Beating the Rap !

The law in most English speaking countries is derived from the legal system that evolved in England during that country's journey from the days of occupation by Roman Legions.  It encompasses basics such as "Magna Carta "and it can be tweaked by the highest judicial bodies of Australia, America, New Zealand and other lands which are governed by the rule of law.

The law contains many safeguards and broadly accepts the notion that " It is better that a hundred guilty men go free than even one innocent man is convicted for a crime he did not commit "!  To this end, an accused is put before a judge and a jury of twelve of the accused peers are empanelled to consider the evidence and decide on his guilt or innocence.   For centuries, this required a unanamous decision by that jury - and at that time the punishment for murder was usually a death sentence.  In recent times, a majority verdict has been accepted in some cases.

One of the tenets of this law was that the hazard of "double jeopardy "should not apply.  An accused could only be tried for the crime of murder once, and should the jury deliver an acquittal, that person could not again face a retrial for that same crime.    Even if the trial decision was based on a technicality - the accused was home free and had successfully "Beaten the Rap " !

The death penalty is no longer on the books in Australia and in most murder convictions the term of imprisonment is usually twenty years and often a lesser term is actually served before parole considerations come into play.   The fact that those accused of murder no longer face the death penalty has caused fresh thinking to apply now that scientific advances are enabling compelling new evidence to become available long after trials are concluded.   In particular, the presence of DNA collected at a past murder scene may now be positively connected to the accused and prove guilt and that connection may not have been possible when that trial was conducted.   Pressure has been building to dispense with double jeopardy in exceptional cases.

This is a conundrum that splits the legal fraternity.   It is galling to think that a murderer is walking free in the community now that evidence is available that clearly proves that he or she committed that crime, but at the same time we are seeing convicted felons released from prison and compensated from the public purse where this same compelling evidence has proved their innocence.  The courts do get cases wrong - and perhaps double jeopardy has outlived it's mandate in this increasingly technical age.

Double Jeopardy laws are still in place in New South Wales and new evidence has emerged which could be applied to three murders that saw an accused walk free some years ago.   Just days before Christmas, this state's Attorney General has decided that there will be no change and this form of protection will prevail and prevent any retrial.

A lot of people will be greatly relieved.  Justice does come at a cost.  We presently have an accused waiting for his fourth trial scheduled to begin early next year and it seems  likely that lack of money will prevent him having the legal representation engaged for the first three trials, all of which were abandoned because of technicalities or the failure of the jury to deliver a verdict.   It seems that while double jeopardy will apply once a trial reaches a verdict, the accused may face an unrelenting succession of trials - indefinitely -  until that happens.    So far, as an unconvicted person - this man has spent four years locked in a prison cell.

The creaky wheels of justice turn slowly.  It seems that we tamper with them at our peril  !