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Report Double Jeopardy THE LAW REFORM COMMISSION OF HONG KONG REPORT DOUBLE JEOPARDY This report can be found on the Internet at: <http://www.hkreform.gov.hk> February 2012 The Law Reform Commission of Hong Kong was established by the Executive Council in January 1980. The Commission considers for reform such aspects of the law as may be referred to it by the Secretary for Justice or the Chief Justice. The members of the Commission at present are: Chairman: Mr Wong Yan-lung, SC, JP, Secretary for Justice Members: The Hon Chief Justice Geoffrey Ma Mr Eamonn Moran, JP, Law Draftsman Mr John Budge, SBS, JP The Hon Mr Justice Patrick Chan, PJ Mrs Pamela Chan, BBS, JP Mr Anderson Chow, SC Mr Godfrey Lam, SC Ms Angela W Y Lee, BBS, JP Mrs Eleanor Ling, SBS, JP Mr Peter Rhodes Professor Michael Wilkinson The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at: 20/F Harcourt House 39 Gloucester Road Wanchai Hong Kong Telephone: 2528 0472 Fax: 2865 2902 E-mail: [email protected] Website: http://www.hkreform.gov.hk THE LAW REFORM COMMISSION OF HONG KONG REPORT DOUBLE JEOPARDY ________________________________ CONTENTS Chapter Page Preface 1 Terms of reference 3 The sub-committee 3 Public consultation 4 Layout of the report 4 Acknowledgements 4 1. The rule against double jeopardy 6 The rule against double jeopardy 6 The autrefois doctrine: the pleas of autrefois acquit and 7 autrefois convict Relevant statutory provisions and cases in Hong Kong 8 Prerequisites for a plea of autrefois acquit or autrefois convict 9 The same offence 10 At risk of conviction; a valid verdict 13 A final verdict 14 Stay of proceedings 16 Procedure for making an autrefois plea 20 Conviction or acquittal by a foreign court 21 2. Should the rule against double jeopardy be reformed? 23 Justifications for the rule against double jeopardy and 24 counter-arguments (a) Avoids the repeated distress of the trial process 24 (b) Reduces the risk of a wrongful conviction 25 (c) Promotes finality in the criminal justice system 25 i Chapter Page (d) Encourages the efficient investigation of crime 26 Arguments in favour of reform 27 Constitutional and human rights implications 28 England and Wales 29 New Zealand 30 South Africa 30 Other commentaries on Article 14(7) of the ICCPR 31 Should the rule against double jeopardy be reformed? 38 3. Relaxing the rule against double jeopardy 43 Exceptional circumstances that warrant the relaxation of the rule 45 Australia: New South Wales 45 Australia: Queensland 45 England and Wales 46 Retrial of a "qualifying offence" where there is "new 46 and compelling evidence" Retrial where there has been a tainted acquittal 49 New Zealand 50 The Crimes Act 1961 50 Recent reforms 50 Discussion and conclusions 51 (a) The grounds for relaxation of the rule 52 against double jeopardy (b) The types of offences to which the 54 relaxation applies (c) Definition of the relevant terms 61 Discussion and conclusions 69 Measures to prevent abuses 77 Australia: New South Wales 77 Australia: Queensland 78 England and Wales 78 New Zealand 81 Discussion and conclusions 82 The mechanism for making an application to quash an 84 acquittal Forum and the time limit for the application 84 Number of applications 85 Whether there should be an appeal channel in relation 87 to any decision on an application for quashing an acquittal Time limits for commencing a retrial after an order for 88 retrial Restrictions on publication and other safeguards 90 Australia: New South Wales 90 Australia: Queensland 91 England and Wales 91 ii Chapter Page New Zealand 92 Discussion and conclusions 93 Powers of investigation after acquittal 100 Australia: New South Wales 100 Australia: Queensland 101 England and Wales 101 Ireland 104 New Zealand 104 Discussion and conclusions 105 Retention of exhibits for a possible retrial 108 Hong Kong 108 The Criminal Procedure Ordinance (Cap 221) 108 The Police Force Ordinance (Cap 232) 109 The Independent Commission Against Corruption 110 Ordinance (Cap 204) England and Wales 110 Australia 112 Discussion and conclusions 112 Scope of application of the relaxation 117 Miscellaneous 120 4. Summary of recommendations 124 Annex A 131 Responses to consultation paper on Double Jeopardy 131 Annex B 132 Snapshot of responses to Recommendation 1 132 Annex C 133 Statutory provisions that provide for offences punishable by 133 15 years' imprisonment or more iii Preface __________ 1. The rule against double jeopardy stipulates that "no-one may be put in peril twice for the same offence."1 If a person has been previously acquitted or convicted of an offence and is later charged with the same offence, the rule against double jeopardy will apply to bar the prosecution.2 The rule is grounded on the notion that a person who has undergone the ordeal of a criminal trial should be left undisturbed following the final verdict, either to go on to lead a normal life if acquitted or to face the appropriate punishment if convicted. 