Request to the VLRC

Reply from the VLRC

Response to the Reply

Billy Dunlop

In 1989 the body of a Julie Hogg, pizza delivery driver and divorced mother of a three year old, was found behind the bath panel of her Teesside home in northern England. She had been strangled and sexually assaulted.

The culprit, labourer Billy Dunlop, who was an acquaintance of Hogg for many years, initially denied any responsibility and managed to get through two criminal trials where in both cases the jury failed to agree on a verdict. After the second trial in 1991, he was formally acquitted and due to existing laws of double jeopardy held to be free from any further prosecution for the murder. This was a double slap in the face for the victim's parents considering that not only was the killer protected against any further prosecution, but the double jeopardy law guaranteeing such normally only applies after a jury of one's peers comes to an agreement on a verdict.

Released from custody, Dunlop's freedom allowed him to partake in further acts of violence which ultimately led him to a seven year term of imprisonment for grievous bodily harm after attacking a couple with a knife and a baseball bat. Years later while in prison he admitted to a warder, perhaps boasting, that he had indeed killed Julie Hogg in 1989.

Through the determined and persistent efforts of Julie Hogg's mother, Ann Ming, supporters, the local newspaper and the then UK  Home Secretary David Blunkett, together with community reactions to other apparent miscarriages of justice,  the British law on double jeopardy was eventually reformed such as to allow new trials where new and compelling evidence as to culpability existed.

As the 2001 confession fell into that category, Dunlop was charged again and subsequently convicted of the 1989 murder and sentenced to life imprisonment. 

Man Convicted of 1989 Murder in First 'Double Jeopardy' Trial

Double Jeopardy Man is Given Life

Who's Laughing Now Billy?

Mario Celaire

In 2001 British professional footballer and part time builder Mario Celaire beat unconscious a Cassandra McDermott at her mother’s flat in South London. She subsequently died from her injuries. At his 2002 trial, where evidence of his history of assaults upon Ms McDermott were viewed as inadmissible, Celaire was acquitted of both murder and manslaughter.

In 2007 Celaire attacked again, this time 19 year old ex girlfriend Kara Hoyte, leaving her with life threatening injuries from blows from a hammer. After a year’s rehabilitation from paralysis and a speech impediment she was able to report to police the fact that after a confrontation, Celaire had confessed to her his culpability in McDermott’s death. Due to Britain’s relaxation of its Double Jeopardy laws, the authorities were again able to bring charges against Celaire for not only the 2007 assault but also his 2001 crime.

In May 2009 he pleaded guilty to both charges and two months later was given two life sentences. Ms McDermott’s sisters Sophia and Andrea said at the time of conviction “The fact that the law has changed is a great achievement….We knew Mario killed Cassie. We have waited eight years for this. Eight years of hell.”

DailyMail Online

APPROACH TO THE VLRC

The document below was presented to the Victorian Law Reform Commission on Wednesday the 8th October 2008 by Noel McNamara and two associates. It was courteously received by the VLRC’s Chief Executive Officer, Ms Padma Raman and her staff.  

Request to the VLRC

Executive Summary

Since the highly publicised Australian High Court appeal of the Queensland criminal prosecution, R v Carroll, there has been extensive public criticism of the legal concept of autrefois acquit and autrefois convict, otherwise known as Double Jeopardy. Once an accused has initially been acquitted of a crime, this 800 year old law, described by many as an anachronism, grants the suspect immunity from further prosecution despite the strength of incriminating evidence that may subsequently come to light.

 As will be shown, there is little consensus in international legal systems regarding the application of the law, and in recent years many jurisdictions with similar legal systems to that of Victoria, have either instituted reforms of the Double Jeopardy law or are in the process of doing so.

 Therefore we, the undersigned, request that an inquiry project be undertaken to ascertain if this existing law is a necessary component in the Victorian criminal justice system for the twenty first century; an inquiry to be instituted tabula rasa, free of limitations so as to be able to work closely with the community and be inclusive of all their concerns and expectations.

Current Victorian Law

Victorian law relating to the concept of Double Jeopardy (autrefois acquit and autrefois convict) is contained in both legislation and common law. For example:

• 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.”

• 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. This ruling applies in Victoria.

Moreover, in Victoria there are no avenues for the Prosecution to appeal an acquittal in a criminal trial even where:

> compelling new evidence has come to light which strongly suggests the defendant was in fact guilty; or
> an administration of justice offence, such as perjury or interfering with a witness, has occurred which directly or indirectly resulted in the acquittal; or
> an erroneous judicial direction to a jury or ruling on the admissibility of evidence was made which directly or indirectly resulted in the acquittal; or
> it otherwise becomes manifestly apparent that a guilty person has escaped the penalties of the law (for example if an accused, once acquitted, publicly announced he did in fact commit the crime).

