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Double Jeopardy in Criminal Law

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Double jeopardy in criminal law is a legal principle that prevents a person from being tried again for the same offense after they have already been acquitted or convicted.

In Australia, double jeopardy laws have evolved over time, and significant reforms have been made to strike a balance between protecting the rights of the accused and ensuring justice is served.

When someone is prosecuted or punished twice for the same legal acts or legal matter, it’s known as double jeopardy.

For instance, in Australia, it is a defence that a defendant cannot be charged with the same offence twice if they have previous prosecution appeals, found guilty, or found not guilty after an indictment.

Double Jeopardy in Australia

In recent years, Australia has undergone significant legal reforms to address perceived injustices resulting from the traditional application of double jeopardy. The most notable reform is the introduction of the “double jeopardy” legislation in several Australian states and territories. These laws allow for the retrial of a person in cases where new and compelling evidence has emerged, suggesting their guilt for the crime.

In Australia, the term “double jeopardy” is exclusively used in criminal court proceedings. An accused individual who has previously been tried for a certain act and found guilty or not guilty upon indictment is not eligible to be charged with the same offence again, according to Section 17 of the Criminal Code Act.

This rule was created to make sure that people who were found not guilty of a crime would not be questioned by the police or faced charges for the same crime in the future. It should be acceptable for the accused to believe that their case has been resolved.

Australian Laws Surrounding Double Jeopardy Rule

The Crimes (Appeal and Review) Act 2001 (the “Act”) has been amended in New South Wales, enabling the Court of Criminal Appeal (NSWCCA) to order a retrial of certain acquitted individuals upon request from the Director of Public Prosecutions (the “DPP”) in cases where “fresh and compelling evidence” is present.

The Crimes (Appeal and review) act 2001

Section 100(1) of the Act urges the NSWCCA to ‘order an acquitted person to be retried for a life sentence criminal offence if satisfied that:

  • there is fresh and compelling evidence against the acquitted person in relation to the criminal offence, and
  • in all the circumstances it is in the interests of justice for the order to be made’.

Life sentence criminal offences include murder, large commercial drug supply, aggravated sexual assault in company, sexual intercourse with a child under 10 and several terrorism offences.

Section 100 makes it clear the provisions extend to situations where the convicted has been charged with, and acquitted of, manslaughter, but not where a person was charged with murder and then convicted of manslaughter or other serious offences.

The Double JeopaRdy Rule

This Rule against double jeopardy (the Rule) has its genesis in three related principles of legal theory:

The ancient doctrines of autrefois acquit and convict. The Autrefois principles were a complete defence to any fresh charge.

The Rule that a person should not be tried for a second time on substantially the same facts; and

That the Court can act to prevent prosecution if the result is an unfair trial.

Exceptions To Double Jeopardy In Australia

The general exceptions to the Rule of double jeopardy in NSW are;

  • There must be new/fresh and compelling evidence against the accused person,
  • It must be a life sentence offence (NSW), and
  • In all the circumstances, it is in the interests of the criminal justice system for the order to be made.

While most crimes in Australia are subject to double jeopardy, the Criminal Code (Double Jeopardy) Amendment Act of 2007 makes certain changes to this decision which may affect criminal procedure.

As previously stated, in NSW courts, if the Court is convinced that there is new and compelling evidence against the acquitted individual in relation to the offence and that, under all circumstances, the order is in the interest of justice, it may, under Section 678B, order the acquitted person, who is guilty of the criminal offences, to be retried for the murder offence and criminal proceedings.

Section 678D outlines the meaning of ‘fresh and compelling evidence as:

“Evidence is “fresh” if—
(a) it was not adduced in the proceedings in which the person was acquitted; and
(b) it could not have been adduced in those proceedings with the exercise of reasonable diligence.

Evidence is “compelling” if—
(a) it is reliable; and
(b) it is substantial; and
(c) in the context of the issues in dispute in the proceedings in which the person was acquitted, it is highly probative of the case against the acquitted person.

If the court is convinced that a tainted acquittal is enduring the criminal proceedings, and that it would be in the best interests of the criminal justice process under all circumstances, it may, under Section 678C, order that the acquitted individual be retried for a 25-year offence.

Case Law on Double Jeopardy: R v Carroll (2002) 213 CLR 635


A 17-month-old infant who had been sexually molested was discovered dead in 1973 on the roof of a park lavatory, clothed in women’s knickers. The man who committed the alleged offence was twice pronounced guilty, but thanks to successful appeals based on legal technicalities and the concept of double jeopardy, he was declared innocent. There was no double jeopardy exception in place at the time (2002–03). But according to the 2007 revisions, if there is new and strong evidence—in this case, DNA and forensic evidence—that may not have existed at the time of the original crime, violent crimes like murder could be retried.

A jury found the accused person guilty 12 years after he entered a not guilty plea to the charge. The leg’s bite mark evidence played a part in this.

The accused person, Carrol was indicted for perjury more than 14 years after his murder trial. He was found guilty of perjury, but the conviction was overturned on appeal to the High Court. Double jeopardy was the cause of this.

This was the most serious crime that made Australia reconsider the application of the double jeopardy law towards criminal proceedings.


The court ruled that the defence of autrefois acquittal or double jeopardy is available against a charge. It is predicated on the claim that the defendant was previously found not guilty of the same offence based on the same circumstances.


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