What is Double Jeopardy?

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Double jeopardy has been an integral part of our criminal law system – it is essentially the idea that a person cannot be put on trial twice for the same offence.

It has been a part of the common law for 800 years and the principle has a counterpart in other legal systems, too.

There are good reasons for this: a person should not be put through the ordeal and expense time and time again after being tried by the courts and subjected to the legal justice system.

Double jeopardy is one of many principles in place to limit the power of the State, which is undoubtedly more well-resourced than the average defendant.

It was once a golden rule, untouchable, and an important safeguard for those accused and then acquitted by our criminal justice system.

But what happens if new and compelling evidence comes to light that was not around at the time of the crime, such DNA or other forensic evidence?

Queensland lawmakers have been eroding double jeopardy laws for some time.

New laws that have been proposed by the Queensland Attorney-General would be retroactive, allowing for the re-prosecution of cases that occurred before the introduction of the new legislation.

Last month, the Attorney-General expressed the view that double jeopardy has acted as a “roadblock to justice” in the case of one particular landmark case, a 41-year-old crime that has sparked public outrage and a desire for change.

The case was R v Carroll.

Back in 1973, the body of a 17-month-old baby was found sexually abused, dressed in women’s underwear and tossed on the roof of a park toilet block just 500 metres from the family home.

The man charged with the crime was found guilty twice, but was acquitted on appeal due to technicalities and the principle of double jeopardy.

The victim’s family had no closure for years. Nobody had a clue who did it, until the commission of a crime in 1982 which contained striking similarities, although no murder.

Raymond Carroll’s car was seen outside the second crime scene and his fingerprints were found on photographs stolen from area.

A police officer later connected both incidents.

Carroll was charged with infant’s murder and it came to light that bite marks on the child’s body revealed the perpetrator had an unusual set of teeth.

Carroll’s teeth matched those found on the body and he was found guilty. But on appeal, the dental evidence was found to be unsafe and he was acquitted.

He claimed to have been interstate when the crime occurred, although several witnesses testified otherwise.

Prosecutors attempted to put him on trial again when new evidence was found, but Carroll couldn’t be retried due to the principle of double jeopardy.

Police tried to get around this by charging Carroll with perjury, claiming he had lied in the first trial when he said he didn’t commit the murder.

Again the jury found him guilty and again he won on an appeal, as the police’s abuse of process breached the principle of double jeopardy.

Carroll remains free and immune to further prosecution because of the double jeopardy rule.

He maintained his innocence during an interview decades after the crime and trial.

The 2006, Queensland reforms significantly undermined the principle of double jeopardy, and violent crimes like murder can be retried if there is fresh and compelling evidence.

But Raymond Carroll still fits under one of the various exceptions to this legislation, meaning he still cannot be re-prosecuted.

In its contextual framework, double jeopardy fits in within what’s known as ‘Blackstone’s ratio’, which is often invoked to protect accused people, erring on the side of innocence rather than guilt.

The formulation states that it would be better if ten guilty escaped conviction than one innocent person condemned.

But such an argument leaves little room for victims; rights, which some argue ought to take precedence.

What do you think about double jeopardy: a fundamental safeguard or roadblock to justice?

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.