TRUTH OR JUSTICE ? DOUBLE JEOPARDY REFORM FOR QUEENSLAND : RIGHTS IN JEOPARDY

This paper discusses proposed reforms to double jeopardy contained within the Criminal Code (Double Jeopardy) Amendment Bill 2007 (Qld) which is likely to be passed by Queensland’s parliament later this year. The paper argues that the development of double jeopardy rules and the reform debate has been muddied by doctrinal confusion over whether double jeopardy is primarily a procedural right for the protection of accused individuals or a procedural rule to protect the institutional integrity of judicial outcomes. The paper critically examines the underlying rationales for double jeopardy protections along with arguments in support of the proposed reforms. The discussion of the proposed Queensland provisions takes place with regard to similar reforms that have been recently implemented in the UK and NSW and which are planned for New Zealand. The rule against double jeopardy has traditionally been thought of as a hallowed canon of the common law, a golden rule which sits at the heart of all English common law systems. Double jeopardy is revered as a principle ‘vital to the protection of personal freedom’. It is claimed that the rule underpins the legitimacy of the legal system because it recognises the incontrovertibility of verdicts, which are transformed, via the declared judgment, into a record of a ‘higher nature‘. Later this year, the Criminal Code (Double Jeopardy) Amendment Bill 2007 (the Bill) will pass into law in Queensland. Queensland will thereby become the second * Lecturer, Griffith Law School, Griffith University. 1 Lord Justice Auld, ‘Chapter 12 – Appeals’, Review of the Criminal Courts of England and Wales, (2001) [50],  at 18 July 2007; Davern v Messel (1983) 155 CLR 21, 62 (Murphy J). 2 (1983) 155 CLR 21, 62 (Murphy J). 3 Pearce v R (1988) 194 CLR 610, 625 (Gummow J). Gummow J notes that this principle is expressed in the Latin maxim: transit in rem judicata. See also Rogers v R (1994) 181 CLR 251, 273 (Deane and Gaudron JJ). 4 The Legislative Assembly of Queensland’s Notice Paper for 7 August 2007, 5, lists the Bill on the General Business agenda for this 52 sitting of Parliament.

The Bill creates two classes of exceptions to the ancient common law principle of double jeopardy.That principle provides, broadly speaking, that no person should be twice placed in jeopardy of conviction or punishment for the same offence. 6The principle gives rise to a rule that, once convicted or acquitted, an accused person is immune from further prosecution for that offence, or for a different offence covering the same factual elements. 7e first exception to the principle of double jeopardy under the Bill will allow someone acquitted of murder to be retried for murder if, after their acquittal, 'fresh and compelling evidence' of the person's guilt emerges. 8The second exception applies to offences involving a maximum penalty of 25 years or more imprisonment, where an acquittal is 'tainted' because of the commission of an 'administration of justice offence'. 9'Administration of justice offences' include offences which are directed at undermining the integrity of the trial process, such as perjury and witness tampering. 10he 'tainted acquittals' exception is available only if, but for the administration of justice offence, the accused would probably have been convicted at the original trial. 11e debate surrounding double jeopardy reform centres around two propositions, both held by proponents to be of cardinal importance.The first is that a guilty offender should not be able to escape punishment for a serious crime.If an acquittal is found to have been wrongful, the inaccuracy should be rectified.To the extent that the criminal justice system fails to correct known errors, its legitimacy is impaired. 12The second proposition is that society as a whole, and especially the State, must, after lawful avenues of appeal are exhausted, accept an acquittal as inconvertibly correct.The legitimacy of the criminal justice system requires that final judgments of the court be accepted as final. 13DGELEY (2007)   The debate therefore reveals a tension between the two values most fundamental to the criminal justice system's claim to legitimacy: truth and justice.A generation ago, Lord Wilberforce explained that: [a]ny determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that conclusion, it closes the book.The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty, and security, it prevents further inquiry.It is said that in doing this, the law is preferring justice to truth.That may be so: these values cannot always coincide.The law does its best to reduce the gaps.But there are cases where the certainty of justice prevails over the possibility of truth…and these are cases where the law insists on finality. 14 Corns explains the matter this way: [t]here is some authority for the proposition that the system (or institutional) requirements (for example, for finality) outweigh the search for what might be the "objective truth".
Here lies perhaps the fundamental ideological tension behind the question of retrials.That is, criminal proceedings under an adversarial system are not a search for the objective truth behind the allegations.Rather, the proceedings (specifically the trial) are designed to provide a fair and efficient process to determine whether the prosecution is able to satisfy the burden of proving all the elements of the particular offence.In this sense, the primary interests being protected are those of the accused who is (rightly) presumed innocent.This ideology prevails over any public interest in securing the conviction and punishment of guilty persons. 15us there exists a structural tension between the idea that criminal proceedings are designed to determine the objective truth about particular events and the competing notion that justice requires that verdicts be treated as inviolable. 16However there is a further tension which remains largely unacknowledged -that is the tension between the idea that the protection against double jeopardy is a personal right designed to protect individuals and the idea that double jeopardy is a procedural mechanism which protects the institutional integrity of the judicial system. 17The tension is discernible in the subtly divergent views of Lord Wilberforce and Dr Corns quoted above.The former emphasises institutional and social values: "peace, certainty and security".The latter emphasises the primary role of protection of the individual accused; in this conception the collective interest comes second.
