Case notes
R v CARROLL: DOUBLE JEOPARADY UNDER FIRE
The longstanding principle of double jeopardy is under siege. The United Kingdom is at the forefront of introducing changes to the principle of double jeopardy. Part 10 of the Criminal Justice Bill 2002' seeks to reform the law relating to double jeopardy, by per- mitting retrials for a number of serious offences, where new and persuasive evidence2 becomes available. The prosecuting authorities3will have the power to apply to the Court of Appeal for an acquittal to be quashed, and for a retrial to take place. The Court of Appeal must be satis- fied that the new evidence is a compelling indication of the acquitted person's guilt. The new law will only apply to offences which carry a maximum sentence of life imprisonment, and for which the consequences for victims and society as a whole are serious. Such offences include murder, manslaughter, and rape.4 Where the Court of Appeal quashes an acquittal, the prosecuting authorities may then indict the respective individual for the same offence, and a retrial will follow. The Court of Appeal may refuse to quash an acquittal in cases where the evidence is not new and compelling, or where it is not considered in the interests of justice to proceed with a retrial. Notwithstanding fundamental challenges to the doctrine being considered by the British ~arliament,~in R v C~rroll,~the High Court of Australia has emphatically reaf- firmed its support of the double jeopardy principle. The rule against double jeopardy means that a person cannot be tried for an offence if he or she has already been acquitted or convicted of the same offence at a previous trial. The rule is an important one because without it, the power to prosecute could readily be used by the Executive as an instrument of oppression. The decision in R v Carroll7 however, sparked a series of debates on whether this principle should be amended to allow greater freedom for a retrial in cases where new evidence has come to light. The issue then, is one of striking an appropriate balance between the efficient admin- istration of criminal justice and the rights of the accused. The issue is now being consid- ered by the Model Criminal Code Officers Committee, established by the Attorney Generals department of Au~tralia.~The current proposal to review the rule against double jeopardy focuses on the fact that after an acquittal, fresh evidence might come to light that could have led to a conviction if it had been available at the trial. Concerns about this pos- sibility seem to have been highlighted by the availability at present, of DNA evidence.
* BA LLB (Hons). ' The discussion on this Bill and its application have been drawn from The United Kingdom Parliament (House of Commons), Criminal Justice Bill-Explanatory Notes, Session 2002-03,
In 1985, Raymond John Carroll ('Carroll') was tried for the murder of Deidre Maree Kennedy ('Deidre'). On oath, he gave evidence that he did not kill her. Despite this, the jury returned a verdict of guilty. On appeal, the Court of Criminal Appeal9 concluded that, on the evidence, it was not open to a properly instructed jury to conclude beyond reason- able doubt that the respondent was guilty.1° The conviction was set aside and a verdict of acquittal entered. Fourteen years later, the Crown challenged Carol's protestation of innocence by indict- ing him for perjury" on the grounds that he knowingly gave false testimony to the effect that he did not kill Deidre. Subsequent to this indictment, but before Carroll was arraigned, he made an application under Section 592A of the Criminal Code (Qld)12 seeking a direc- tion or ruling to the quashing or staying of the indictment. It was alleged that '[tlhe pros- ecution [was] ill founded as it contravene[d] the doctrines of res judicata or autrefois acquit.13 This was dismissed by Muir J who concluded14that the doctrines did not prevent the bringing of the perjury charge laid against the respondent, and thus the trial was not stayed.15 At the trial, the jury returned a verdict of guilty. On appeal, the Court of Appeal,16 concluded that the trial should have been stayed as an abuse of process and that, in any event, the verdict of the jury was unsafe and unsatis- factory. l7
On appeal to the High Court, the issue was whether there were grounds for the exercise of discretion to stay Carroll's trial on the charge of perjury, as an abuse of process. The respondent argued that the effect of trying him for the alleged perjury, was to try the issue that was central to his trial for murder again.18 This would thus infringe the double jeopardy principle. IV. THEDECISION The plea of autrefois acquit or double jeopardy is a defence to a charge both at common law and statute. It is based on the argument that the accused has previously been acquit- ted of the same charge on the same facts.
A. Double Jeopardy under the Criminal Code The two statutory provisions relevant in this case were Sections 16 and 17 of the Criminal Code (Qld).In effect section 16 provides that a person cannot be twice punished for the
Comprising Campbell CJ, Kneipp and Shepherdson JJ. lo Carroll v R (1985) 19 A Crim R 410,410,417,435. l1 Criminal Code (Qld) s 123(1): 'Any person who in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of a crime, which is called "perjury"'. l2 If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling, or a judge of the court may on his or her initiative direct the parties to attend before the court for direc- tions or rulings, as to the conduct of the trial. l3 Carroll (2000) 115 A Crim R 164, 165. Criminal Code (Qld) s 17 deals with autrefois acquit: 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. l4 Ibid 169-170. l5 Ibid 170. l6 Comprising McMurdo P, Williams JA and Holmes J l7 R v Carroll [2001] QCA 394, [I], [72], [75] l8 R v Carroll [2002] HCA 55, [20] (Gleeson CJ and Hayne J quoting the respondent's argument). Case notes 269
same act or omission, unless an exception applies. Section 17 effectively provides that it is a defence to a charge of any offence to show that the accused has already been tried and either convicted or acquitted of the same offence. After discussing the two provisions, Gleeson CJ and Hayne J19 somewhat ambiguously concluded that: The provisions . . . do not readily lend themselves to circumstances in which, for example, a person is acquitted of the offence of supplying drugs . . . and is then charged with possession of the drugs.** Justices Gaudron and Gurnmow21 made the point more clearly. They considered that the original indictment for murder could not have supported a conviction for perjury alleged to have occurred during the course of the murder trial. In the same manner, the respondent could not, upon the indictment for perjury, be convicted of the murder of Deidre. It was thus held that the respondent was not entitled to enter the pleas provided for in the Criminal Code.
