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Evan Whitton
16 October, 2006  
Le vice Anglais

Former Home Secretary David Blunkett got rid of the double jeopardy rule. NSW is half-way there and now reform of this bit of the criminal law is the official policy of the Council of Australian Governments. Various acquitted are watching anxiously

It was suggested here on October 3 that judges could improve their productivity if they are trained separately from lawyers. The splash in The (Sydney) Sun-Herald of October 8 was:


It’s a step, and perhaps that distinguished lawyer, Little Jackie Howard, will offer judges $3,000 from his new scheme “to retrain workers and help the poorly educated”.

* * *

imageJ. J. Spigelman CJ (NSW) said this at his swearing-in in 1998:

“The common law and the adversary system … is [sic] one of the greatest mechanisms for the identification of truth … that has ever been devised … [The legal] profession has an ethical dimension and values justice, truth and fairness.”

Who could possibly disagree with such an eminent jurist? Justice H. Roland Hansen, 64, of the Victorian Supreme Court, might. Matthew Drummond reported in the Fin Review of September 30 that he observed “dryly” in Westpac v Hilliard:

“A common law trial is not an inquiry into the truth.”

* * *

One of the kinder things you could say of those olde timey English judges who gave us the “rule of law” is that they were merely suffering from le vice Anglais, i.e. a terrible incapacity to think straight.

For example, the anonymous judge who invented the rule against double jeopardy must have been inextricably enrooted in le vice.

As noted here (May 16, 2005), the rule derives from Archbishop Becket’s insistence in 1164 that it is wrong to CONVICT and PUNISH a person twice for the same crime.

Therefore, our judicial genius reasoned, it must be wrong to retry an UNCONVICTED and hence UNPUNISHED person. This merely required the invention of another tiny legal fiction: autrefois acquit (formerly acquitted) means exactly the same as autrefois convict (formerly convicted).

(On the embarrassingly rational continent, wrong acquittals can of course be appealed and the guilty convicted and punished. It is only when higher courts FINALLY acquit the accused that the autrefois acquit defence kicks in.)

Do judges, one wonders, ever speculate on how many criminals have escaped justice in 800 years because of the rule? And will continue to escape?

Billy Dunlop, for example. He murdered pizza girl Julie Hogg, in 1989, but two juries were hung and he was formally acquitted in 1991. Knowing he could not be retried, he boasted of murdering Miss Hogg.

imageIt was a politician, and a blind one at that, David Blunkett (pic), who finally (and retrospectively) got rid of the double jeopardy nonsense in the UK. His Criminal Justice Act 2003 came into force on April 4, 2005.

The Queensland first law officer, L. Denise Lavarch, was not persuaded. She said in September 2005 that double jeopardy was not on her agenda.

But with NSW AG Bob Debus determined to end double jeopardy – he got his Bill through the NSW lower house on Wednesday, September 27, 2006 – the COAG (Council of Australian Governments) stated in July 2006:

“COAG agreed that reform of the rule against double jeopardy is an important criminal law policy reform that merits nationally-consistent treatment.”

A double jeopardy working group was instructed to report to COAG and the SCAG (Standing Committee of Attorneys-General) by the end of 2006. The results of the group’s lucubrations will be awaited with some interest by, among others:

  • Raymond John Carroll, of Queensland. Juries twice found him guilty of charges relating to the 1973 murder of imageDeidre Kennedy, aged 17 months. Appellate judges twice acquitted him via the double jeopardy rule. (Justinian May 16, 2005.)
  • Peter Scanlon, John Elliot (seen here), and Kenneth Biggins, of Victoria. In 1996, Justice F. H. Rivers Vincent acquitted them of charges of theft of $66 million after wrongly, according to the Victorian Appeal Court, concealing all the evidence. (Justinian November 30, 2004.)

    That tired joke, British justice, got the first benefit of Blunkett’s Act on Monday, September 11, 2006. Billy Dunlop, now 43, pled guilty to the murder of Miss Hogg 17 years ago, and was formally convicted at the Old Bailey. He got life on the top and 17 on the bottom on Friday, October 6.

    Note. The US can probably never abolish the double jeopardy rule; it is entombed in the Constitution as the Fifth Amendment (1791) ...

    “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

    That folly may be an argument against a written Bill of Rights.


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