Also a manifestation of the existing common law is that in a criminal trial there is minimal deterrence against an accused committing perjury by falsely denying under oath he committed the crime he is charged with.

Perceived problems with the law of Double Jeopardy

It is submitted that the current principles governing Double Jeopardy are problematic and a matter of concern for the following reasons:

(a) It seems to be anomalous that the law gives a convicted person extensive rights to challenge his or her conviction (and sentence) on the basis that some type of error was made at the trial but no converse right is given to the prosecution to challenge an acquittal which appears to be the result of exactly the same type of error (for example, an erroneous judicial direction, wrongful exclusion of evidence, fresh and compelling evidence and so on). A reasonable Victorian might rightly ask why this concept of ‘justice’ would only apply to those accused of crimes and not to the broader community interest, particularly that of crime victims.

(b) Principles of Double Jeopardy developed many centuries ago when vastly superior scientific methodologies such as DNA profiling (and other modern forensic sciences) simply did not exist.

(c) Courts of appeal routinely uphold defence appeals against conviction. Whenever such an appeal succeeds, the appellate court is confirming that a “substantial” miscarriage of justice occurred at the trial. Statistics are available to demonstrate the number of such miscarriages of justice. Those numbers are not insignificant. It is submitted that there is every possibility that a percentage of acquittals are due to the same type of miscarriages of justice. To take a simple example; under s.568 (1) of the Victorian Crimes Act 1958, the Victorian Court of Appeal can quash a conviction where the appeal court is of the view that the verdict of the jury is “unreasonable or cannot be supported having regard to the evidence”. In principle a court of appeal could equally apply the same test to an acquittal. However current law does not permit the Court of Appeal to even consider the possibility. 

(d) It is highly offensive to victims of crimes (if still alive) as well as their loved ones, when those whom the authorities suspect of committing such anti-social behaviour, are able, in certain situations, to walk freely amongst us with legal immunity.   

(e) More broadly, community respect for the law and confidence in the legal system can fall when  circumstances allow those suspected of criminal behaviour to ultimately evade paying for their crimes due to what are commonly called ‘legal technicalities’.

What has been publicly said of Double Jeopardy

·        “There is also the spectre of public disquiet, even outrage, when someone is acquitted of the most serious crime and new evidence, such as a confession, points strongly to guilt. These cases undermine public confidence in the administration of justice – and may do so in a damaging way.”
      Sir Anthony Mason, former Chief Justice of the High Court of Australia, 1987-1995,                    The Sunday Telegraph, December 2002

·        “People argued about the medieval right not to be tried twice, as though fraudulently getting off was some sort of game…”     
      The then UK Home Secretary David Blunkett, cited in ‘Justice at last: killer pleads            guilty   in Britain's first double jeopardy trial’, The Guardian, (London) 12th Sep    2006

·        “Where compelling new evidence comes to light to solve a serious crime, criminals shouldn't be able to hide behind what is a legal technicality. It's just common sense.”
 then New South Wales Premier Morris Iemma,  The World Today, ABC radio, 7th Sep, 2006

·        “It makes no sense to me that if someone gets off a particular case and then fresh evidence becomes available, DNA or otherwise, that they should ... literally get away with murder.”
South Australian Premier Mike Rann,    ABC News, 7th August, 2007.

·        “I think, not unreasonably, the public says if there is compelling evidence that a person who's been found innocent may have committed the offence for which they were found innocent, and that compelling evidence is clear cut DNA evidence, then there is strong argument for retrying that person again.” 
Bond University Criminologist Professor Paul Wilson speaking on ABC radio, The World Today - Friday, 27 January , 2006.

·        “I think we've got to be prepared to review principles like this in a contemporary setting…There is a feature of modern life that distinguishes us from the situation 800 years ago, and that is, as we all know, DNA evidence, which can prove guilt with almost scientific exactitude, other matters being equal.”
Queensland Chief Justice Paul de Jersey, The Courier Mail, (Brisbane), April 27 2007.

·        "If there is compelling evidence, say in the form of DNA or other scientific analysis or of an unguarded admission that an acquitted person is after all guilty of a serious offence, then, subject to stringent safeguards….what basis in logic or justice can there be for preventing proof of that criminality?"
The Right Honourable Lord Justice Auld, A Review of the Criminal Courts of England and Wales September 2001, Chap 12, para 51.

