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Double Jeopardy) Bill 2011 THIRTY-EIGHTH PARLIAMENT REPORT 66 STANDING COMMITTEE ON UNIFORM LEGISLATION AND STATUTES REVIEW THE CRIMINAL APPEALS AMENDMENT (DOUBLE JEOPARDY) BILL 2011 Presented by Hon Adele Farina MLC (Chairman) November 2011 STANDING COMMITTEE ON UNIFORM LEGISLATION AND STATUTES REVIEW Date first appointed: 17 August 2005 Terms of Reference: The following is an extract from Schedule 1 of the Legislative Council Standing Orders: “8. Uniform Legislation and Statutes Review Committee 8.1 A Uniform Legislation and Statutes Review Committee is established. 8.2 The Committee consists of 4 Members. 8.3 The functions of the Committee are - (a) to consider and report on Bills referred under SO 230A; (b) of its own motion or on a reference from a Minister, to consider or review the development and formulation of any proposal or agreement whose implementation would require the enactment of legislation made subject to SO 230A; (c) to examine the provisions of any instrument that the Commonwealth has acceded to, or proposes to accede to, that imposes an obligation on the Commonwealth to give effect to the provisions of the instrument as part of the municipal law of Australia; (d) to review the form and content of the statute book; (e) to inquire into and report on any proposal to reform existing law that may be referred by the House or a Minister; and (f) to consider and report on any matter referred by the House or under SO 125A. 8.4 For a purpose relating to the performance of its functions, the Committee may consult with a like committee of a House of the Parliament of the Commonwealth, a state or a territory, and New Zealand and similarly, may participate in any conference or other meeting.” Members as at the time of this inquiry: Hon Adele Farina MLC (Chairman) Hon Liz Behjat MLC Hon Nigel Hallett MLC (Deputy Chairman) Hon Linda Savage MLC Staff as at the time of this inquiry: Anne Turner, Advisory Officer (Legal) Renae Jewell, Committee Clerk Alex Hickman, Advisory Officer (Legal) Address: Parliament House, Perth WA 6000, Telephone (08) 9222 7222 [email protected] Website: http://www.parliament.wa.gov.au ISBN 978-1-921634-78-9 Government Response This Report is subject to Standing Order 337: After tabling, the Clerk shall send a copy of a report recommending action by, or seeking a response from, the Government to the responsible Minister. The Leader of the Government or the Minister (if a Member of the Council) shall report the Government’s response within 4 months. The four-month period commences on the date of tabling. CONTENTS GOVERNMENT RESPONSE..................................................................................................... I EXECUTIVE SUMMARY......................................................................................................... I RECOMMENDATIONS............................................................................................................ I 1 REFERRAL.................................................................................................................... 1 2 INQUIRY PROCEDURE .................................................................................................. 1 3 UNIFORM LEGISLATION............................................................................................... 1 4 SUPPORTING DOCUMENTS........................................................................................... 2 Summons..................................................................................................................... 2 Supporting Documents................................................................................................ 2 5 BACKGROUND TO THE BILL......................................................................................... 3 6 OVERVIEW OF THE BILL .............................................................................................. 4 Impetus for the Bill ..................................................................................................... 4 The drive for reform.................................................................................................... 5 Differences between the principles in the Double Jeopardy Law Reform: Model Agreed by COAG and clauses in the Bill............................................................. 7 7 SELECTED CLAUSES .................................................................................................... 8 Part 2: Clause 4 amending the Criminal Appeals Act 2004 ........................................ 8 Clause 4 - Inserting a proposed section 46A – administration of justice offences ..................................................................................................................... 