Double Jeopardy (Qld)

There is a common-law maxim that no man is to be brought into jeopardy for the same offence more than once. This maxim is captured by Section 17 of the Queensland Criminal Code 1899, which creates the defence of double jeopardy. That section reads:

“It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged.”

The legal doctrine of double jeopardy can be broken down into two concepts: Autrefois Acquit and Autrefois Convict. These concepts have different bases but are usually discussed in tandem.

Autrefois acquit

Roughly translated as “formerly acquitted”, the principle of autrefois acquit precludes a prosecuting authority from bringing a charge relating to an alleged offence that a person has already been acquitted on.

In Davern v Messel (1984), Gibbs CJ outlines the rationale behind the principle of autrefois acquit as follows:

“The purpose of the rule is of course to ensure fairness to the accused. It would obviously be oppressive and unfair if a prosecutor, disappointed with an acquittal, could secure a retrial of the accused person on the same evidence, perhaps before what the prosecutor ‘considered to be a more perspicacious jury or tougher judge’. It might not be quite so obvious that it would be unfair to put an accused upon his trial again if fresh evidence, cogent and conclusive of his guilt, came to light after his earlier acquittal, but in such a case the fact that an unscrupulous prosecutor might manufacture evidence to fill the gaps disclosed at the first trial, and the burden that would in any case be placed on an accused who was called upon repeatedly to defend himself, provide good reasons for what is undoubtedly the law, that in such a case also the acquittal is final.

When the prosecution seeks to appeal from an acquittal, the rule against double jeopardy has an indirect application… The view has been taken that the common law rule against double jeopardy would be infringed by allowing an appeal from an acquittal, since the rule requires than an acquittal be treated as final.”

Autrefois convict

The principle of autrefois convict (formerly convicted) precludes the Crown from re-asserting an allegation on which an accused has already been convicted, and a court has passed sentence.

Exceptions to double jeopardy

The Criminal Code (Double Jeopardy) Amendment Act, which was introduced in 2007, created two exceptions to the double jeopardy rule.

The first exception allows the court to make an order that a person acquitted of murder be retried for the offence if fresh and compelling evidence is brought forth after the acquittal and it is in the interests of justice for the order to be made. This provision also allows for a person to be tried for murder if they were previously charged and acquitted of a lesser offence.

The second exception allows for a person to be retried if their acquittal is tainted by the commission of an administration of justice offence, such as perjury or witness tampering. This exception only applies where a person has been charged with offences carrying a maximum penalty of 25 years imprisonment or more and where the person likely would have been convicted but for the administration of justice offence.

These exceptions were introduced based on the principles that a criminal justice system ought to correct errors, and that an offender should not evade punishment for serious crimes.

DPP v TAL

In 2018, an application was brought by the Crown to retry a man who had been acquitted of murder in 1988 on the basis that sophisticated DNA testing became available only after his acquittal. DNA found on the deceased’s pillow had been found to match the profile of the accused after his acquittal.

The court refused the application, stating that the scientists who gave evidence in the 1988 trial were not available to testify. It stated,  “DNA matching is powerful evidence because, if there has been scientific integrity in the process that leads to obtaining a profile, it is almost incontrovertible… The inability of a defendant to test that integrity means that there cannot be a fair trial.” (DPP v TAL, [2019] QCA 279) The retrial of the accused was therefore not in the interests of justice.

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