Most commentators treat these two separate justifications as complementary, insofar as they seem to provide cumulative reasons to support the retention of double jeopardy 14 The Ampthill Peerage [1977] AC 547, 569.Truth or justice?Double jeopardy reform for Queensland: Rights in jeopardy rules. 18However, these doctrinally distinct issues may not necessarily be complementary.Confusion about the underlying purpose of the rules may have contributed to the notorious profusion of technicalities that has characterised double jeopardy rules until quite recently. 19Arguably, the same doctrinal confusion continues to muddy the debate about double jeopardy reform.This paper will consider Queensland's double jeopardy reforms in the context of these tensions.Part One will commence with a discussion of the historical development of the principle, with emphasis on the question of whether double jeopardy evolved as a protective right or as a bulwark of institutional integrity.The current manifestations of double jeopardy within the criminal justice system will be discussed, including the application of various legal rules and, more flexibly, the use of double jeopardy as a principle to inform discretionary decision-making.Part One will conclude with a discussion of the key justifications for the existence and retention of strong double jeopardy protections within the criminal justice system.
Part Two will consider the background to double jeopardy reform in Queensland, including the catalytic Carroll case. 20The reform programs in other jurisdictions will be considered including the United Kingdom, New Zealand and New South Wales.
Part Three will present the arguments in favour of the proposed reforms.The scheme of double jeopardy exceptions under the Queensland Bill will then be outlined with special reference to putative safeguards.
It will be concluded that, although double jeopardy lacks the force in Australia of a fully formed constitutional right, a cautious approach should be taken to whittling away longevolved process protections.Reforms that respond to problems of perceived injustice in particular cases may seem superficially attractive, but changes are preferable when they cohere within the fundamentally normative scheme of the criminal justice system. 21

I DOUBLE JEOPARDY & THE ANGLO-AUSTRALIAN CRIMINAL JUSTICE SYSTEM A Historical Background
The ancient origins of the law of double jeopardy are shrouded in the mists of time. 22ustice Kirby believes that, like many legal norms, the principle may have biblical origins. 23He traces the principle to an Old Testament passage which promises that: 'affliction shall not rise up the second time'.This text has been interpreted by scholars as support for the canonical maxim: 'not even God judges twice for the same act'. 24cient Greece is another possible point of origin.Historians have discovered the rule in ancient case law: 'the laws forbid the same man to be tried twice on the same issue, be it a civil action, a scrutiny, a contested claim or anything else of that sort'. 25ere seems to be broader acceptance for Roman Law as the likely origin of double jeopardy. 26The Digest of Justinian mandated that 'the Governor should not permit the same person to be again accused of a crime of which he has been acquitted'. 27The prescription was not absolute -the informer could bring another prosecution, but only within 30 days of the acquittal. 28Sigler cautions against assuming that the principle carried protective force in Roman law.In his view, the concept of rights was 'still primitive' and criminal procedure patterns much more informal. 29storians believe that double jeopardy may have been imported into English law along with the Roman doctrine of res judicata. 30The import may have eventuated as a factor of the pervasive nature of Roman Law or it may have percolated indirectly into English law via Canon Law, which rose to greater prominence after the Norman conquest of England in 1066. 31Indeed, the defining tools of the double jeopardy principle -the pleas of autrefois convict and autrefois acquit -are still expressed today in Norman French. 32atever the precise early provenance of the principle, it is clear that by the twelfth century, an early but limited version of the principle was in use in England. 33Under William I, ecclesiastical courts had flourished, growing alongside secular courts, but with distinct jurisdictional bases.The Church's revenue base became an important source of tension during the reign of Henry II.He sought to improve that base by restoring the jurisdiction of secular courts over clergy who committed secular crimes.Hunter, above n 22, 5. Hunter notes that death and forfeiture of all property to the Crown was the usual form of punishment for felonies.Fines were standard for breaches of the King's peace.Both were an important source of Crown revenue: Ibid, 5-6.The records show that the pleas of autrefois acquit and autrefois convict were in somewhat regular use by the thirteenth century. 37However it is by no means obvious that the pleas, whether imported or evolved, existed to protect the rights of the accused. 38Certainly, no mention of double jeopardy principles appear in the Magna Carta, either expressly or by implication. 39Hunter notes that criminal justice in Norman England was 'bereft of individual rights or democratic ideals'. 40Instead, she argues that the notion of double jeopardy as an ancient principle developed to protect individual rights is misconceived. 41The rule, in its early form, was merely procedural, which, given the prevalence of private prosecutions, was most likely developed to protect judicial time and resources from repeated prosecutions pursued for improper motives. 42he judiciary's attitude to the impact of this abusive practice on hapless defendants was, in Hunter's view, most likely, ambivalence. 43 contrast, Sigler argues that double jeopardy was probably developed for the protection of individuals.He acknowledges that double jeopardy was not considered fundamental.The principle was not mentioned in the Assize of Clarendon of 1166, nor in the Bill of Rights of 1689, nor in any of the early English statutes.Sigler explains that there was no real divide between criminal and civil law until the fourteenth century; even then, the separation developed slowly. 