Double Jeopardy has been long regarded as a fundamental legal principle of Criminal Law. Double Jeopardy is a law or rule that prevents a retrial for an offence the accused has already been convicted or acquitted for.
How the law defines ‘Double Jeopardy’
As outlined in section 17 of the Criminal Code Act 1899:
“It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged.”
What circumstance calls for Double Jeopardy?
To raise the defence of Double Jeopardy, a fresh charge against the accused would need to be the same as one previously dealt against the accused; for which they were acquitted.
This is challenged when the case is in regard to the alleged offence of murder -as stated in the Criminal Code 1899, Section 678B:
(1) The Court may, on the application of the director of public prosecutions, order an acquitted person to be retried for the offence of murder if satisfied that—
(a) there is fresh and compelling evidence against the acquitted person in relation to the offence; and
(b) in all the circumstances it is in the interests of justice for the order to be made.
Further, the defence of Double Jeopardy may not be granted if the new charge brought gives weight to a possible reflection on the previous acquittal; i.e. the new charge laid was for Perjury (lying under oath).
Creevey Russell Criminal Lawyers recently successfully represented a client in a pre-trial application before the District Court in Brisbane. The client was charged with a maintaining a relationship with a child. For the Prosecution to successfully prosecute the offence, they must prove that more than one ‘act’ occurred to the child. In our client’s case the prosecution was relying on allegations that some ‘acts’ were committed outside of Australia.
We filed a pre-trial application to have the charge dismissed on the basis the charge could not be made out as only one act occurred within Australia, and therefore the allegations did not fit the definition of ‘unlawful sexual acts’ pursuant to s 229B of the Criminal Code. After filing our written submissions and material the Prosecution conceded and agreed to withdraw the charge.
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