·        "My personal view is that the risk of real injustice to victims of the most serious crimes such as murder and rape must outweigh virtually all other considerations."
then W.A. Attorney-General Jim McGinty, ministerial media statement, April 2003

Other Jurisdictions

The Victorian Law Reform Commission has declared that it endeavours to “draw on initiatives and experience in other states and countries.” Given that, we would like to draw your attention to what is happening elsewhere. 

As described in brief terms below, the reform or application of laws relating to post acquittal appeals has been instituted in differing ways. 

New South Wales

In 2006 reforms were first introduced in Australia to abolish the concept that a jury’s acquittal in a criminal prosecution was sacrosanct. Depending on circumstances, the new laws relate to crimes accruing a fifteen year or larger sentence  but only where there is fresh and compelling evidence or an administration of justice offence has occurred[i]. An error of law by the court such as an incorrect summing up and directions to the jury cannot be grounds for a new trial. These laws can also be applied to indictable offences accruing any sentence when acquittal was not by a jury but by the discretion of a judge or appellate court. {Division 4 of the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 No 69}
The reforms were introduced retrospectively. 

 Queensland

In 2007 the Queensland government introduced Double Jeopardy reforms containing similar criteria to New South Wales with regards to the identification of a so called ‘tainted acquittal’. Unlike New South Wales these laws relate to only crimes punishable by a 25 years or more imprisonment and the introduction was prospective[ii]. 

South Australia

On the 10^th July 2008 the South Australian parliament passed the Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008. It is applicable for crimes ranging from trafficking in a commercial quantity of controlled drugs and aggravated robbery to more serious crimes such as manslaughter and murder. Retrials will be allowed where there has been a conviction for an administration of justice offence relating to the original trial or where there is fresh and compelling evidence. So that acquittals attained before its effective date (1^st August 2008) can still be revisited, the law has been introduced retrospectively.

New Zealand

On the 19th June 2008 the Criminal Procedure Bill[iii] was passed by the New Zealand parliament authorising retrials where there is new and compelling evidence or an administration of justice offence. However here the minimum relevant sentence is 14 years and the administration of justice offence is only held to be relevant if perpetrated by the accused. The laws were introduced prospectively.

England and Wales

In 1996 the Criminal Procedure and Investigations Act was introduced, Section 54 of which  allows retrials where an administration of justice offence had occurred which would have led to a false acquittal[iv]. In 2005 the Criminal Justice Act (2003)[v] was brought into law which, subject to other prerequisites,  authorised new trials where new and compelling evidence came to light. The Act was introduced retrospectively and only relates to crimes punishable with a life sentence. 

Canada

Even though Section 11(h) of the Canadian Charter of Rights and Freedoms is in theory a protection against Double Jeopardy for a person acquitted of a crime, the specific wording of the section relates to the status of an accused after he has been “finally acquitted”. Subsection (1)(a) of Section 676 of the Criminal Code of Canada[vi], titled ‘Right of Attorney General to Appeal’, allows the Prosecution to appeal the outcome of any criminal trial of first instance if the reasons for appeal relate to the operation of that trial.

“The Attorney General …may appeal to the court of appeal … against a judgment or verdict of acquittal … on any ground of appeal that involves a question of law alone.”

 Thus an administration of justice offence as well as (unlike the practices in Queensland, New South Wales, and New Zealand) judicial errors of law, would be cause to grant a repeat prosecution but new and compelling evidence coming to light would not. 

European Union

All members of the European Union except Germany, Belgium,Holland, Spain  and the United Kingdom have signed the Charter of Fundamental Rights of the European Union. Article 50[vii] of the Charter declares:

“No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted…” [NB: Emphasis added] 

Thus a new trial can be permitted if an appellate court recognises any errors or law or abuses of process in the original proceedings. However after the process is finalised, no further trial will be tolerated even if new evidence is discovered.   

Federal Republic of Germany

As in the European Union an acquittal can be appealed up until the final judgement. However, in Germany even after the ‘final judgement’ a new trial can still be allowed. Section 362 of the Strafprozessordnung [StPO] (code of criminal procedure) declares[viii]:

Reopening of proceedings concluded by a final judgment shall be admissible to the defendant’s detriment:

1.  if a document produced as genuine, for his benefit, at the main hearing was false or forged;
2.  if a witness or expert, when giving testimony or an opinion for the defendant’s benefit, was guilty of wilful or negligent violation of the duty imposed by the oath, or of wilfully making a false, unsworn statement;
3.  if a judge or lay judge participated in drafting the judgment who was guilty of a criminal violation of his official duties in relation to the case;
4.  if the person acquitted made a credible confession, in or outside the court, that he committed the criminal offence.  