44Moreover, most crime was 'prosecuted' by affected persons, usually to obtain monetary damages. 45However, Sigler points out that when punishment was inflicted, it frequently included mutilation or death.Individuals facing prosecution were thus literally at risk of life and limb. 46Additionally, as the power of the State grew, its role as prosecutor of crime became more important; simultaneously, the number of crimes grew and punishments became more severe. 47oreover, the introduction of a new prosecutorial procedure, the indictment, gave rise to a real risk of an accused being prosecuted privately by the ancient appeal procedure and again by the State on indictment. 48 emerged as a protective doctrine, albeit one riddled with exceptions and rooted in antiquated procedures and technical rules of pleading. 49 the sixteenth century, the principle of double jeopardy seems to have firmed into a settled tenet of the common law. 50The first legal text to describe the pleas in detail, Les Plees Del Coron by Staunford, was published in 1557. 51The maxim underpinning the pleas appears in Sparry's Case in 1589: nemo debet bis vexari pro una et eadem causa (a man shall not be twice vexed for one and the same cause). 52wever, the plea of autrefois acquit had quite wide exceptions, allowing for further vexation in numerous circumstances.The plea applied only to an acquittal on the merits; it was not available for an acquittal based on a pleading defect or other error of law. 53There were also geographic exceptions.For example, one statutory exception allowed a second prosecution in England for offences committed and prosecuted in Wales. 54This exception was presumed to arise because the Welsh could not be trusted to vigorously prosecute their own criminals. 55Another statutory exception, which endured from 1487 -1819, allowed private prosecution of homicide to follow within a year and one day of a Crown prosecution, regardless of whether the outcome at the first trial was conviction or acquittal. 56nter argues that, although the double jeopardy rules were 'slowly achieving significance', they were not at that time considered to be fundamental to personal liberty and certainly not the cornerstone of English justice, as some have claimed. 57gler argues that the protective aspects of double jeopardy, limited as they were, evolved initially to protect an accused from repeated private prosecutions, rather than from repeated State prosecution. 58The latter purpose, appeared later, around the fifteenth century, and it was another century before double jeopardy emerged as a doctrine directed at diminishing 'the danger of governmental tyranny through repeated prosecutions for the same crime'. 59wever, one can see, even in the way the early maxims are expressed, some degree of concern for the individual accused.The direct references to vexation of the accused in the early Latin maxims suggests a desire to protect the accused from oppressive reprosecution.Similarly, the term 'double jeopardy' refers to the personal jeopardy faced by the accused.Justice Kirby acknowledges that a prior prosecution in the late medieval period did not attach to the accused as a strict protection. 60During this period Vol 7 No 1 (QUTLJJ) Truth or justice?Double jeopardy reform for Queensland: Rights in jeopardy of growth in the primacy of the State, he contends that nonetheless, the underlying rationale for the pleas was the avoidance of vexation; in other words, the central concern of double jeopardy rules was to protect the accused individual from oppression and misuse of State power. 61 the 1700s the principle of double jeopardy had firmed into its modern form.Sir William Blackstone referred to the 'universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.' 62That maxim was incorporated into the Fifth Amendment of the United States Constitution in 1789 as part of the Bill of Rights: 'nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb'. 63The American constitutional conception of double jeopardy was declaratory of the law as the framers understood it to apply in England. 64Certainly, the US constitutional version of double jeopardy was a faithful contemporary reflection of the maxims employed in England.But the very act of incorporating the principle into constitutional form altered its essential nature, transforming it into a right.In England, although protective in nature, the maxims remained related to technical rules of pleading and, in many circumstances, had little more protective force than a bare slogan. 65e modern form of the principle had thus emerged.It applied to protect an acquitted or convicted person from reprosecution for the same crime or a crime that was in substance the same. 66Blackstone described the scope of protection: [T]he pleas of autrefois acquit and autrefois convict … must be upon a prosecution for the same identical act and crime, or for such a charge as that, by statute or otherwise, the defendant might have been convicted upon it of the identical act and crime subsequently charged against him. 67iginally the pleas had applied strictly to acquittal or conviction for precisely the same felony.But by the end of the eighteenth century, perhaps because of the proliferation of statutory offences, the courts were more inclined to look beyond the record to consider what had been, in substance, the factual gravamen of the prior verdict. 68is was the law relating to double jeopardy, as received into Australia. 69nternationally, the principle of double jeopardy grew in importance as an increasing number of States recognised its significance by transforming the rule into a guarantee.

B Modern Scope of Double Jeopardy
For most of the twentieth century, the rules relating to double jeopardy were regarded as 'unbelievably complex'. 73Recently, the High Court has made significant refinements to the rules, which have had the convenient effect of simplifying the doctrine. 74is section of the paper summarises the applicable double jeopardy rules with particular emphasis on preventing a second prosecution.
