NSW will have one law and Victoria another. If you kill someone, it is plainly better to be tried and acquitted in Victoria.

I have no doubt that the rule against double jeopardy should be abolished. The main problem is that the human rights movement has the opposite view – and that view has been legislated in Victoria despite the opposite trend in the rest of Australia.

Peter Fray

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