B. Double Jeopardy and Abuse of Process at Common Law As to the position at common law, the court considered that the interests of peace, cer- tainty, and security overrode the interest in bringing fresh charges against a defendant on the basis of new evidence. In arriving at this decision, various policy grounds were considered. These included firstly, the public interest in concluding litigation through judicial determinations, which are final, binding and conclusive. The second ground concerned the need for orders to be treated as incontrovertibly correct,22so as to limit the scope for conflicting judicial deci- sions, which would tend to bring the administration of justice into disrepute. Thirdly, the court was concerned to protect the interest of the individual in not being twice vexed for the same cause. A plea of autrefois acquit at common law will thus be established if there is any degree of coincidence between the elements of the two offences.23The Court thus accepted that the concepts of justice and truth cannot always coincide.24
C. Application to the Facts The main problem faced by the judges was that the factual inquiries made at the two trials came to focus upon the same issue - whether the respondent killed Deidre Kennedy.25 Applying the reasoning in R v Hum~hrys,~~and Rogers v The Queen,27the court held that '[wlhen a prosecution for perjury is merely a second attempt to secure a conviction on a criminal charge, the court has discretion to stay the proceedings in the exercise of its inherent jurisdiction to prevent an abuse of process.'28 The High Court however, took a different point of view when it considered whether the cogency and weight of the further evidence was to be considered: The Court of Appeal concluded that the further evidence adduced at the perjury trial was defi- cient and unsatisfactory, and that it added little to the original evidence, but it considered that examining the strength and cogency of the new evidence was crucial to the exercise of the dis- cretion to stay the proceeding. In that respect, the reasoning of the Court of Appeal was unduly favourable to the prosecution. The inconsistency between the charge of perjury and the acquittal of murder was direct and plain.29
l9 Ibid [8]. 20 Ibid [lo]. 21 Ibid [68]. 22 This particular principle was developed specifically in the case of Rogers v The Queen (1994) 181 CLR 251. 23 This principle was developed in Pearce v The Queen (1998) 194 CLR 610; discussed by Gaudron and Gummow JJ in R v Carroll [2002] HCA 55, [91]. 24 R v Carroll [2002] HCA 55, [22]. *' Ibid [25], [41]. 26 [I9771 AC 1. 27 (1994) 181 CLR251. 28 R v Carroll [2002] HCA 55, [34] 270 Case notes
Accordingly, the laying of the charge of perjury, solely on the basis of the respondent's sworn denial of guilt, was an abuse of process regardless of the cogency and weight of the further evidence that was said to be available.30The court thus concluded that the cogency of new evidence is irrelevant to the question on whether a retrial should be allowed.
Despite the unanimous support for the double jeopardy principle in the High Court of Aus- tralia, the decision sparked a significant public outcry. Shortly after the decision was handed down, Queensland's Attorney General Rod Welford planned to ask the standing committee of Attorneys-General to review the double jeopardy rule.31 New South Wales is also attempting to abolish this 800-year rule,32by forging ahead with its own proposed changes to the double jeopardy principle.33Peter Dutton, the Federal Member for Dickson in Queensland has embarked upon a campaign with Deidre Kennedy's mother, to amend the double jeopardy rule.34They have launched a petition, which calls for the creation of a new law, dubbed Deidre's Law, which similar to the UK reforms, would give the Attorney-General the discretion to set aside the double jeopardy principle in exceptional cases.35In particular, this would apply to cases where new tech- nology allowed previously unavailable evidence to be uncovered. A meeting of the Attorneys-General in Melbourne on 11 April 2003 endorsed a careful review of the centuries-old principle, to consider if any modification was necessary.36Mr. Welford proceeded to separate the issue of double jeopardy reform from the Deidre Kennedy case, by claiming that the Federal Government had the power to overturn the High Court decision.37 Although both Mr. Welford and Queensland Premier Beattie want a uniform national approach before they would agree to a change in the law, Victoria's Attorney-General Rob Hulls has clearly stated that Victoria would not be rushing to abolish the long-standing principle. According to him, the law could be changed to make it clear that trying a person for murder, and then perjury, was not double jeopardy.38 Although the Model Criminal Code Officers Committee were to review this principle and put forward any options for change at the Standing Committee of Attorneys-General meeting in August 2003,39their report has not been finalized, and thus no options for change were put forward in this meeting. Despite this, Peter Dutton and Deidre Kenney's mother continue to fight for reform to the double jeopardy principle.40 It can be seen however that the double jeopardy principle provides protection to the citizen by preventing him or her from being prosecuted again, for an offence for which he or she may have been acquitted. Implicitly, it acts as a limit on State power by preventing
29 R v Carroll [2002] HCA 55, [44]. Ibid. Sydney Morning Herald, Double jeopardy in the dock (18112102) prosecution as an instrument of oppression. However, the common law is always subject to the will of parliament. Legislation can modify or negate any right or protection provided by the common law, subject to the Constitution of Australia, and therefore the current pro- posals to modify the rule against double jeopardy, if accepted in Australia, can lead to the introduction of legislation which changes this long standing rule, as done in the United Kingdom. By the time this case note is published, the recommendations of the Modem Criminal Code OfJicers Committee may be published, and depending on their recommendations, Aus- tralia could be on its way to changing a fundamental principle of law.