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CRIMINAL CODE (DOUBLE JEOPARDY) AMENDMENT BILL 2007

          Queensland



Criminal Code (Double
Jeopardy) Amendment
Bill 2007

 


 

 

Queensland Criminal Code (Double Jeopardy) Amendment Bill 2007 Contents Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2 Code amended. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 Amendment of s 17 (Former conviction or acquittal) . . . . . . . . . . 4 4 Insertion of new ch 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Chapter 68 Exceptions to double jeopardy rules 678 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 678A Application of ch 68 . . . . . . . . . . . . . . . . . . . . . . . . . . 5 678B Court may order retrial for murder--fresh and compelling evidence . . . . . . . . . . . . . . . . . . . . . . . . . . 6 678C Court may order retrial for 25 year offence--tainted acquittal ................................. 7 678D Fresh and compelling evidence--meaning . . . . . . . . 7 678E Tainted acquittal--meaning . . . . . . . . . . . . . . . . . . . . 8 678F Interests of justice--matters for consideration . . . . . . 9 678G Application for retrial--procedure . . . . . . . . . . . . . . . . 9 678H Retrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 678I Authorisation of police investigations . . . . . . . . . . . . . 11 678J Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 678K Restrictions on publication . . . . . . . . . . . . . . . . . . . . . 13

 


 

 

2007 A Bill for An Act to amend the Criminal Code to provide 2 exceptions to the double jeopardy rules to allow an acquitted person to be retried, and for other purposes

 


 

s1 4 s4 Criminal Code (Double Jeopardy) Amendment Bill 2007 The Parliament of Queensland enacts-- 1 Clause 1 Short title 2 This Act may be cited as the Criminal Code (Double 3 Jeopardy) Amendment Act 2007. 4 Clause 2 Code amended 5 This Act amends the Criminal Code. 6 Clause 3 Amendment of s 17 (Former conviction or acquittal) 7 Section 17-- 8 insert-- 9 `Note-- 10 This section does not apply to the charge mentioned in section 678B 11 (Court may order retrial for murder--fresh and compelling evidence) or 12 678C (Court may order retrial for 25 year offence--tainted acquittal).'. 13 Clause 4 Insertion of new ch 68 14 After section 677-- 15 insert-- 16 `Chapter 68 Exceptions to double jeopardy 17 rules 18 `678 Definitions 19 `(1) In this chapter-- 20 25 year offence means an offence punishable by 21 imprisonment for life or for a period of 25 years or more. 22 acquittal-- 23 (a) includes-- 24

 


 

s4 5 s4 Criminal Code (Double Jeopardy) Amendment Bill 2007 (i) an acquittal in appeal proceedings in relation to an 1 offence; and 2 (ii) an acquittal at the direction of a court; and 3 (iii) a dismissal under section 700 or the Justices Act 4 1886, section 149;1 but 5 (b) does not include-- 6 (i) an acquittal on account of unsoundness of mind 7 under section 647; or 8 (ii) a discontinuance of proceedings under the Mental 9 Health Act 2000, section 281.2 10 administration of justice offence means an offence under 11 chapter 16. 12 Court means the Court of Appeal. 13 fresh and compelling evidence see section 678D. 14 interests of justice see section 678F. 15 tainted acquittal see section 678E. 16 `(2) For the purposes of this chapter, the retrial of an acquitted 17 person for an offence includes a trial if the offence is not the 18 same as the offence of which the person was acquitted. 19 `(3) In this chapter, a reference to the proceedings in which a 20 person was acquitted includes, if they were appeal 21 proceedings, a reference to the earlier proceedings to which 22 the appeal related. 23 `678A Application of ch 68 24 `(1) This chapter applies if, after the commencement of this 25 chapter, a person is acquitted of an offence, whether the 26 offence is committed before or after the commencement of 27 this chapter. 28 1 Justices Act 1886, section 149 (Dismissal of complaint) 2 Mental Health Act 2000, section 281 (Proceedings discontinued--unsound mind)

 