Republic of India

Only autrefois convict is part of Indian constitutional law. Once a sentence has been served a person cannot be retried. There is no legal obstruction to a retrial after an acquittal.

 “No person shall be prosecuted and punished for the same offence more than once.”   Article 20(2) of the Indian Constitution[ix]. 

Japan

Acquittals can be successfully appealed to consecutively higher courts, but once the highest court, the Supreme Court, denies a new trial, no further prosecution can take place due to article 39 of the Japanese Constitution[x] which declares: “No person shall be held criminally liable for an act …of which he had been acquitted, nor shall he be placed in double jeopardy.”

United States

Despite how the law has been interpreted over the years, technically America’s Fifth Amendment to its Constitution enshrines Double Jeopardy protections only against capital crimes where the sentence is death: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”[xi]

More important however, is that its application is limited to separate state or federal jurisdictions and does not carry over from one to the other. In the 1959 Supreme Court case of Bartkus v. Illinois[xii] the majority held that anyone acquitted of crimes in a state court can subsequently be prosecuted in a federal court for the same set of actions that were deemed to be criminal.

Requested Action

Unsettled Law

The essence of this request is not to nominate specific legislative reforms. It does not demand that changes such as those made recently by either the Queensland or New South Wales governments, or that the relevant laws of the democratic governments of the Republic of India or the Federal Republic of Germany should in whole or part be introduced in Victoria.

What it does suggest is that community belief in the law is in a state of flux considering: public comment; contemporary changes of the law in jurisdictions with very similar legal systems to our own; and current diversity in the application of the law in democratic societies the world over. Thus the Victorian Government would seem to have no justification in claiming that the existing law of Double Jeopardy is law that is not only quite settled but universally accepted.

Open Inquiry

We believe therefore that the best ideas for confirmation, reform or abolition of this existing law can be ascertained in no better way than for the Victoria Law Reform Commission to oversee a public inquiry. An inquiry run in such an open manner as to invite all possible suggestions, suggestions not restricted in any way by abridged or narrow terms of reference. 

For example, if the law of Double Jeopardy is to be reformed whereby, in certain circumstances, retrials after acquittals were allowed, the authority to order these would be vested either with the State (in the form of a senior officer of the government or an appeals court) or with the people (in the traditional common law form of a grand jury). We believe this decision to be of the utmost importance and something to be put to the Victorian people for research, comment and discussion. 

In the final deliberation of this topic, which shall occur in Victoria’s houses of Parliament, the peoples’ representatives shall declare what the correct law shall be, and what contrary suggestions are not acceptable. However, until that time, we believe that no government authority should have the right to declare that certain relevant suggestions by interested Victorians are not even worthy of discussion.

Summation

Reference

We ask that the Victorian Law Reform Commission suggest to the Victorian Attorney-General that he refer the matter of the law of Double Jeopardy to the Commission for research and community consultation.

As the concept has been to some degree entrenched in law by the Victorian Charter of Human Rights, we appreciate that any possible reform might involve modification to the said Charter of Human Rights as well as the 1958 Crimes Act or alternatively, an amendment to the Victorian Constitution. 

Approach

To adequately accommodate the concerns of all interested Victorians in this matter, whether they are for or against reform, we make two associated, and what we view to be very important, further requests:

Tabula Rasa
That, as there is little conformity in existing legislation on this law from both a national and international perspective, the Commission suggests to the Attorney-General that the terms of reference of such research and consultation reflect that fact, and as such should begin tabula rasa. That is, no preconceptions or limitations should be declared as to where reform should, or should not, go.  

Submissions Published
That all public submissions to such inquiry from those who do not wish to remain anonymous, be simply that: public. That effort is made by the Commission to publish all said submissions on its web site so as to allow interested members of the public to keep abreast of all arguments and developments and informed from where they come.

Suggested Terms of Reference 

In accordance with the above comment requesting that research and consultation to an inquiry on Double Jeopardy reform should not be constrained by prohibitive boundaries, we respectfully suggest that the terms of reference to an inquiry should identify the following broad range of issues that would hopefully accommodate every concern of interested Victorians.  

