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Tinkering with our legal traditions

By Michael Bosscher - posted Thursday, 31 August 2006

Two of the long-cherished and traditional cornerstones of our justice system are under threat for purely political reasons.

With Queensland facing a state election on September 9, law and order issues are on the agenda and politicians love to exploit a “get tough on crime” stance for vote-catching purposes.

In recent moves, the Queensland Government is investigating changing the traditional legal rule of double jeopardy, while the state’s Opposition is arguing for Queensland to adopt a system giving jurors the powers to make sentencing recommendations to trial judges.


Both moves are dangerous. Individually and collectively both would seriously erode the foundations of justice.

Tinkering with the 800-year-old double jeopardy rule - which prevents people being tried twice for the same crime - is a formula for disaster. The idea that acquitted people could be tried again for the offence if new and compelling evidence emerged, is merely a shortcut to prosecutors seeking endless re-trials until they achieve the verdict they want.

Assurances that retrials would be on a “one instance only” per case are worthless. Once the traditional rule of double jeopardy is gone, it would be easy to tinker with the law and allow open-ended retrials.

This is what happens when law and order becomes a vote-catching issue. It’s not about a fair system of justice: it’s about what might appeal to the voter.

There is potential for abuse by removing the 800-year-old double jeopardy principle, an idea earlier aired in 2003 and again last year where it was recognised that “modernising” the principle was always fraught with potential risks.

If a person accused of a serious crime is acquitted, they are entitled to have some certainty in their future. The double jeopardy principle gives them that. If you take that away, we could see a situation where the prosecution can’t prove its case, and has another go until they find a decision they like.


While advances in science, especially in DNA technology, mean fresh evidence might become available for previously tried cases, there is an inherent risk to the principles of justice by clearing the way for acquitted people to be charged again for the same offence.

It’s a short distance from there to implementing more changes, allowing additional retrials, all in the name of considering new evidence provided through scientific advances. Where does that place justice for the accused person? If a court acquits them, they should be entitled to get on with their life, not to have the spectre of retrials hang over their heads for the rest of their lives.

Criminal defence lawyers fear that once a long-established rule is changed, it would be easy to change it again down the track. It should not become a signal for lazy policing or a slapdash prosecution in the knowledge you could have another go at the defendant.

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About the Author

Michael Bosscher is managing partner of Brisbane-based national criminal defence law firm Ryan & Bosscher Lawyers.

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