 

s4 6 s4 Criminal Code (Double Jeopardy) Amendment Bill 2007 `(2) However, this chapter does not apply if, in relation to a charge 1 of an offence, although a person is acquitted of the offence as 2 charged, the person is convicted instead of a lesser offence. 3 Examples where this chapter does not apply-- 4 in relation to a charge of the offence of murder, a person is 5 acquitted of murder and convicted instead of manslaughter 6 in relation to a charge of an offence committed with circumstances 7 of aggravation, a person is acquitted of the offence committed with 8 circumstances of aggravation and convicted instead of the offence 9 without any of the circumstances of aggravation 10 `(3) This section extends to a person acquitted in proceedings 11 outside this State of an offence under the law of the place 12 where the proceedings were held. 13 `(4) However, this section does not extend as mentioned in 14 subsection (3) if the law of the place where the proceedings 15 were held does not permit the person to be retried and the 16 application of this chapter to the retrial is inconsistent with the 17 Commonwealth Constitution or a law of the Commonwealth. 18 `678B Court may order retrial for murder--fresh and 19 compelling evidence 20 `(1) The Court may, on the application of the Director of Public 21 Prosecutions, order an acquitted person to be retried for the 22 offence of murder if satisfied that-- 23 (a) there is fresh and compelling evidence against the 24 acquitted person in relation to the offence; and 25 (b) in all the circumstances it is in the interests of justice for 26 the order to be made. 27 `(2) The Court may order a person to be retried for the offence of 28 murder under this section even if the person had been charged 29 with and acquitted of a lesser offence. 30 `(3) If the Court orders an acquitted person to be retried for the 31 offence of murder, the Court must quash the person's acquittal 32 or remove the acquittal as a bar to the person being retried. 33 `(4) On the retrial, section 17 does not apply in relation to the 34 charge of the offence of murder. 35

 


 

s4 7 s4 Criminal Code (Double Jeopardy) Amendment Bill 2007 `678C Court may order retrial for 25 year offence--tainted 1 acquittal 2 `(1) The Court may, on the application of the Director of Public 3 Prosecutions, order an acquitted person to be retried for a 25 4 year offence if satisfied that-- 5 (a) the acquittal is a tainted acquittal; and 6 (b) in all the circumstances it is in the interests of justice for 7 the order to be made. 8 `(2) The Court may order a person to be retried for a 25 year 9 offence under this section even if the person had been charged 10 with and acquitted of a lesser offence. 11 `(3) If the Court orders an acquitted person to be retried for a 25 12 year offence, the Court must quash the person's acquittal or 13 remove the acquittal as a bar to the person being retried. 14 `(4) On the retrial, section 17 does not apply in relation to the 15 charge of the 25 year offence. 16 `678D Fresh and compelling evidence--meaning 17 `(1) This section applies for the purpose of deciding under this 18 chapter whether there is fresh and compelling evidence 19 against an acquitted person in relation to the offence of 20 murder. 21 `(2) Evidence is fresh if-- 22 (a) it was not adduced in the proceedings in which the 23 person was acquitted; and 24 (b) it could not have been adduced in those proceedings 25 with the exercise of reasonable diligence. 26 `(3) Evidence is compelling if-- 27 (a) it is reliable; and 28 (b) it is substantial; and 29 (c) in the context of the issues in dispute in the proceedings 30 in which the person was acquitted, it is highly probative 31 of the case against the acquitted person. 32

 


 

s4 8 s4 Criminal Code (Double Jeopardy) Amendment Bill 2007 `(4) Evidence that would be admissible on a retrial under this 1 chapter is not precluded from being fresh and compelling 2 evidence merely because it would have been inadmissible in 3 the earlier proceedings against the acquitted person. 4 `678E Tainted acquittal--meaning 5 `(1) This section applies for the purpose of deciding under this 6 chapter whether the acquittal of an accused person is a tainted 7 acquittal. 8 `(2) An acquittal is tainted if-- 9 (a) the accused person or another person has been convicted 10 in this State or elsewhere of an administration of justice 11 offence in relation to the proceedings in which the 12 accused person was acquitted; and 13 (b) it is more likely than not that, but for the commission of 14 the administration of justice offence, the accused person 15 would have been convicted. 16 `(3) An acquittal is not a tainted acquittal during any of the 17 following periods-- 18 (a) the period provided under section 671(1) for the person 19 convicted of the administration of justice offence (the 20 convicted person) to appeal, or obtain leave to appeal, 21 from the conviction; 22 (b) if, within the period mentioned in paragraph (a), the 23 convicted person gives notice of an appeal--the period 24 ending when the appeal is decided; 25 (c) if, within the period mentioned in paragraph (a), the 26 convicted person gives notice of an application for leave 27 to appeal, the period ending-- 28 (i) if the application is refused--when the decision 29 refusing the application is made; or 30 (ii) if the application is granted--when the appeal is 31 decided. 32 Note-- 33 Section 668D provides the right of appeal. 34

