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Disagreement over double jeopardy

THE STATES and territories are divided over reform of the 800-year-old double jeopardy rule with Victoria and the Australian Capital Territory saying the case has not been made for change. At a…

user iconLawyers Weekly • 20 April 2007 • SME Law
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THE STATES and territories are divided over reform of the 800-year-old double jeopardy rule with Victoria and the Australian Capital Territory saying the case has not been made for change.

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At a Council Of Australian Governments (COAG) meeting earlier this month all other jurisdictions agreed to implement the recommendations of the Double Jeopardy Law Reform COAG Working Group on double jeopardy law reform, prosecution appeals against acquittals, and prosecution appeals against sentence. This occurred despite the absence of any real debate on the changes, both at that meeting and the Standing Committee of Attorneys General (SCAG) meeting earlier in the same week where the issue was expected to be on the agenda.

ACT Chief Minister Jon Stanhope has declared that reforms to the double jeopardy law ought to first be reviewed by the Law Reform Commission, while in Victoria lawyers have been campaigning to stop the current law from changing. Victoria and the ACT reserved their positions on the COAG working group’s recommendations.

England has already abolished the double jeopardy law in the wake of advances in DNA technology which have rekindled hopes that previously acquitted defendants could be brought to justice many years after the crime. Some Australian states have followed England’s lead with New South Wales heading the charge, enacting legislation last October to abolish the rule for serious crimes such as murder, manslaughter or gang rape carrying a sentence of 20 years or more.

However, opponents of reform say that while it might appear that DNA evidence adds a completely new dimension to the legal landscape, the potential has always existed for new evidence to turn up, such as murder weapons or new witnesses, after a verdict has been reached.

Stanhope is concerned the reforms are a populist response to particular cases, such as that of the Victorian man charged and acquitted over the murder of toddler Jaidyn Leskie. Greg Domeszewicz was acquitted in 1998 of the child’s murder but a coronial inquiry has since highlighted inconsistencies in his evidence. Due to the double jeopardy laws, he cannot be retried.

“It is tempting for politicians to make legal reforms in response to high-profile, emotional cases, but it doesn’t always make for good law. The need for such a fundamental reform should be demonstrable, evidence-based and proportionate,” Stanhope said in a statement.

The Law Reform Commission confirmed it has not been asked to look into the matter.

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