If you have been tried and found not guilty for an offence, is there a chance that you can be re-tried if new evidence is found? This is referred to as double jeopardy. Does it apply in Australia, and more importantly, does it apply to your case?
What Does Double Jeopardy Mean?
The term “double jeopardy” only applies in the criminal court in Australia. Section 17 of the Criminal Code Act outlines a defence that an accused person who has already been tried and convicted or acquitted upon indictment for a specific offence cannot be charged with the same offence again.
This law was designed to ensure that persons found not guilty for an offence would not continue to be questioned by police and charged again for the same offence. The person charged should be allowed to assume that their legal matter has been finalised.
Whilst double jeopardy may be applied to most criminal offences in Australia, there were some amendments made to this ruling in 2007 by the Criminal Code (Double Jeopardy) Amendment Act.
Under Section 678B, the Court may order an acquitted person to be retried for the offence of murder if it is satisfied that there is fresh and compelling evidence against the acquitted person in relation to the offence, and in all circumstances, it is in the interest of justice for the order to be made.
Section 678D outlines the meaning of ‘fresh and compelling evidence as:
“Evidence is “fresh” if—
(a) it was not adduced in the proceedings in which the person was acquitted; and
(b) it could not have been adduced in those proceedings with the exercise of reasonable diligence.
Evidence is “compelling” if—
(a) it is reliable; and
(b) it is substantial; and
(c) in the context of the issues in dispute in the proceedings in which the person was acquitted, it is highly probative of the case against the acquitted person.”
Under Section 678C, the Court may order an acquitted person to be retried for a 25 year offence if satisfied that the acquittal is a tainted acquittal, and in all circumstances, it is in the interests of justice for the order to be made.
R v Carroll Case
In 1973, a 17-month-old baby was sexually abused and found dead, dressed in women’s underwear and on the roof of a park toilet. The man charged with this crime was found guilty twice, however, was acquitted after successful appeals based on legal technicalities and the notion of double jeopardy. At the time (in 2002), there was no exception to the double jeopardy rule. However, the 2007 amendments meant that violent crimes, like murder, could undergo a retrial if there is fresh and compelling evidence – in this case, DNA and forensic evidence – that perhaps did not exist at the time of the actual crime.
Does Double Jeopardy Apply to Your Case?
If you are tried and convicted of a crime, or acquitted upon indictment for a specific criminal offence, you may not be charged by that same offence again. However, if this crime is murder, and fresh and compelling evidence can prove that you committed murder, double jeopardy will not apply to your case in Australia.
Seek Legal Help With Your Case
If you are charged by police for committing murder or manslaughter, and then charged again for the same crime, we advise you contact an expert criminal lawyer in Brisbane immediately. Our lawyers at Guest Lawyers are experienced in dealing with all criminal matters and representing those who plead guilty and not guilty, as well as court appeals. Please get in touch to speak to our team.