1 Prosecution for the same offence Most obviously, a person who has already been acquitted or convicted cannot be reprosecuted subsequently on an identical charge. 75This is the classic and straightforward case where the pleas, autrefois acquit and autrefois convict would be applicable.The former acquittal has protective effect at common law because the acquittal has passed into judgment; it is res judicata. 76The latter plea is based on the doctrine of merger.The subsequent charge cannot be dealt with because it has merged in the earlier judgment. 77ere is a limited, but important statutory exception to this straightforward common law rule.That exception relates to appeals, which are a statutory remedy. 78A successful appeal against conviction might, under statute, result in a retrial. 79That result would not be possible under common law because the plea of autrefois convict would bar the retrial. 80In Queensland, this exception exists exclusively for the benefit of convicted persons.The prosecution does not generally enjoy equivalent statutory rights to appeal against acquittals; 82 and a statute will not be interpreted as conferring such a right unless it expresses a clear intention to do so. 83The well-known common law rule of interpretation applies -a statute will not be interpreted as infringing the rights and liberties of the subject unless clear and unambiguous words are used. 84However, the High Court's defence of the principle is qualified. 85Although a jury acquittal is effective at common law to prevent further litigation of the charge by the prosecution, an acquittal ordered by a Court of Appeal does not achieve protective finality until any further rights of appeal have been exhausted. 86A conviction set aside on erroneous legal grounds can therefore be restored by a higher court. 87Prosecution for substantially the same offence The pleas of autrefois acquit and autrefois convict might also apply, in limited circumstances, to protect an individual from a second prosecution for a different charge arising from the same facts.This application of double jeopardy is potentially of very broad scope because, with the proliferation of statutory offences, a single factual scenario can give rise to several different offences. 88There has been considerable uncertainty about the precise ambit of this aspect of double jeopardy. 89It has been variously described as applying to successive but different charges which are 'in substance the same', 90 where 'the fact prosecuted is the same in both, though the offences differ in colour and degree' 91 or simply to offences based on 'the same fact'. 92 Pearce, 93 the High Court clarified the issue.In that case an indictment was presented charging the accused, under s 33 of the Crimes Act 1900 (NSW), with maliciously inflicting grievous bodily harm with intent, and in a further count under s 110 of the same Act, with breaking and entering that victim's house and, while in it, inflicting grievous bodily harm on him. 94Both charges contained infliction of grievous bodily On an appeal against a conviction on indictment, the Court may, either of its own motion or on the application of the appellant, order a new trial in such manner as it thinks fit, if the Court considers that a miscarriage of justice has occurred, and that, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the Court is empowered to make.harm as an element.The former additionally required an element of intent to inflict grievous bodily harm; the latter additionally required an element of burglary. 95e High Court held that the pleas apply only to prevent prosecution of a different offence where the essential elements of the offences charged are identical or where the elements of one offence are wholly included in the other. 96The rule reiterates Blackstone's original conception by focussing attention on the elements of the offence and the question of whether the accused is relevantly rejeopardised, because he or she might, on the earlier indictment, have alternatively been convicted of the latter charge. 97he common law test now largely corresponds with s 17 of the Criminal Code (Qld), which provides: It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged.
To summarise, the double jeopardy rules therefore prevent subsequent prosecution for an offence wholly incorporated in a more serious or aggravated version of that offence. 98However, the rule will not apply to offences which merely have overlapping elements; the rule will not protect against a second prosecution if there is even one additional element which reflects some aspect of the accused's criminality not wholly included in the prior charge. 99The rule reflected in the autrefois pleas may therefore be of limited application, but it is binding on the courts.No exercise of discretion is required. 3

Abuse of Process
The inherent judicial discretion to prevent an abuse of process enjoyed a resurgence in Anglo-Australian law in the last decades of the twentieth century. 100The jurisdiction extends to any category of case in which court processes may be used as instruments of injustice or unfairness. 101The power to grant a stay of proceedings in such cases is usually described, by way of shorthand, as a discretionary power.Strictly speaking however, if proceedings are found to be an abuse, the stay must be granted.There are some clear categories of case (discussed below) where the weight of authority in support of a stay would seem almost unanswerable.The reference to the decision being discretionary, most likely refers to those cases that do not sit in a recognised category and where reasonable minds may differ about whether the proceedings are an abuse.In order to decide whether proceedings should be permanently stayed the court will undertake a balancing test.On the one hand, the court considers the question of fairness to the accused, and in particular, whether the prosecution is oppressive or vexatious in the circumstances of the case.On the other hand, the court considers the public interest in resolving serious criminal charges and the need to maintain public confidence in the criminal justice system. 103 Rogers 104 the appellant was charged with a number of counts of armed robbery.The only evidence connecting him with those offences was a confession.At a previous trial of different armed robbery charges, another confession, taken at the same time under identical circumstances, had been ruled involuntary, and hence, was inadmissible. 105ogers argued that criminal issue estoppel applied to prevent the relitigation of issues previously and conclusively determined in his favour at the earlier trial. 106Criminal issue estoppel is a doctrine founded on double jeopardy principles because it protects the accused from the need to traverse issues already determined conclusively against the Crown in earlier proceedings.Hunter argues that it is a doctrine implicitly protective of an accused's rights. 107e High Court held that criminal issue estoppel had no place in the criminal law of Australia. 108The decision followed an earlier decision in Storey 109 where Gibbs J analysed a line of what were, purportedly, criminal issue estoppel cases.He found that for the purpose of an estoppel, an issue in a criminal case is rarely able to be identified with precision because a verdict is almost always multifaceted, and involves no conclusive determination of component issues. 110Moreover, he found that very few of the cases analysed were true applications of the estoppel. 111Instead, they involved application of another principle, also founded in double jeopardy norms: that the Crown cannot in a subsequent case seek to controvert a prior verdict of acquittal. 112 Rogers, the Court accepted that the principles involved were truly fundamental because they promoted confidence in the administration of justice by preventing the embarrassing absurdity of conflicting judicial decisions. 113The majority determined that the principles could be protected more effectively and the law developed more coherently by recognising the issue as a species of abuse of process. 114In their judgment, Deane and Gaudron JJ emphasised the public interest in the incontrovertibility of judicial decisions without reference to any consideration of fairness to the accused. 115 tendering the confessions was vexatious and unfair to the appellant, but like Deane & Gaudron JJ, he considered that the prevailing factor was the need for judicial determinations to be accepted as binding. 116 Carroll 117 the accused was tried for the murder of a baby.At trial, he denied on oath any involvement in the killing, and was ultimately acquitted.Some time later the Crown indicted him for perjury.The charge alleged that his denial under oath constituted perjury, because he did in fact kill the baby. 118In order to succeed, the charge required proof of the killing, but it was not within the scope of the autrefois acquit plea because guilt for perjury was not a verdict open on the previous indictment. 