What is double jeopardy?

Double jeopardy: the prosecution or punishment of a person twice for the same offence.

Alison and Jillian Barrett, Sydney Morning Herald

The term ‘double jeopardy’ was made famous by 1999, the film , but what does it actually mean in the context of Australian law?

A double jeopardy clause provides protection against an individual from being prosecuted twice for the same offence. Double jeopardy applies only in criminal court cases; it does not prevent defendants from being sued in civil court over the same offence.

Why does the double jeopardy clause exist?

The double jeopardy rule is an important protection for individuals against the abuse of state power. Once a defendant has been charged, they cannot be retried for the same offence on the basis of new evidence, no matter how damning that evidence may be.

There are quite a few reasons the double jeopardy clause exists; however, some of the more significant reasons include:

  • To preserve the finality of criminal proceedings, which would otherwise be compromised if the government were allowed to ignore verdicts that they were not in favour of;
  • To impose limits on prosecutors’ power; and
  • To protect individuals from the financial and emotional toll of repeated prosecutions.

In most situations, if a defendant has already served their punishment, they cannot be re-sentenced.

What are the exceptions to double jeopardy or when does it not apply?

Now, like nearly all law, there are some exceptions to the rule where a defendant could be re-investigated. These are, however, exceptions; in other words, a few rare instances where this rule may not apply. These include:

  • There must be new or fresh and compelling evidence (for example, it must not have been presented in the previous proceeding and not have been available with reasonable diligence – such as DNA)
  • It must be a serious offence (such as murder or rape).
  • In all the circumstances, it is in the interests of justice for the order to be made.

As well as this, while double jeopardy prohibits different prosecutions for the same offence, it does not protect defendants from multiple prosecutions for multiple offences.

Another example would be where the defendant has been charged, but the prosecution decides to drop the charges before it has reached a stage of official proceedings. The prosecution can choose to re-file the case on the same charges because the “jeopardy” has not been attached/finalised. The same applies for when there is a hung jury; where they cannot reach a guilty or not guilty verdict. The prosecutor has a right to a second trial without violating the double jeopardy clause.

More information

The right not to be re-prosecuted for the same crime is an important constitutional protection, and it could keep you out of jail. With that said, this is a complex area of criminal law and is one that you should speak to a leading criminal defence solicitor about.

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