The great double jeopardy reform con

by on 16 September, 2011

Lillingston New double jeopardy reforms in Victoria must be void of the loopholes seen in other states, writes Philip Lillingston.

Those who live in Victoria may have noticed in the news recently talk about bringing acquitted suspects (such as those accused of the infamous 23 year old Walsh Street police killings) back to face justice, due to upcoming legislative action to reform the law known as double jeopardy.  Victoria is one of the last two Australian states to have not changed the law that grants immunity from further prosecution for those acquitted of any crime, immaterial of any new evidence that comes forward and, incredibly, even of evidence of abuse of process such as bribery, coercion or jury tampering in the original trial. Premier Baillieu and Attorney-General Clark, abiding by an election promise, are claiming credit for this proposed reform to bring better justice for the Victorian community.

There is just one problem.

The model for reform A.G. Robert Clarke has publicly stated on his website he will be using, the Coalition of Attorneys–General (COAG) model, has been conclusively proven not to work. Since first introduced in an Australian state by NSW in 2006, there have been an accumulated fourteen years of the reforms being law in the individual states that have enacted change. Considering most states allow the law to act retrospectively, if you were to add 23 years apiece, it would allow the total  to exceed 70 years. Yet in that time the number of suspected felons who have been returned to court and ultimately convicted is the grand total of zero. In fact there has not even been a single repeat prosecution. The specific reasons are too complex to detail here, (although not on our website) but suffice it to say, the COAG model was drafted with enough loopholes to allow any half intelligent defence lawyer to be able to prevent his accused defendant from having to face a jury again.

So why would model legislation be drafted to not work?

It all starts with a controversial serious of Queensland murder trials and appeals beginning in 1985 and ending in a 2002 HCA appeal where the accused, an R.J. Carroll, was absolved from all crimes due to double jeopardy, despite two juries having found him guilty.  The High Court decision created a lot of comment at the time, not just from crime victim’s advocates but politicians, judges, Premiers, the Prime Minister and even former HCA Chief Justice Sir Anthony Mason!

Legislators in various states were therefore feeling the heat and expected to do something. However at the time all state governments had Labor Party administrations and as might not be that much of a controversial statement, left wing parties tend to drag their feet on law and order issues. ‘Rather than penalise the wrong doer, society is to blame’ is a much more accepted mantra on the left than elsewhere.

So what does the coalition of Attorneys-General do when the voters are forcing you to do something you personally wish not to do? Simple. You refer to that legendary great statesman of administrative realpolitik, Sir Humphrey Appleby.  To paraphrase: the people are anguished by a problem and demanding that something must be done; you do anything as long as it has the appropriate title to it; anything is something; therefore something has been done and the problem is solved. 

All states that enacted change have not followed the COAG model to the letter, but unfortunately enough to keep it ineffective. A.G. Robert Clark has not yet presented the specifics of his proposed legislation.  If he closes all the loopholes he will be branded by the legal fraternity and the ‘quality’  media, the ABC / Fairfax press, as a reactionary who is violating defendants’ ‘human rights’ and  merely pandering to the unthinking hoi polloi. If his changes are only cosmetic, they will easily be enacted, the Liberal Party will have honoured its promise, but it will remain to be seen if those, who we reasonably believe escaped the net the first time, will ever be brought to justice.

[ED NOTE: If anyone would like to write an article defending the double jeopardy principle, please email editor @ menzieshouse.com.au]

Philip Lillingston is policy adviser to the Crime Victims Support Association and maintains their web site on reform, DoubleJeopardyReform.Org 

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