The " Double Jeopardy " Law !

What are known as the "Bowraville Murders " have been a nagging concern to the Indigenous community for decades.  The person many are convinced was the murderer of three young people faced trial and the jury reached a "not guilty "verdict.    Under the "Double Jeopardy "law of that time he was immune from further prosecution.

The amazing progress with DNA and science generally has resulted in a law change that has not yet been tested in court.   Where "clear and compelling fresh evidence " becomes available the double jeopardy law may be set aside and a new trial ordered, but it is quite clear that only this single "last shot " at a conviction will be permitted.

Now the New South Wales parliament is being urged to have another look at this double jeopardy law.  There is conjecture that the "clear and compelling fresh evidence " content does not apply to the brief being prepared for this retrial.  Some who practice law have mixed feelings about whether double jeopardy really deserves to continue to be enshrined as a legal defence.

When the first fleet dropped anchor in 1788 it brought with it the law of England.  That is the basic law that still applies today and as the colony developed the Governor added specific new laws that applied to the circumstances that developed in this new country.  After Federation, the final law arbitrator became the High Court of Australia.

Double jeopardy became a canon of English law somewhere back in the days of civil war to decide who wears the crown and holds the title of "King ".   They were turbulent times when many hereditary titles were won by those picking the winning side.  The losers could be hauled before a court and harassed by numerous charges and double jeopardy became a safety measure to protect multiple charges of a crime that carried the death penalty being used to eliminate those who had chosen unwisely.   Without it, the law could be used as a weapon of political vengeance.

Unfortunately it can equally pervert the course of justice.   Once an accused gains that "not guilty "verdict they can openly admit their guilt and nothing can be done to inflict further punishment.  We are constantly seeing the progress of science looking back at the evidence of older cases and producing compelling revelations that were not possible when that evidence was first collected.  The use of forensic DNA has cracked many old unsolved murders where "cold case " revision of stored evidence has revealed the killer.    That is fine if the offender has never faced court, but if the charge of murder was dismissed on a technicality, the murderer is now home free - protected from further prosecution.

The purpose of the law is supposed to be the delivery of justice.   Perhaps double jeopardy has outlived the reason it was first placed on the statute books.  We no longer apply the death penalty in this country and even murder now usually results in a fixed term before parole.   The argument that double jeopardy prevents the execution of the innocent is no longer applicable.  This march of science and new discoveries is also freeing those who were innocent but unjustly convicted of crimes and spent time in prison.  All who face court await their fate from the decision the scales of justice will see fit to pronounce.

If double jeopardy is to be removed from the law it will enable future evidence revelations from scientific discoveries to make the guilty pay for their crimes - and free those unjustly convicted.
It is hard to see where the prosecution has but a single shot at the crime of murder, given that both the prosecution and defence have unlimited access to the courts of appeal to undo whatever sentence has been imposed.