 


 

s4 9 s4 Criminal Code (Double Jeopardy) Amendment Bill 2007 `(4) If the conviction for the administration of justice offence is, 1 on appeal, quashed after the Court has ordered the acquitted 2 person to be retried under this chapter because of the 3 conviction, the person may apply to the Court to set aside the 4 order and-- 5 (a) restore the acquittal that was quashed; or 6 (b) restore the acquittal as a bar to the person being retried 7 for the offence. 8 `678F Interests of justice--matters for consideration 9 `(1) This section applies for the purpose of deciding under this 10 chapter whether it is in the interests of justice for an order to 11 be made for the retrial of an acquitted person. 12 `(2) It is not in the interests of justice to make an order for the 13 retrial of an acquitted person unless the Court is satisfied that 14 a fair retrial is likely in the circumstances. 15 `(3) The Court must have regard in particular to-- 16 (a) the length of time since the acquitted person allegedly 17 committed the offence; and 18 (b) whether any police officer or prosecutor has failed to act 19 with reasonable diligence or expedition in relation to-- 20 (i) the investigation of the commission of the offence 21 of which the person was acquitted and the 22 prosecution of the proceedings in which the person 23 was acquitted; and 24 (ii) the application for the retrial of the acquitted 25 person. 26 `678G Application for retrial--procedure 27 `(1) If a person has been acquitted, not more than 1 application for 28 the retrial of the person may be made under this chapter in 29 relation to the acquittal. 30 `(2) If the acquittal results from a retrial under this chapter-- 31

 


 

s4 10 s4 Criminal Code (Double Jeopardy) Amendment Bill 2007 (a) an application may not be made for an order under 1 section 678B in relation to the acquittal; but 2 (b) an application may be made for an order under section 3 678C in relation to the acquittal. 4 `(3) An application for the retrial of an acquitted person may not 5 be made under this chapter unless-- 6 (a) the person has been charged with the offence for which 7 the retrial is sought (the relevant offence); or 8 (b) a warrant has been issued for the person's arrest in 9 relation to the relevant offence. 10 `(4) The application must be made not later than 28 days after the 11 person is charged with the relevant offence or the warrant is 12 issued for the person's arrest in relation to the relevant 13 offence. 14 `(5) The Court may extend the period mentioned in subsection (4) 15 for good cause. 16 `(6) The Court must consider the application at a hearing. 17 `(7) The person to whom the application relates is entitled to be 18 present and heard at the hearing, whether or not the person is 19 in custody. 20 `(8) However, if the person has been given a reasonable 21 opportunity to be present, the application may be decided 22 even if the person is not present. 23 `(9) The powers of the Court mentioned in section 671B(1) may 24 be exercised in relation to the hearing of the application. 25 `(10) The Court may at 1 hearing consider more than 1 application 26 under this chapter for a retrial (whether or not relating to the 27 same person), but only if the offences concerned may be tried 28 on the same indictment. 29 `(11) If the Court decides in proceedings on an application under 30 this chapter that the acquittal is not a bar to the person being 31 retried for the offence concerned, it must make a declaration 32 to that effect. 33

 


 

s4 11 s4 Criminal Code (Double Jeopardy) Amendment Bill 2007 `678H Retrial 1 `(1) An indictment for the retrial of a person that has been ordered 2 under this chapter may not, without the leave of the Court, be 3 presented after the end of the period of 2 months after the 4 order was made. 5 `(2) The Court may give leave only if it is satisfied that-- 6 (a) the prosecutor has acted with reasonable expedition; and 7 (b) there is good and sufficient reason for the retrial despite 8 the lapse of time since the order was made. 9 `(3) If, after the end of the period of 2 months after an order for the 10 retrial of an accused person was made under this chapter, an 11 indictment for the retrial of the person has not been presented 12 or has been withdrawn or quashed, the person may apply to 13 the Court to set aside the order for the retrial and-- 14 (a) restore the acquittal that was quashed; or 15 (b) restore the acquittal as a bar to the person being tried for 16 the offence. 17 `(4) If the order is set aside, a further application may not be made 18 under this chapter for the retrial of the accused person in 19 relation to the offence concerned. 20 `(5) At the retrial of an accused person, the prosecution is not 21 entitled to refer to the fact that the Court has found that it 22 appears that-- 23 (a) there is fresh and compelling evidence against the 24 acquitted person; or 25 (b) more likely than not, but for the commission of the 26 administration of justice offence, the accused person 27 would have been convicted. 28 `678I Authorisation of police investigations 29 `(1) This section applies to any police investigation of the 30 commission of an offence by an acquitted person in relation to 31 the possible retrial of the person for the offence under this 32 chapter. 33

