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Coalition Government to introduce double jeopardy reforms

Tuesday, 08 November 2011

The Victorian Coalition Government will today introduce legislation into the Victorian Parliament to reform the law of double jeopardy.

The reforms will mean that a new trial can be ordered where there is compelling new evidence that a person previously acquitted of a serious crime was in fact guilty.

The new law will apply in cases such as where there is fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given false evidence.

The law will be based on model legislation approved by the Council of Australian Government (COAG) in 2007, which the former Labor Government refused to adopt. The reforms will apply to past acquittals as well as future acquittals.

New South Wales, Queensland, Tasmania and South Australia have already legislated to modify double jeopardy law to allow retrials in such cases, as have England and New Zealand.

"Double jeopardy laws prevent a person from being tried more than once for the same alleged offence. In most cases these laws perform a valuable role in protecting an innocent citizen against being the subject of multiple prosecutions, and they provide certainty and finality in the courts," Attorney-General Robert Clark said.

"However there are occasions where a retrial ought to be allowed, if it becomes clear through compelling evidence not available at the time of trial that a person acquitted of a serious crime is highly likely to be guilty."

Mr Clark said the reforms will allow the Director of Public Prosecutions (DPP) to apply to the Court of Appeal for a new trial in three carefully defined situations.

"The first situation is where there is fresh and compelling evidence, such as new DNA evidence or a subsequent confession, to show that the accused was guilty of a crime such as murder, manslaughter, commercial drug trafficking or cultivation, aggravated rape or aggravated armed robbery," Mr Clark said.

"The second situation is where an original acquittal for a serious crime was tainted, such as where jurors were intimidated or bribed, or where the accused or another key witness committed perjury, and it is more likely than not that the accused would otherwise have been convicted.

"The third situation is where there is fresh evidence the accused person committed perjury or another administration of justice offence at a trial where they were acquitted of an indictable offence, and the prosecution wants to bring charges for that administration of justice offence.

"In each of these cases the Court of Appeal will be able to order a new trial it if is satisfied that a new trial is likely to be fair. In making that decision, the court will be required to have regard to the length of time since the offence allegedly occurred, whether the police or prosecution had failed to act with reasonable diligence and any other matter the court considers relevant."

Mr Clark said the legislation will also contain a number of procedural safeguards to protect against any possibility of misuse.

The DPP will only be able to make one application for a retrial in relation to any particular acquittal.

In addition, police will need to obtain written authorisation from the DPP before they can question, search or carry out surveillance on a person for an offence of which the person has previously been acquitted, save in cases of urgent need to preserve evidence.

"The community are entitled to be angry if someone is acquitted

of a very serious crime and then new evidence such as a confession points strongly to their guilt, but nothing can be done about it," Mr Clark said.

"For too long, the law of double jeopardy has meant that some offenders have literally been able to get away with murder because of missing or perjured evidence.

"This reform will bring those days to an end and allow justice to be upheld," Mr Clark said.

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