The problems with the existing Victorian law known as double jeopardy are more than just letting criminals walk. To begin with not only does it violate the bedrock of our legal system, the rule of law, by not treating all people equally, but in creating opportunities for felons to escape answering for their crimes, it diminishes the general public's respect and support for the judicial system as a whole.

Let us first however look at the law as it currently exists in Victoria

Double Jeopardy as it Now Stands

The law in Victoria on appeals after an acquittal of a criminal prosecution.

• Section 394 of the Crimes Act 1958 provides:

"In any plea of autrefois acquit or autrefois convict it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted (as the case may be) of the said offence charged in the indictment or presentment."

• Section 26 of the Victorian Charter of Human Rights and Responsibilities Act 2005 states that:

"A person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law."

• Common Law

In R v Carroll (2002) 213 CLR 635: [2002] HCA 55  the High Court confirmed that at common law a person acquitted in a criminal trial cannot be subsequently prosecuted for perjury if the facts needed to prove the perjury offence are in essence the same as those presented in the original trial. That ruling applies throughout Australia.

What this means is:

Once an accused has been acquitted in a criminal trial he can not be prosecuted again for the same offence despite:

Evidence, such as:

• Recanting of testimony given by key witnesses in the original trial
• New and compelling evidence such as DNA
• Admission of guilt

Error of law, such as:

• The trial judge giving an incorrect or improper summation to the jury
• The trial judges incorrectly denying the admission of evidence

Corruption of Process, such as:

• Inducing false testimony (getting someone to give a false alibi)
• Threatening or bribing a witness
• Threatening or bribing a juror or an officer of the court

Also:

• The law does not relate to only a jury acquittal. If, in a criminal case, a jury should actually find the accused guilty but an appeal court should decide that the jury was wrong on the evidence before them, then not only do they overrule the guilty verdict with an acquittal, but that acquittal can also never be challenged.
• Due to R v Carroll as mentioned above, there is no deterrence preventing an accused from falsely declaring under oath that he did not do the crime he or she is charged with.
• It is not so much that after an acquittal, the law "closes the book" on whether justice succeeded. The law can actually know that justice failed and yet will still do nothing.

s 450A(4) of the Crimes Act 1958 (Victoria) allows for an avenue for appealing a ruling by a judge in a trial that may have led to an acquittal. However this is, as is said, strictly a moot point procedure for the sake of understanding if the law happened to be applied correctly, and even if successful, will not lead to an alteration of the 'not guilty' verdict. As stated: "A reference under this section shall not in any way affect ... any acquittal in that trial."

The Problems with Double Jeopardy

1. Criminals Walk
 Even though we do not know which of those the state would like to re-prosecute are guilty and which are actually innocent, it would be extremely naive to believe that no felons slip though the cracks. Even defenders of the double jeopardy law admit that "the price to pay" is the occasional malefactor escaping justice.

2. The Rule of Law
It is an important part of the judicial system that impartiality exists in all civil and criminal procedures. The court looks at both sides with equal favour. The symbol of justice in most English speaking democratic countries is Justitia, the Roman goddess of justice,  holding the sword and scales while being blindfolded. The blindfold implies that she is not to be influenced by the appearance or circumstances of any one side. As one adage of the Rule of Law prescribes, "all people are equal under the law". After a criminal conviction the defendant always has an ongoing fundamental right to appeal his or her conviction. This is as is it should be. It therefore seems highly questionable to hold as a principle that one party to a judicially convened court hearing always has a right to appeal the decision made, but the other party does not.

3. Not just done, but be seen to be done.
It is one thing for investigating authorities not to have any leads as to who may have committed a recent crime. It is quite another for them to have full confidence in knowing who the perpetrator is, but yet to be hamstrung by an anachronistic centuries old law from any further prosecution.

"... it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."
Lord Chief Justice Hewart in R v Sussex Justices Ex parte McCarthy [1924] 1KB 256 at 259

4. Respect for the Law
Possibly the most important bulwark of any criminal justice system is our confidence in it.  This confidence can only be shaken whenever we hear the term "getting off on a technicality": those using the rules to their advantage in an exploitation of inadequate contemporary evidence, perjury or judicial errors of law to evade ultimately answering for their crimes.

5. Unequal pressure on judicial decisions.
As legal scholar Larry Laudan has held, it would seem reasonable to suppose that trial judges would prefer not to have higher courts reverse too many of the decisions they make during their trials. A judge whose decisions are regularly overturned on appeal probably will be perceived by his peers as less than fully competent. Given this, it becomes significant that virtually no trial rulings made favouring the defendant will be appealed (as nothing will come of it) but that rulings favouring the prosecution will obviously be given serious consideration if it will give the defence an opportunity to appeal a conviction.
This is not to imply that all judicial decisions are driven by craven self interest where otherwise the decision would be clear in any given area. However many trials involve motions calling for rulings that are close calls or borderline cases, where a plausible argument can be made for ruling one way or the other. In those circumstances would it not be a surprise to find a pattern of judicial rulings in favour of the defendant and, not coincidentally, of the sort that would seldom be overruled on appeal?
Laudan, Larry, Truth, Error, and Criminal Law: An Essay in Legal Epistemology, Cambridge University Press, New York, 2006, p.205.

6. The Law is not a Game
Most people do not believe justice should be viewed as a game where if one plays it correctly and manages to carry the ball a certain distance, ducking and diving so as not to be tackled, there then will be goal posts of sanctuary from further prosecution.

7. Sanctuary for Criminals?
It seems incredible that in the twenty-first century, society should maintain a system in which people highly suspected of committing crimes are able, due to technical reasons, to walk freely amongst us.  Unless society is getting something substantial in return, how can anything justify state sanctioned immunity for criminal activities.

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