Double Jeopardy Reform: Political Expediency or Much Needed Change?

Abstract

Double jeopardy, or a plea of autrefois acquit/convict,1 is in its simplest form, a doctrine that no person shall be tried twice for the same offence. This paper examines the historical context of the doctrine and traces its passage through to the 20th century and describes its several principles and application in some detail. The paper also examines the rationality for reform in light of important judicial cases, such as R v Carroll2, which lead to media sensationalism and knee-jerk reactions from politicians who were more concerned about re-election than effective, principle-based law reform. In doing so it will examine the reforms it has undergone in England, New Zealand and Australia during the 21st century and whether the Australian reforms are a matter of media-driven political expediency or much needed change in a contemporary Australian legal arena. Whilst law reform is always necessary in an ever-changing society with ever-developing forensic science, it will be argued that such changes require careful consideration and should not involve hasty political reactions to media campaigns and poll-based political law-and-order platforms. In this respect, and more specifically, reform should not interfere with the rule of law3 which underpins Australian democracy, particularly so with respect to the maintenance of the separation of powers and the independence of the judiciary to ensure confidence in judicial outcomes.