119e High Court unanimously recognised the case as one which went to the heart of the double jeopardy principle. 120Following Rogers, the court declared that no rule of preclusion prevented the bringing of the perjury charge. 121Instead, the case was recognised as an unambiguous example of an abuse of process.The abuse lay in the manifest inconsistency between the charge of perjury and the acquittal for murder and in the Crown's attempt to controvert that earlier verdict. 122Like the Rogers case, members of the court emphasised the public interest in the finality of judicial determinations; factors relating to the potential for oppression of individuals were less prominent in the judgments. 123 seems that in Pearce, Rogers and Carroll, the High Court has demonstrated a preference for promoting double jeopardy by reference to a discretionary mechanism, rather than through preclusionary rules.In Carroll, Gleeson CJ and Hayne J explained that the principle of double jeopardy was broader and less precise than the preclusionary rules claimed to support it.Of necessity, the boundaries of rules must be precisely defined.Resolving these issues under the rubric of abuse of process allows the court greater flexibility to give effect to the principles in a broader range of cases. 124lton 125 was a case that illustrated that claim.In Walton, the respondents were doctors involved in the notorious Chelmsford Psychiatric Hospital in the 1970s, where the routine practicing of controversial and scientifically dubious therapies became the subject of numerous investigations, including a coronial inquiry, a Royal Commission and various civil suits. 126There were also complaints to the Medical Tribunal.In 1986 the NSW Court of Appeal granted a stay of Tribunal proceedings on the grounds that the prolonged delay was 'inexcusable' and constituted an abuse of process. 127 The High Court identified the case as one which was beyond the scope of any double jeopardy rule.There had been no full hearing of the earlier case on its merits and the identity of the complainants in the second case was different.However the court recognised the oppressive potential in repeatedly jeopardising the respondents' right to practice. 129This was a case where notions of fairness to the respondents dominated the Court's reasoning.
Hunter argues that, in removing the technical rules, the High Court has replaced a legal right with a mere discretionary protection. 130Justice Kirby claims that the power to order a stay instead 'represents a separate and independent safeguard'. 131Both arguments have their attractions.As Walton shows, a 'discretionary' power is more flexible because it can be employed in novel situations.But Hunter's concerns also seem valid, especially where protective rights have given way to discretion.This is concerning because the court has seemed somewhat ambivalent, especially in criminal cases, about the fairness of renewed litigation to the accused.As noted above, Walton indicates that fairness to the accused is a countervailing factor that must be balanced against various public interests, 132 but Hunter notes that the countervailing factors are not susceptible to precise 'weighing', so the balancing process may simply mask the judge's subjective preferences. 133And, whether or not the decision is strictly classed as discretionary, the rules applying to appellate review of discretionary decisions seem to apply, thus limiting appellate courts' powers of supervision. 134At any event, as the above analysis shows, the significance of an accused's personal right to avoid the vexation of double prosecution has not dominated the court's reasoning.If common law double jeopardy ever conferred protective rights for the benefit of individuals, that right seems now to be in decline.

C The Rationale for Double Jeopardy
This section of the paper will present a brief précis of the underlying rationales for double jeopardy.It is already apparent from the above discussion that some of the policies underlying the principle are directed at protecting fundamentally distinct values.In Carroll, Gaudron and Gummow JJ, after explaining that a decision to order a stay of proceedings for abuse of process is not strictly a discretionary decision, state (at 18): However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration.If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing.

EDGELEY (2007) 1 The societal value of finality
The finality of judicial determinations is an important value which lies at the heart of the double jeopardy principle.Finality promotes closure after potentially tragic events, allowing a line to be drawn indicating that a crime and its aftermath are now closed. 135re importantly, finality promotes confidence in judicial outcomes.Concurrently inconsistent or subsequently conflicting judicial decisions potentially appear as an absurdity, making the criminal trial process seem like a lottery. 136This value has been repeatedly emphasised by the High Court: 137 The interests at stake … touch upon matters fundamental to the structure and operation of the legal system and to the nature of judicial power.First, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive.Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct.This reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute.… Finally, there is the principle that a cause of action is changed by judgment recovered in a court of record into a matter of record, which is of a higher nature. 138lated to that argument is the notion that our system is underpinned by the sanctity of the jury verdict. 139Subsequent trials of matters already finalised smacks of jury shopping and undermines the jury as an institution. 140Roberts argues that jury trials are 'part of the basic structure of legitimate political authority'. 141Indeed, the right to trial by jury is one of the few express criminal procedure rights enshrined in our Constitution. 142e public interest in finality is undoubtedly important.But the value is not absolute.The appeals process already allows retrials under limited circumstances. 143It is difficult to accept that this aspect of finality would be fundamentally challenged by the addition of two other, highly circumscribed statutory exceptions. 144ol 7 No 1 (QUTLJJ) Truth or justice?Double jeopardy reform for Queensland: Rights in jeopardy 2 Investigative and prosecutorial diligence Another public interest argument suggests that double jeopardy promotes diligence in investigations and prosecutions. 145The idea is that police and prosecutors know that they have only one opportunity to convict an offender.So, they marshal resources to investigate thoroughly and put forward the strongest case possible. 146number of commentators consider this to be a weak argument in support of double jeopardy. 147Even if it were true that the work ethic of police and prosecutors is driven by case outcomes, 148 as a matter of logic their diligence would be unaltered by the reforms. 149During the original investigation and prosecution it could not be known whether a second trial would be available because the delineated circumstances which would permit it are unknowable in advance. 150

Risk of wrongful convictions
Another argument for retaining strong double jeopardy rules is that reform would increase the risk of wrongful convictions. 151This argument acknowledges that the trial process is necessarily fallible.The risk that a jury will unjustifiably convict will, theoretically, double if a second trial is allowed. 152The second prosecutor will doubtless enjoy some tactical advantages at the second trial.The defence strategy will be known and the prosecution case can be adapted to answer it. 153Areas of presentational weakness in the first prosecution case can be polished. 154These advantages may make it easier the second time around for the prosecution to discharge the burden of proof. 155garic and Neal answer this argument convincingly by pointing out that the risk of wrongful conviction should instead be ameliorated by addressing the base causes, for example, by increasing investigatory and evidential safeguards.The wrongful conviction argument, in their view, is not so much an argument for retaining double EDGELEY (2007)   jeopardy rules, as an argument for fundamental reform of the entire criminal justice process. 156

The individual value of finality
There are also important individual values protected by double jeopardy.In the US, these values are considered to be one of the foremost justifications for double jeopardy protections.In Green v United States, Black J made the following oft-cited comment: The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty. 157is value is also the subject of the maxim so frequently cited in double jeopardy cases, from the 1589 Sparry's Case to today: 158 nemo debet bis vexari pro una et eadem causa -no-one shall be twice vexed for the same cause.