A.    Whether the current laws on autrefois acquit and autrefois convict should remain exactly as they are.

B.     If reform is appropriate:  

1.    Prerequisites for a Suspected False Acquittal

Should part or full justification for a new trial be?

a)  new and compelling evidence of the guilt of the accused
b)  new evidence which, when added to existing evidence, would amount to compelling evidence of the guilt of the accused
c)  proof of falsehood of compelling evidence or testimony given in original trial, even if such evidence or testimony was given in good faith
d)  compelling evidence of an administration of justice offence by the accused or any other party that may have affected the outcome of the trial
e)  an error of law in the original trial, the absence of which, would in all probability have resulted in a guilty verdict
f)   any other set of circumstances
g)  any combination of the above

Adjunct:

     a)  “new evidence” as described in Issue B. 1 a) and B. 1 b) is to be defined as:

1. new if it was not adduced in the original proceedings and could not have been adduced with the exercise of reasonable diligence    or
2. simply not adduced in the original hearings, irrespective of whether or not reasonable diligence was exercised

     b)  An “administration of justice offence” as described in Issue B. 1 d) is to be ascertained:

1. only if there has been a conviction for such offence    or
2. if there is sufficient evidence of such an offence even if no conviction has been attained due to a technicality such as the disappearance of the offender 

2.  Threshold of Degree of Crime Deserving Attention

What should the severity of the crime be as to warrant further judicial attention?

a)  no less than the crime of murder
b)  any crime that can accrue a life sentence
c)  any crime that can accrue a sentence of fifteen years or more
d)  any indictable crime
e)  any crime
f)  any other criterion to identify a suitable threshold

3.  Interests of Justice
As well as the accepted justifications in issue B. 1 and the accepted threshold in issue B. 2 being met, should the authority vested with the power to grant a new trial also have to insist on the interests of justice, as described in any of the list below, being served?

It is contrary to the interests of justice if:

a)  there has been an inordinate and unfair length of time since the acquitted allegedly committed the offence
b)  the prosecution has failed to act with reasonable diligence or expedition in bringing the application for retrial
c)  given that the accused had not been responsible for any administration of justice offence pertaining to the previous trial and that the original offence was not of a horrific nature, the accused had suffered enough and any repeat prosecution would be an unfair burden
d)  any other situation  

4.   Retrospective Legislation
Should changes to the law be applied in a retrospective or prospective manner?

5.  Court Costs for the Accused
Should costs for any further trial be afforded to the accused in the following situations?

a)  where the accused has not committed an administration of justice offence in his previous trial
b)  where the accused has a net worth below a set level
c)  any other situation
d)  all situations
e)  no situations

6.    Risk of Prejudice
In situations where a new trial was permitted, what protections should be afforded the accused against pre-trial publicity that may tend to prejudice any potential jury against his or her presumption of innocence?

a)  court mandated media blackout from time of:
      1.  initial recharging of accused
      2.  reopening of police investigation
b)  other protections
c)  no protections

7.   Authority to Grant a Retrial
Who should have authority to grant a new trial?

a)   a court of criminal appeal
b)   a committal hearing magistrate
c)   a grand jury
d)   some other tribunal or decision making body or authority
e)   a combination or option from a selection of the above

8.   Limit on Retrials
In the circumstances where retrials are permitted, should there be a limit to the number, and if so, what?

9.   Perjury

Should an acquitted accused be immune from prosecution for perjury when giving testimony, if proof of such perjury might contradict the earlier acquittal for the original crime?

10.   Other
Any other factor perceived to be relevant to the issue of reforming or abolishing the law known as Double Jeopardy.

Conclusion

The previous Chief Justice of the High Court of Australia, Murray Gleeson, has said:

 “Public confidence is invoked as a guiding principle…in relation to the institutional conduct of courts.  And it is a value that plays a part in the development of legal principle.”[xiii]

We believe it is of the utmost importance that this issue must be opened up to the Victorian people.

This will allow all segments of society to voice their concerns and be heard in an inquiry, to allow the large majority to come to a better understanding of what are the true virtues or vices of this law of Double Jeopardy.

