New Evidence and the Double Jeopardy
A few years ago, Queensland Police re-charged a man with murder, having been acquitted of the same murder in 1987. It’s a huge test of the 2014 laws bought in by the (then) Newman government. It’s not all plain sailing; chapter 68 (exceptions to double jeopardy) of the Criminal Code Act 1899 allows for the court to consider whether the man can be retried. It’s not a given.
In common law, under the procedural rules of double jeopardy, a person cannot be tried on the same charges and on the same facts, following a valid acquittal or conviction. Once acquitted of the crime, that was it. However modern times brings new investigative techniques and opportunities for new evidence. Evidence that was not there before, like DNA.
It’s common sense, really.
It works both ways too. Innocence projects all over the world take cases on for those who have been, allegedly, wrongfully convicted. New witnesses, modern forensic evidence techniques, even identification of procedural mistakes, can cast a new light on findings of guilt, and acquittals. Australian private investigators often do the work needed to uncover additional facts or evidence missed in the original investigation.
Criminal defence services provided by professional investigators can be a cost effective way to gather new evidence to put before the court, or to prosecutors. After all, those types of competent investigators are usually ex-detectives. They know what to look for, how to talk to people and can see the holes and gaps in the briefs.
Thankfully though – on both sides of the equation – there is a wide range of rules relating to any consideration for re-trial, or even pre-trial. In the case of the exceptions to double jeopardy, there needs to be “fresh and compelling evidence” against the acquitted person, not just new evidence that was already adduced during their original trial. The act is quite strict in terms of the investigation and charging of those acquitted. The detectives cannot get a new statement from a person and then lock up the original crook. It’s just not that simple.
Similarly with criminal defence investigations, identification of new evidence, statements of people who previously haven’t spoken and the introduction of “exculpatory” evidence can mean the difference between wrongful conviction and acquittal. Unfortunately, police don’t always present this type of evidence (Exculpatory – evidence favourable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt) particularly if it’s going to harm their case.
All in all, justice prevails, which is good news for both the victim’s families and society as a whole. The mere fact that someone has been charged, convicted (or now even acquitted) of a crime doesn’t necessarily mean the end.
There’s always another side to the story.