A prosecution for a serious criminal offence is undoubtedly an enormously stressful event in the life of an accused individual. 159The accused's liberty is at stake, possibly for decades into the future.If convicted, the accused's life will be changed forever.The accused's social and even familial relationships will be intensely challenged.These outcomes are contingent on conviction, but the anxiety commences much sooner and will beset innocent and guilty alike.
Even before the verdict is known, the process is not merely inconvenient.Criminal charges can potentially disrupt careers and relationships.The highly public nature of the process makes it inevitably embarrassing, possibly even permanently stigmatising. 160he cost of mounting a defence may be substantial and is unrecoverable, even if the accused is acquitted. 161posing citizens to this legitimate but arduous process is the price we presumably must pay for having a rigorous system for identifying and punishing criminals.But once that process has reached conclusion, many commentators claim that repeating it would be vexatious.It is claimed that affected individuals are justified in demanding finality, so that they can rebuild their lives without living in a constant state of insecurity.commentators have fallen into the trap of thinking that only the guilty need fear. 163But all defendants acquitted of a crime within the scope of an exception may, to some extent, fall prey to the fear that the ordeal will be repeated.
Parkinson considers that the prospect of subjecting accused individuals to a double dose of anxiety and distress is not a strong argument to retain double jeopardy protections. 164ennis agrees, arguing that these concerns more than others, have generated the most high-pitched rhetoric. 165In both cases, these authors consider that the individual interests in finality are not as compelling as the collective interest in securing the conviction of guilty offenders. 166wever, as Dennis noted, the individual's interest in finality arises from the State's duty to treat its citizens with humanity. 167It is an aspect of the 'liberal imperative to treat all citizens with dignity and respect'. 168In a liberal democracy the notion of an entitlement to be free from vexation is not simply about the avoidance of fear and distress -freedom from State harassment can plausibly be portrayed as the defining characteristic of autonomy; it allows people space, as the Law Commission realised, to meaningfully pursue their own visions of the good life. 169As the Law Commission eventually accepted, autonomy is a fundamentally worthwhile political and social objective, something to be valued for its own sake. 170

To limit (abuse of) State power
The corollary of the notion that individuals have a right to freedom from vexation is the notion that State powers are, in some way, limited.One of the most compelling rationales for maintaining strong double jeopardy protections concerns its capacity to operate as a check on the abuse of State power. 171is rationale emphasises the normative political foundations of legitimate criminal process. 172One way to view double jeopardy is through the construct of a Rousseauist social contract.Under the terms of this putative bargain, citizens consent to State use of coercive power, but only according to strictly defined rules which keep State power within proper ambit. 173In Roberts' view, the bargain has constitutional force because its terms are the bedrock of reciprocal obligations between citizens and the State. 174DGELEY ( The criminal justice deal that Roberts describes, stipulates an adversarial trial, as a settled and 'culturally acceptable mode of forensic fact-finding', at which the State will marshal its considerably superior resources, and take its one best (and last) shot at securing a conviction against an accused citizen.The final verdict will be delivered by a jury of the citizen's peers, which Roberts considers to be a fundamental part of the 'basic structure of legitimate political authority'. 175Roberts argues that double jeopardy represents a central feature of the criminal justice deal. 176The rule is extremely wellknown among citizens (even if not known by name), which belies its status as an arcane rule of criminal procedure. 177Thus, having submitted herself to the criminal justice system, once the final verdict is delivered, whether guilty or innocent, the State's political and moral authority to scrutinise the accused's conduct is exhausted. 178berts argues that double jeopardy reform amounts to an attempt by the State to renege on the criminal justice deal.He argues that removing double jeopardy protection effectively reconfigures the system of jury trials.It involves a move from a system where jury verdicts are virtually inviolable to a system where one jury verdict can be invalidated and supplanted by another, presumably delivered by a more accommodating jury. 179In his view, it is an affront to constitutionally mandated finality. 180berts' argument is that a second prosecution is illegitimate per se, regardless of the merits of the case or the motivations of the prosecutor. 181Another concern is the idea that citizens could be subject to malicious or illegitimately-motivated prosecutions. 182t's possible, of course, that a police officer could develop personal animus against an acquitted accused. 183Conceivably, a prosecutor could also develop a win-at-all-costs mentality. 184More plausible is the concern expressed by many commentators that media campaigns may drive politically-motivated prosecutions. 185A precedent already exists in Australia for precisely this concern.The Australian mounted a concerted campaign following the 2002 Carroll case calling for changes to double jeopardy laws to make the acquitted man 'answer for murder'. 186That campaign and the Carroll case is discussed in more detail below in Part Two.