On behalf of the undersigned,

Noel McNamara
Crime Victims Support Association (CVSA),
PO Box 8150, Fern Tree Gully, VIC. 3156
Fax: (03) 9298-8801
Email: nm@doublejeopardyreform.org
Mobile: 0419 897615

[i] Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2006  (NSW)           http://www.parliament.nsw.gov.au/prod/parlment/NSWBills.nsf/d2117e6bba4ab3ebca256e68000a0ae2/805603fb8527f381ca2571e100197f3e!OpenDocument

[ii] Criminal Code (Double Jeopardy) Amendment Act 2007 (QLD)      http://www.legislation.qld. gov.au/LEGISLTN/ACTS/2007/07AC049.pdf

[iii] http://www.parliament.nz/NR/rdonlyres/6A6607CC-B5CD-4D1A-BCB6-41805E572239/86619/DBHOH_BILL_6192_2599999999999999999999999999999.pdf

[iv] http://www.opsi.gov.uk/acts/acts1996/ukpga_19960025_en_9#pt7-pb1

[v] http://www.opsi.gov.uk/acts/acts2003/ukpga_20030044_en_1

[vi] http://laws.justice.gc.ca/en/C-46

[vii] http://www.europarl.europa.eu/charter/pdf/text_en.pdf

[viii] Wolfgang Schomburg, ‘Germany, Concurrent National and International Criminal Jurisdiction and the Principle of “Ne Bis In Idem”’ at http://www.cairn.info/revue-internationale-de-droit-penal-2002-3-page-941.htm

[ix] http://indiacode.nic.in/coiweb/coifiles/part.htm

[x] http://www.solon.org/Constitutions/Japan/English/english-Constitution.html

[xi] http://www.usconstitution.net/const.html

[xii] http://www.law.cornell.edu/supct/html/historics/USSC_CR_0359_0121_ZD1.html

[xiii] http://www.hcourt.gov.au/speeches/cj/cj_jca.htm

Reply From the VLRC

I have been asked to inform you of the outcome of the requests made to the Commission by you and seven other people concerning the law of double jeopardy.

The Commission considered your requests at its meeting on 21 November 2008. The Commission proceeded on the basis that it was being asked to consider two separate, but related, requests. First, that it was being asked to suggest to the Attorney-General that he refer the law of double jeopardy to the Commission for research and community consultation; secondly, and in the alternative, that it undertake the requested research and consultation as a community law reform project.

The Commission members were provided with a copy of your ‘Request to the VLRC’ and a brief background paper that had been provided to members of the Community Law Reform Division of the Commission.

The Commission resolved to decline your first request that it suggest to the Attorney- General that he give the Commission a reference to consider the law of double jeopardy.

The Commission noted the following matters:

• As your request outlines, the double jeopardy rule has been considered in a number of other jurisdictions where extensive research appears to have been conducted.

• As your request also outlines, section 26 the Victorian Charter of Human Rights and Responsibilities 2006 contains a right not to be tried or punished more than once for an offence. The Charter must be reviewed prior to 1 October 2011.

• The Department of Justice is currently undertaking a review of the Crimes Act 1958.

The Commission also resolved to decline your second request that it undertake research and consultation about the law of double jeopardy as a community law reform project.

As you aware, the Commission has detailed criteria concerning selection of Community Law Reform projects which must involve ‘relatively minor legal issues that are of general community concern. The Commission decided that your proposal did not meet a number of the selection criteria.

Thank you for raising this important issue with the Commission.

Yours sincerely

Padma Raman
Chief Executive Officer

Response to the VLRC Reply

In response to the above reply, the letter below was posted on the 10th December 2008.

Ms Padma Radman
Chief Executive Officer
Victoria Law Reform Commission
GPO Box 4637
Melbourne Victoria 3001
10^th December 2008

CC:   Phil Cleary, Penny Martin, George Halvagas, Robyn Kastenberger, John Noonan, Frank Chen, Philip Lillingston

Subject: Reasons for Your Decision

Virtually all commentators of whatever persuasion regard the provision of reasoned decisions as an essential component of fair procedure, and official bodies have demonstrated a similar enthusiasm. In their annual report for 1981-2 the Council on Tribunals stated that a requirement to provide reasons ‘helps the parties to understand the decision and contributes to the openness and fairness of the decision and the proceedings…’^#

Dear Ms Radman, 

We, members and friends of the Crime Victims Support Association, are in receipt of your letter of the 25^th November 2008 informing us that the request of the Association has been refused.  A decision was made on behalf of the Commission to refuse to suggest to the Attorney-General that he refer this matter back to the VLRC for research and community consultation.

We have not been able to find in your letter any reasons to support this decision made on the behalf of the Commission, to refuse to exercise your power to suggest to the Victorian Attorney-General that he refer this matter back to the VLRC for research and community consultation.

When we say this we do not imply that we do not accept the reasons given, rather that we in fact, do not find any specific reasons at all that relate to this refusal.

