Double Jeopardy
Syllabus links: Section A: The Legal System — How does the organisation of the legal system meet society’s
requirements?
Textbook links: Legal Studies in Action 1, Second Edition, How Parliament decides what the law should be,
pp. 52–55.
Introduction
Double jeopardy has been in existence for 800 years. The principle states that a person who has been acquitted (found
not guilty) of a criminal offence cannot be retried for that same offence, even if new evidence is found later that proves the
person’s guilt. It also states that a person cannot be tried for an offence of which they could have been convicted in the
first trial. So, for example, if a person is charged with murder the first time, that person could be found guilty of murder, or
the lesser crime of manslaughter (for example, if the jury believes the killing was unintentional). As a result, if the person
is found not guilty of murder in the first trial, they could not be charged in a second trial with the offence of EITHER
murder or manslaughter.
The reason for the existence of double jeopardy is to prevent the Crown from retrying a person found not guilty in the
hope of finding a jury that will convict the person in another trial. It protects a citizen’s human rights, by preventing their
being constantly charged with the same offence. Say for example that the police are convinced you committed a crime.
You did not, but the person who did it looks very much like you. If the police were convinced you were the culprit, and
could keep re-charging you until they got a conviction against you, this would be unfair.
There is heated debate today over whether this ancient protection offered defendants should be removed. With more
sophisticated DNA testing, some argue that the time has come to allow retrials, even many years after a person has been
acquitted of very serious offences. Is it more important that the police get the right offender, even if it means infringing on
human rights? Does the end justify the means? Or is it important that our legal system protect an individual’s human
rights, including the right not to be continually charged by police for the same incident?
Double Jeopardy in Australia
State Governments have proposed changes to the existing situation. The Queensland Government suggests changing
the law to allow a person found not guilty of an offence to later be charged with perjury, if there is evidence that they may
be guilty. The suggestion is that this would not infringe human rights significantly. As you may know, perjury is a charge
that a person lied in court. The argument might be that when the person in the first trial claimed they had not committed
the offence, they lied. As a result, they have committed perjury, and should be charged with that offence. This is what the
police tried to do in the Deidre Kennedy trial (see below), but this was found to be contrary to the double jeopardy rules.
The court found in that case that in order to establish the perjury charge, in effect the court would be going over the same
territory as in the original trial i.e. did the person commit the original offence. As a result, Queensland law would need to
change for a later perjury trial not to be seen as infringing double jeopardy rules. New South Wales has proposed a
similar change. The Victorian Government is against any change.
Prime Minister Howard and Federal Justice Minister, Mr Chris Ellison, want to see a national approach to reform of
double jeopardy laws. Their concerns lie in the fact that we should not have a situation where the rights of an acquitted
person vary depending on the state of Australia in which he/she had been originally tried.
In September 2003, NSW Premier Bob Carr released a Consultation Draft Bill entitled the Criminal Appeal Amendment
(Double Jeopardy) Bill 2003 (NSW). The main reforms suggested in the Bill closely follow the proposed changes to the
law in the UK.
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The suggested reforms essentially mean that the Crown may pursue further action where there has been an acquittal
for murder, manslaughter or offences attracting life imprisonment where:
• ‘fresh and compelling’ evidence is now available (for example, this may relate to expert DNA analysis)
• there was a ‘tainted’ acquittal (this would involve situations where a key witness committed perjury in the trial; where
people were forced under duress to give false evidence or where a juror had been bribed)
• the judge has directed a jury to acquit the defendant and the jury has agreed. In these situations, the judge must have
made an error in interpreting and applying the law relevant to the case.
Case study
Deidre Kennedy was aged 17 months when murdered in April 1973. Her body was found on the roof of a toilet block in
Limestone Park, Ipswich, Queensland. Police found bite marks on the child’s leg that later proved vital in efforts to identify
her killer. In March 1985, Raymond John Carroll was found guilty by a Supreme Court jury of the murder of Deidre
Kennedy. At the time of the murder, Carroll was aged 17. He was sentenced to life imprisonment. Experts had testified
that Carroll’s dental imprints matched those found on the little girl.
Carroll’s lawyers lodged an appeal, claiming that there were inconsistencies in the expert evidence given at the trial.
They also claimed that the judge had made an error in allowing Carroll’s former wife to testify. She had claimed that while
they were married, Carroll had also bitten their child’s leg. In November 1985, the Queensland Court of Appeal upheld
Carroll’s appeal and he was acquitted of the murder.
The case was reopened ten years later, when police tested forensic samples from the original crime scene. Forensic
odontologist, Dr Alex Forrest, used barcode scanning techniques that, the Crown argued, conclusively linked Carroll to
the death of Deidre Kennedy. There was evidence that Carroll had also bitten the thighs of children living on a RAAF
base in the Northern Territory where he had lived. The problem for the Crown was that the Queensland Court of Appeal
had acquitted Carroll of the murder in 1985, and double jeopardy made a retrial on the murder charges impossible.
Instead, the Crown laid perjury charges against Carroll on the basis that his original plea of not guilty and evidence given
on oath were untrue. The Crown believed that if it could be proven that Carroll had killed the girl, the perjury charge
should be proven.
In October 2000, a Supreme Court jury found Carroll guilty of perjury, and he was sentenced to 10 years’
imprisonment. The Crown had convinced the jury that when Carroll had originally pleaded not guilty to the charge of
murder, he had consciously lied. Carroll’s lawyers appealed against the ruling to the Court of Appeal. In September 2001,
the Court of Appeal upheld the appeal and acquitted Carroll on the perjury conviction. He was released immediately. An
appeal by the Crown to the High Court failed.
The appeal court judges said that the second trial (on the basis of perjury) was, in reality, a retrial of the murder charge.
In order to prove perjury, the jury in Carroll’s second trial would have had to believe that he was guilty of murder; a charge
on which he had already been acquitted. Therefore, according to the principle of double jeopardy, the second trial was
wrong under the law and the outcome could not stand.
With the assistance of The Australian newspaper, Deidre Kennedy’s mother, Faye, has pursued a civil law action
against Raymond Carroll. She has received legal advice that her chances of success in this action are good.
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