Vol 7 No 1 (QUTLJJ) Truth or justice?Double jeopardy reform for Queensland: Rights in jeopardy

II BACKGROUND TO QUEENSLAND'S DOUBLE JEOPARDY REFORM A THE CARROLL CASE
In 1973, the body of baby Deidre Kennedy was found on top of a toilet block in a park in Ipswich.The baby had been strangled and was dressed in women's underwear stolen from a nearby house.There were bruises on Deidre's thigh which experts believed were human bite marks. 187Alas, a panel of 10 odontological experts, led by the eminent Dr Romaniuk, reported that the marks were too ill-defined to identify the killer. 188The only clue to the killer's identity was a single pubic hair found on the body. 189For a long time, the murder remained unsolved.
In 1984, Carroll came to the attention of police in relation to an investigation into the theft of women's underwear.The connection was tenuous, but Carroll agreed to an interview and supplied investigators with a hair sample and allowed a cast to be made of his teeth.The hair sample was inconclusive (1984 being part of the pre-DNA era), but the dental impressions were to prove critical. 190At Carroll's trial three odontologists gave evidence about the bruises on the baby's thigh.They testified about the difficulties of the comparison task: it required comparing two-dimensional photographs of bruises with the three-dimensional cast; there were no indentations to compare, only bruises, which can be distorted by the body's positioning; and teeth change naturally over time -to further complicate that picture, the accused had dental work performed in the intervening period.All experts concluded that the marks were made by Carroll's teeth, although there was disagreement among them as to which teeth caused particular marks. 191That unexplained discrepancy was later highlighted by Kniepp J, as one of the least satisfactory aspects of the odontological evidence. 192oreover, one of the experts, notwithstanding his own conclusion, candidly admitted that the identification of teeth by reference to bruises was not scientifically valid -his own conclusion was, therefore, unreliable.The others, including Dr Romaniuk, testified that teeth could be identified from these bruises.However, Dr Romaniuk's opinion at trial represented a complete reversal of the conclusion in his 1973 report -another discrepancy which Kniepp J found was never satisfactorily explained. 193ere was no other evidence linking Carroll with the murder.Doubt was cast on his alibi, that he was in South Australia at the time of the murder, but there was no evidence to show that he was in Ipswich at the relevant time. 194Carroll testified on his own behalf, denying that he killed baby Deidre, but the jury did not believe him.A verdict of guilty was returned. 195On appeal, the Court quashed the verdict, finding that a EDGELEY reasonable jury acting on the evidence must have entertained doubts about Carroll's guilt. 196irteen years later, in 1999, Carroll was indicted for perjury.The charge alleged that at his 1985 trial, Carroll knowingly gave false testimony because his sworn denial of killing Deidre Kennedy was a lie. 197Regrettably, the pubic hair found on Deidre's body had been lost in a laboratory mishap, but in the interim, the Crown had uncovered new evidence. 198It had acquired more consistent odontological evidence, a cellmate would testify to a jailhouse confession in 1984 and a witness came forward who, 26 years after the murder, was able to testify that Carroll was in Ipswich on the day in question. 199gain, the jury convicted. 200Carroll's ensuing appeal was upheld on the grounds of abuse of process, but the Court of Appeal noted that at any event, the jury's verdict was, even with the new evidence, unsafe and unsatisfactory (again). 201The Crown appealed to the High Court but the appeal was dismissed. 202e case was used as cause célèbre by media to lobby for law reform to permit Carroll's retrial.Implicit was the view that Carroll had been wrongly acquitted. 203The Australian obtained legal opinions from eminent legal experts and launched a petition calling for legal reform.If all else failed, the newspaper promised to fund a civil suit to help Deidre's mother 'fight for justice'. 204Ironically, underpinning the newspaper's demands for the lifting of double jeopardy restrictions, was outrage that the sanctity of the jury had been attacked by the Court of Appeal's reversal of two jury verdicts. 205UNITED KINGDOM In the United Kingdom, calls for double jeopardy reform started in 1999, in the aftermath of the racially-motivated 1993 murder of an 18 year old black man, Stephen Lawrence, while he was waiting for a bus. 206A report into the police investigation showed that it was riddled with errors and possibly infected by institutionalised racism. 207ol 7 No 1 (QUTLJJ) Truth or justice?Double jeopardy reform for Queensland: Rights in jeopardy Five suspects were identified, but no charges were brought until 1995, when Lawrence's parents instigated a private prosecution.Two suspects were discharged at the committal stage; the others proceeded to trial, where the judge ruled that the prosecution identification evidence was too unreliable to be admitted.The prosecution case collapsed and the jury acquitted the three men. 208e parents called for an inquiry and in 1999, the Macpherson Report was published. 209t recommended that consideration be given to reforms to permit a second prosecution where fresh and viable evidence was available. 210A litany of reports and consultation papers followed and in due course, the Criminal Justice Act 2003 (UK) became law. 211art 10 of that Act permits a second trial of a serious criminal offence, where there is new and compelling evidence and the retrial is in the interests of justice. 212The scheme builds on the Criminal Procedure & Investigations Act 1996 (UK), which allows a retrial of a 'tainted acquittal' when, but for the commission of an administration of justice offence, the accused would probably not have been acquitted. 213NEW ZEALAND In 1992 Moore and a co-accused, both gang members, were charged with the murder of a rival gang member.At their trial, a defence witness gave alibi evidence on behalf of both accused and they were acquitted.In 1999 Moore was convicted of conspiracy to pervert the course of justice in relation to that alibi evidence and was sentenced to the maximum penalty available, seven years in prison. 