We did notice certain observations that were ‘noted’ in your letter, as listed below:

•  As your request outlines, the double jeopardy rule has been considered in a number of other jurisdictions where extensive research appears to have been conducted.
• As your request also outlines, section 26 the Victorian Charter of Human Rights and Responsibilities 2006 contains a right not to be tried or punished more than once for an offence. The Charter must be reviewed prior to 1 October 2011.
• The Department of Justice is currently undertaking a review of the Crimes Act 1958.

However, as you may well be aware, from cases of precedence such as Allen Allen & Hemsley v Australian Securities Commission (1992) 27 ALD 296, Soldatow v Australia Council (1991) 22 ALD, and Re Palmer and Minister for the Capital Territory (1978) reasons have to be more than simply the declaration of facts, but a detailed progression of the decision maker’s reasoning process such that there can be an adequate check for any possible legal error.

In your letter, the reasoning process for your decision was not explained but rather, some facts were stated about certain future reviews of Victorian legislation as well as the incidence of the double jeopardy rule being considered in other jurisdictions.

We are at a loss to understand how these mentioned situations justify the refusal of our request.  Moreover, concerning the statement ‘where extensive research appears to have been conducted’,  we have no doubt that repeated research may have been conducted, but can you substantiate the claim that this research was in fact extensive?  As you will remember from our request, we asked that research, if granted, should be comprehensive, so as to include all aspects of reform to the law, such as:

• the number of times a retrial may be allowed,
• who should have authority to grant a retrial,
• whether a defendant should retain immunity against perjury in certain situations,
• court costs for the accused when a retrial is undertaken, and
• if an error of law by the court should also justify a retrial.

We are unaware of any research conducted on these issues.

Oddly enough, the only time you did give a substantive reason,

…the Commission has detailed criteria concerning selection of Community Law Reform projects which must involve ‘relatively minor legal issues that are of general community concern. The Commission decided that your proposal did not meet a number of the selection criteria.

was to deny an action that we did not specifically request of the VLRC, viz. for the VLRC to conduct  a review on its own authority.

Consequently, under Section 8 of the Administrative Law Act 1978, we ask to be furnished with substantive reasons as to why members and supporters of the Crime Victims’ Support Association were denied their above mentioned request relating to the law of double jeopardy.

Yours Sincerely,

…………………………………………………………

Mr Noel McNamara

for the Crime Victims’ Support Association
PO Box 8150
FERNTREE GULLY VIC 3156

#  Richardson, G ‘The Duty To Give Reasons: Potential and Practice’ (1986) PUBLIC LAW 437 as cited in Margaret Allars’ Australian Administrative Law: Cases and Commentary (1997) p.213.

Reply to the Request for Reasons

I have received your letter dated 10 December 2008 in which you requested reasons under section 8 of the Administrative Law Act 1978 for the decision by the Commission not to suggest to the Attorney-General that he refer reform of the law of double jeopardy to the Commission.

Section 8 of the Administrative Law Act does not apply to the Commission because it is not a tribunal. Nor is it a body obliged by any other law to give formal reasons for decisions made by it pursuant to section 5(1)(c) of the Victorian Law Reform Commission Act 2000 because those decisions do not affect the legal rights and interests of individuals.
Nevertheless, in order to assist you to understand the decision, the Commission was keen to ensure that you were informed of matters, such as other and pending reviews, which were taken into account when it reached its decision. Those matters were set out in my letter to you of 25 November 2008.

If you believe the Attorney-General should refer a particular matter to the Commission, I am not aware of any reason why this request cannot be made to him directly.

Yours sincerely

Padma Raman
Chief Executive Officer

Response to Ms Raman’s Reply

This is an interesting letter. After declaring that the Commission does not by law have to explain its actions to those whose requests it refuses, Ms Raman then proceeds with the line:

 “Nevertheless, in order to assist you to understand the decision, the Commission was keen to ensure that you were informed of matters, such as other and pending reviews which were taken into account when it reached its decision…”

This apparently giving the impression that it somehow qualifies as a reason.

Let us then look at this information of matters.

A. “…other jurisdictions where extensive research appears to have been undertaken…”

As we previously stated in detail in our response to the Commission’s reply, we are unaware and would appreciate being informed of any research done that is indeed extensive.

B. “the Victorian Charter of Human Rights and Responsibilities 2006 [supporting double jeopardy]… must be reviewed prior to October 2011”

To begin, the reference to double jeopardy in the Charter amounts to thirty-four words out of a total of more than 1,500. One wonders what allocation of resources for any review (still possibly two years away) double jeopardy, and all its components, are going to get. Secondly, even if hypothetically, double jeopardy was judged to be an anachronistic law that had passed its ‘use by’ date, removal from the Charter does not change its effect on Victorian criminal procedure. It is Section 394 of the Crimes Act 1958 that prevents retrial of anyone acquitted of a crime.