8 Clause 4 - Inserting a proposed subsection 46A(1) - the definition of serious offence ......................................................................................................... 9 Clause 4 - Inserting a proposed subsection 46B(1)(b)(ii).................................. 10 Clause 4 - Inserting a proposed subsection 46B(2) ........................................... 12 Clause 4 - Inserting a proposed subsection 46C(4)(b)(ii).................................. 14 Clause 4 - Inserting a proposed subsection 46E(1) ........................................... 15 Clause 4 - Inserting a proposed subsection 46E(2) ........................................... 15 Clause 4 - Inserting a proposed subsection 46E(5) ........................................... 17 Clause 4 - Inserting proposed section 46G titled “Hearing leave applications” 18 Clause 4 - Inserting a proposed section 46L titled Restrictions on publicity .... 18 Clause 4 - Inserting a proposed subsection 46M(1) .......................................... 20 Part 3: Clause 5 titled Criminal Code amended........................................................ 21 The Double Jeopardy Rule ................................................................................ 21 History of Double Jeopardy............................................................................... 22 Arguments for Reform of the Rule.................................................................... 22 Arguments against Reform of the Rule ............................................................. 23 8 OTHER MATTERS....................................................................................................... 24 9 REVIEW OF THE CRIMINAL APPEALS ACT 2004 AND THE CRIMINAL CODE................. 25 10 FURTHER AMENDMENTS TO THE BILL ...................................................................... 26 11 CONCLUSION ............................................................................................................. 26 APPENDIX 1 LIST OF STAKEHOLDERS........................................................................ 29 APPENDIX 2 IDENTIFIED STRUCTURES OF UNIFORM LEGISLATION...............33 APPENDIX 3 FUNDAMENTAL LEGISLATIVE SCRUTINY PRINCIPLES ...............37 APPENDIX 4 DETAILS OF THE SUMMONS...................................................................41 APPENDIX 5 DOUBLE JEOPARDY LAW REFORM: MODEL AGREED BY COAG ...........................................................................................................................................45 APPENDIX 6 LIST OF OFFENCES UNDER THE CRIMINAL CODE THAT CARRY A PENALTY OF 14 YEARS OR MORE..........................................................................51 EXECUTIVE SUMMARY AND RECOMMENDATIONS FOR THE REPORT OF THE STANDING COMMITTEE ON UNIFORM LEGISLATION AND STATUTES REVIEW IN RELATION TO THE CRIMINAL APPEALS AMENDMENT (DOUBLE JEOPARDY) BILL 2011 EXECUTIVE SUMMARY 1.1 The Criminal Appeals Amendment (Double Jeopardy) Bill 2011 (Bill) makes significant changes to the criminal law in Western Australia, a system of law that has lain substantively undisturbed for the past century. 1.2 The Bill prescribes certain “serious” and “administration of justice” offences as offences for which the common law rule against double jeopardy, codified in section 17 of The Criminal Code as a defence, will be removed. The rule provides that: No man is to be brought into jeopardy of his life, more than once, for the same offence. If the prosecution attempts to do so, the accused may plead that he has already been convicted (autrefois convict1) or 2 3 acquitted (autrefois acquit ) of the same matter. 1.3 Removal of the defence against double jeopardy followed public outrage over the decision in the seminal case of R v Carroll4 in 2002 as well as other local and international criminal case law and inquiries. RECOMMENDATIONS 1 The Committee has made eight narrative form recommendations and one statutory form recommendation. The recommendations are grouped as they appear in the text at the page number indicated. 1 Meaning, ‘I have already been convicted’. 2 Meaning, ‘I have already been acquitted’. 3 R v Carroll (2002) 213 CLR 635 at paragraph 128 per McHugh J. 4 (2002) 213 CLR 635. i Uniform Legislation and Statutes Review Committee Page 11 Recommendation 1: The Committee recommends that the Parliamentary Secretary representing the Attorney General amend the Bill to make it clear and put beyond doubt whether an alternative verdict for an offence, which was not a “serious offence”, would be available on an indictment for a serious offence filed following the grant of leave. Page 13 Recommendation 2: The Committee recommends that the Parliamentary Secretary representing the Attorney General explain the reason for the position taken with respect to retrospectivity
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