 


 

s4 12 s4 Criminal Code (Double Jeopardy) Amendment Bill 2007 `(2) For the purposes of this section, a police investigation is an 1 investigation that involves, whether with or without the 2 consent of the acquitted person-- 3 (a) any arrest, questioning or search of the acquitted person, 4 or the issue of a warrant for the arrest of the person; or 5 (b) any forensic procedure carried out on the person or any 6 search or seizure of premises or property of or occupied 7 by the person. 8 `(3) A police officer may carry out or authorise a police 9 investigation to which this section applies only if the Director 10 of Public Prosecutions-- 11 (a) has advised that, in the opinion of the Director of Public 12 Prosecutions, the acquittal would not be a bar to the 13 retrial of the acquitted person in this State for the 14 offence; or 15 (b) has given written consent to the police investigation on 16 the application in writing of the commissioner, or a 17 deputy commissioner, of the police service. 18 `(4) The commissioner, or a deputy commissioner, of the police 19 service may make an application for the police investigation 20 only if satisfied that relevant evidence for the purposes of an 21 application for a retrial under this chapter-- 22 (a) has been obtained; or 23 (b) is likely to be obtained as a result of the investigation. 24 `(5) The Director of Public Prosecutions may give consent to the 25 police investigation only if satisfied that-- 26 (a) there is, or there is likely as a result of the investigation 27 to be, sufficient new evidence to warrant the conduct of 28 the investigation; and 29 (b) it is in the public interest for the investigation to 30 proceed. 31 `(6) Despite the Police Service Administration Act 1990, section 32 4.10, the commissioner of the police service may not delegate 33 powers of the commissioner under this section to a police 34 officer or staff member. 35

 


 

s4 13 s4 Criminal Code (Double Jeopardy) Amendment Bill 2007 `678J Bail 1 `(1) This section has effect despite anything to the contrary in the 2 Bail Act 1980. 3 `(2) There is a presumption in favour of bail for a person who is 4 charged with an offence for which a retrial is sought under 5 this chapter until the application for the retrial is dealt with. 6 `678K Restrictions on publication 7 `(1) A person must not publish any matter for the purpose of 8 identifying or having the effect of identifying an acquitted 9 person who is being retried under this chapter or who is the 10 subject of-- 11 (a) a police investigation, or an application for a police 12 investigation, mentioned in section 678I; or 13 (b) an application for a retrial, or an order for retrial, under 14 this chapter. 15 `(2) Subsection (1) does not apply if the publication is authorised 16 by order of the Court or of the court before which the 17 acquitted person is being retried. 18 `(3) The relevant court may make an order authorising publication 19 only if the court is satisfied that it is in the interests of justice 20 to make the order. 21 `(4) Before making an order under this section, the relevant court 22 must give the acquitted person a reasonable opportunity to be 23 heard on the application for the order. 24 `(5) The relevant court may at any time vary or revoke an order 25 under this section. 26 `(6) The prohibition on publication under this section ceases to 27 have effect, subject to any order under this section, when the 28 first of the following paragraphs apply-- 29 (a) there is no longer any step that could be taken which 30 would lead to the acquitted person being retried under 31 this chapter; 32 (b) if the acquitted person is retried under this chapter--the 33 trial ends. 34

 


 

s4 14 s4 Criminal Code (Double Jeopardy) Amendment Bill 2007 `(7) Nothing in this section affects any prohibition of the 1 publication of any matter under any other Act or law. 2 `(8) A contravention of a prohibition on publication under this 3 section is punishable as contempt of the Supreme Court.'. 4

 


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