C. “The Department of Justice is currently undertaking a review of the Crimes Act 1958”

This in fact is true. However the only reference to double jeopardy in the review is Section 259(3) of the Criminal Procedure Bill which was introduced into the Victorian Parliament in December 2008. This section relates only to the effect of double jeopardy when one has already been found guilty and there is an appeal to the sentence . Its relevance to the main issues of the perceived problems with the law of double jeopardy is of such insignificance that it wasn’t even mentioned in our four thousand word plus initial request for review of the law.

So, on the face of it, there does not seem to be any justification for the negative response from the VLRC. Of course there may in fact be substantial reasons why our original request should have been denied, but the listing of these three observations by the chief executive hardly supports that.

At the risk of becoming pedantic, perhaps we should analyse what a reason actually is. The reasoning process is effectively a syllogism:

 a formal deductive argument made up of a major premise, a minor premise, and a conclusion. An example is ‘all birds have feathers, penguins are birds, therefore penguins have feathers’.¹

Technically, the reason is only one or more of the premises of the syllogism while the final decision of the tribunal or decision maker is the conclusion, however as the common law states, reasons must detail the “reasoning process” so as to  elucidate how the decision was reached.

All men are mortal, Socrates is a man, therefore...

Thus to simply declare a minor premise in the hope of justifying ones position would be inadequate. Instead one would be obliged to, colloquially speaking, “join the dots” and supply all requisite components for any argument to give the appearance of logical validity.

As a practical case in point, perhaps no better example can be given than by the person in question, Ms Padma Raman herself. In the Commission’s original response to the Crime Victim’s Support Association she declared:

The Commission also resolved to decline your second request (sic) that it undertake research and consultation about the law of double jeopardy as a community law reform project. As you aware (sic), the Commission has detailed criteria concerning selection of Community Law Reform projects which must involve ‘relatively minor legal issues that are of general community concern. The Commission decided that your proposal did not meet a number of the selection criteria.

There we have it. To paraphrase: you requested major reform, if not abolition of the long standing law of double jeopardy as a Community Law Reform project (minor premise); a selection criterion for Community Law Reform projects is that they involve relatively minor legal issues(major premise); your request, being substantial, does not fit the criterion (minor premise); ergo, your request is declined(conclusion).

To quote Justice Ryan from Allen Allen and Hemsley ² “The statement [should] indicate expressly …how the reasoning process took account of that consideration [of criterion] in coming to [its] decision …” On reading Ms Raman’s letter no one could have any doubt as to why the alleged second request, if indeed it had been made, was rejected.

Considering Padma Raman would have been aware of the concept of what a reason actually is if she had read our last letter addressed to her, it is difficult to understand why she should have persisted with the above mentioned quoted paragraph vaguely referring to upcoming general reforms. Was she still trying to give the impression, to quote legal commentator Margaret Allars, of “fair procedure”³ while yet all the time being fully aware of dodging the issue of supplying a reason?

Assuming members of the board of the Victorian Law Reform Commission, including Ms Raman, do not act solely to placate the minister they answer to, Attorney-General Rob Hulls, who has done little to hide his contempt for double jeopardy reform, and assuming they have not taken any personal prejudices they might possess about the law into account, it is difficult to understand why they have been so reticent in voicing their reasons for rejection.

The letter finishes off with the unsolicited comment that she knows no reason why we cannot approach the Attorney-General himself. Well one might think the reason is not that far for her to look. Considering the duties of the Attorney-General, being the chief law officer of the state, are many and varied and probably would not have time to include receiving submissions directly from the public, the VLRC was specifically set up to aid the A-G in law reform, especially with regards to issues that may involve “community concern”. Section 5 (1) (c) of the Victorian Law Reform Commission Act 2000 authorises the VLRC to suggest to the A-G that it may research any topics of law reform. Thus, unless it has legitimate reasons why research into double jeopardy would not be appropriate, it would obviously be when asked, the responsibility of the VLRC to initiate approaches to the Attorney General in this matter.

1  Microsoft® Encarta® Premium Suite 2004. ©
2  Allen Allen & Hemsley v Australian Securities Commission (1992) 27 ALD 296
3  Richardson, G ‘The Duty To Give Reasons: Potential and Practice’ (1986) PUBLIC LAW 437 as cited in Margaret Allars’ Australian Administrative Law: Cases and Commentary (1997) p.213.

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