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Evan Whitton
16 May, 2005  
The common law's unjust tricks with double jeopardy

Common lawyers contorted the double jeopardy principle of 1164 to mean that: you shouldn’t be punished twice, therefore you shouldn’t be punished once. Now look at the vexatious abuse of justice in Queensland’s Carroll case

A piece on Mr John Dormer Elliotts remarkable if self-proclaimed – sexual athleticism (Justinian, November 30, 2004) noted that double jeopardy means wrong not-guilty verdicts are never wrong.

The theory has a vaguely respectable history going back to ancient Greece. We dont need Inspector Javert pursuing us to the grave, but it is gravely irresponsible to allow an acquitted monster to stalk the streets after incontrovertible evidence of his guilt emerges.

imageThe English version apparently has its origin in a barney in 1164 between Henry II and Archbishop Thomas a Becket (seen here). Henry wanted his courts to re-try criminous clerks who had already been convicted in church courts, but Becket insisted that no man should be punished twice for the same offence.

From that, common lawyers, justly famed for their sleight of mouth, later developed a wonderful doctrine: you shouldnt be punished twice; therefore you shouldnt be punished once. That is, autrefois convict (formerly convicted) is somehow the same as autrefois acquit (formerly acquitted).

The UK retrospectively abolished that ancient nonsense for major crimes from Monday April 4, 2005. The National Crime Faculty calculated that 35 persons acquitted of murder could be re-investigated and new charges brought, but the Kennedy case in Queensland suggests that if justice is left to judges, Australia will persist in error for a while yet.

In 1973, Deidre Kennedy, 17-months, was abducted from her home in Ipswich, Queensland, clothed in stolen women’s underwear, bitten on the left thigh, raped, and strangled. Her body was thrown on to the roof of a public lavatory.

Raymond John Carroll was tried for the babys murder in 1985. The jury heard evidence that he repeatedly bit his own baby daughter on the thigh; that ondontological examination showed the bite marks on the Deidre Kennedys body were his; that he stole womens underwear; and that his alibi was false.

imageThe jurors found him guilty, but appellate judges Sir Wally Campbell (pictured), Sir George Kneipp and Tom Shepherdson knew better. They said the jurors should have had a reasonable doubt that Carroll was guilty, and that Justice (as he then was) Angelo Vasta was wrong to admit prejudicial evidence that he bit his own baby. They did not order a re-trial; they said he was not guilty.

In 2000, Carroll was charged with perjury in that he had falsely denied his guilt at the murder trial. It was alleged that he had confessed to the murder, and that new ondontological evidence confirmed the previous evidence.

Carroll was found guilty and Justice John Muir gave him 12 years, but appellate judges Margaret McMurdo, Catherine Holmes and Glen Williams overturned the verdict. They said Carroll had effectively been tried twice for the same crime.

In December 2002, Murray Gleeson CJ and Mary Gaudron, Michael McHugh, Bill Gummow, and Ken Hayne JJ agreed with McMurdo et al. McHuge huffed that the perjury prosecution was a vexatious abuse of process.

Eleven appellate judges had triumphed over 24 jurors. Jurist B.S Dawson commented: How do those judges sleep at night? The Carroll case is a model for judicial disintegration of the social fabric.

It has been reported that Raymond John Carroll has made a point of appearing at the checkout of an Ipswich Woolworths store manned by the mother of the baby bitten, raped and strangled 32 years ago. She might suspect that double jeopardy is a vexatious abuse of justice.