2. While the rule against double jeopardy provides certainty and a conclusion for the individual who has been tried, from the community's point of view the question arises as to whether a person should be allowed to escape justice when new evidence, of sufficient strength, has emerged subsequent to his acquittal which points to his guilt. Rapid developments in recent years in forensic science and DNA testing have highlighted these concerns and changes to the law have been proposed or adopted in a number of jurisdictions. 3. In Australia, the inability in the case of R v Carroll3 to prosecute a person previously charged with and acquitted of murdering a baby girl was instrumental in prompting legislative change. The case concerned the murder in Queensland in 1973 of a 17-month old baby girl. The murder trial started in 1985. The key issue at the murder trial was one of identification and there was inconsistent expert testimony as to the identity of the person responsible for the bite-marks found on the baby's leg. Carroll was found guilty of murder but acquitted on appeal. By 1999, however, new evidence (in the form of a confession from Carroll to an inmate whilst he was in custody for the original trial, and improved expert evidence on the dental imprints found on the baby's leg) revealed that Carroll was responsible for the baby's death, but he could not be charged again with murder as he had been previously acquitted of that charge. Carroll was instead charged with, and convicted of, perjury on the basis that the new evidence showed that his testimony at the murder trial had been untrue. However, the perjury conviction was set aside on appeal on the basis that the perjury prosecution inevitably sought to controvert the earlier acquittal on the murder charge. The Crown then appealed to the High Court of Australia against the decision in the perjury case. 1 Law Commission, Report: Double Jeopardy and Prosecution Appeals (2001), Law Com No 267, at para 2.2. 2 Law Commission, Report: Double Jeopardy and Prosecution Appeals (2001), Law Com No 267, at para 2.2. The rule also applies where the accused could, by an alternative verdict, have been convicted at the previous trial. 3 [2002] HCA 55, [2000] QSC 308. 1 The High Court ruled that the conviction of Carroll for perjury, where the alleged perjury was Carroll's denial on oath that he had killed the baby girl, was in direct conflict with the determination of the Court of Criminal Appeal in acquitting Carroll on the charge of murder, and on common law principles the trial judge should have stayed the perjury charge as an abuse of process.4 The Crown's appeal was therefore dismissed. It should be noted that the occasion has not yet arisen in Hong Kong for the courts to consider similar factual circumstances. Hence, the reasoning in the Carroll case has not yet been tested in Hong Kong. 4. The Carroll case led to widespread demands in Australia for reform of the double jeopardy law. In New South Wales, the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 now makes it possible for an acquitted person in New South Wales to be retried for serious offences under the Crimes (Appeal and Review) Act 2001. In Queensland, the Criminal Code (Double Jeopardy) Amendment Act 2007 amended the Criminal Code by adding a new chapter providing exceptions to the double jeopardy rule. The effect is that an acquitted person may now be retried for murder or where there has been a "tainted acquittal" in respect of an offence for which the maximum sentence is 25 years' imprisonment. 5. In England and Wales, the law against double jeopardy has been amended on two occasions. The first amendment was made by the Criminal Procedure and Investigations Act 1996 which provides for the retrial of an acquitted person in respect of a "tainted acquittal" involving a fundamental defect in the previous proceedings that could affect the outcome of the case. More recently the law was amended by the Criminal Justice Act 2003, which came into operation in April 2005. The result of this amendment is that, in relation to certain serious offences classified as "qualifying offences", the prosecution may now apply to the Court of Appeal to quash an acquittal and to order the acquitted person to be tried again for the same offence. Since the passing of the 2003 Act there have been a number of applications to the Court of Appeal to quash a previous acquittal and for an order to retry the acquitted 4 [2002] HCA 55, at para 138: "It contravened the rule that the acquittal of an accused person 'may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict' (Garrett v The Queen (1977) 139 CLR 437 at 445)." See also: "126 At the trial for perjury, the central issue once again was whether the accused had killed Deidre Kennedy.
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