214In sentencing Moore, the judge remarked that the maximum penalty was justified, indeed it was inadequate, because he 'had literally got away with murder'. 215e Law Commission of New Zealand was asked to report into the Moore case and whether, in light of it, limited exceptions to double jeopardy laws were justified. 216The Commission concluded that no case had been established in New Zealand for a new evidence exception, but it considered that a narrow exception was justified, based on the UK notion of a tainted acquittal. 217EDGELEY ( Currently, clause 7 of the Criminal Procedure Bill 2004 (NZ) embodies the proposed changes, incorporating a tainted acquittal exception as well as the UK's 'new and compelling evidence' exception. 218A second reading speech was made in 2006, but at the time of writing, the debates were continuing. 219NEW SOUTH WALES The Australian's double jeopardy reform campaign coincided with the run-up to a NSW State election. 220The day before the election was called, Premier Carr announced that double jeopardy laws would be reformed to allow retrials based on fresh evidence and to create wider prosecution powers of appeal. 221thin months, briefing papers were obtained and the Commonwealth's Model Criminal Code Officers Committee also published a discussion paper. 222In 2006, the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW) (the NSW Act) was passed.The legislation is modelled on the UK reforms, incorporating the fresh and compelling evidence and tainted acquittal exceptions. 223ditionally, the prosecution will be able to appeal against directed jury acquittals or acquittals in trials without juries on grounds of law alone, and if successful, the verdict can be quashed and a retrial ordered. 224There is already Australian precedent for the latter appeal powers.These prosecution appeal powers are well-established in Western Australia 225 and Tasmania allows appeals against an acquittal on questions of law alone, provided the court grants leave. 226

III THE PROPOSED QUEENSLAND REFORMS A ARGUMENTS FOR REFORM
Proponents of double jeopardy reform assert that the legitimacy of the criminal justice system depends on a commitment to the delivery of accurate judgments. 227Essentially, this argument doesn't favour truth over justice, but it professes that truth is justice.Dennis argues that the moral authority of the law 'derives in large measure from factual Vol 7 No 1 (QUTLJJ) Truth or justice?Double jeopardy reform for Queensland: Rights in jeopardy accuracy'. 228While supporting the general application of double jeopardy rules, Dennis believes that the legitimacy of the criminal justice system is seriously challenged when new evidence casts doubt on the veracity of previous verdicts or when offenders perpetrate a fraud on the system that allows them to escape justice. 229Dennis considers that the procedures used to determine guilt and innocence must deliver both substantive and procedural justice.Where there is tension between the demands of substantive and procedural justice, the rules should favour delivering substantive justice. 230As to finality, it should be accepted that an acquittal is not a declaration of innocence. 231ennis believes there is simply no merit in doggedly demanding respect for an outcome which is strongly suspected of being wrong. 232is legitimacy argument draws on both normative and public confidence considerations.Certainly, there is little doubt that public outrage is generated when a presumptively guilty offender exploits the system and escapes justice. 233The community has a valid interest in ensuring that known offenders are punished.Apart from consequentialist arguments (which on a marginal basis are hardly compelling), that interest is legitimately retributive -guilty criminals should receive their just deserts. 234 that view, double jeopardy reform is simply another crime control proposal. 235And yet, most guilty offenders escape justice, not because of procedural rights, but because they escape detection. 236Fitzpatrick believes, unquestioningly, in the public interest in convicting guilty offenders, but he also considers that those accused of serious crimes are also those in most potential need of protection against State abuses. 237In that regard, it should be noted that proponents often seem to assume that we can accurately distinguish between valid and wrongful acquittals. 238Fitzpatrick considers that the public interest in punishing the guilty might be advanced more directly by focussing on the decidedly-less-sexy issues of improved investigative techniques, better police training and the adequate resourcing of investigative agencies. 239ere is also an argument that victims have a 'right' to see guilty offenders punished. 240here has been, in recent decades, growing recognition of victims' needs, and of the role that the criminal justice system can play in assisting their recovery. 241It has been asserted that victims suffer trauma when the acquitted accused cannot, despite new EDGELEY evidence, be reprosecuted.It is suggested that the unfairness to the victim of the failure to reprosecute is equal to the unfairness of subjecting an acquitted accused to another trial. 242ere are a number of answers to this argument.First, logically, the fairness of subjecting the accused to another trial cannot be assessed without making assumptions about the accused's guilt or innocence.If the accused is guilty, then the process is procedurally unfair, but substantively, not the least so.If, on the other hand, the accused is innocent, then the process is both procedurally and substantively unfair in very large measure.
Second, where is the evidence that the process of prosecution-conviction-punishment aids victim recovery?Victimologists acknowledge that, to date, there has been little empirical research into this question.What is known, is that victims often feel moral satisfaction when they believe that a just verdict has been delivered, whereas unfavourable court outcomes are known to cause disappointment and even moral outrage. 243What is also known is that victim interactions with criminal justice processes can cause secondary victimisation and that risk can be ameliorated by provision of information and support and a more holistic approach to victim needs. 244he assumption that the victim's interests will automatically be enhanced by the diminution of the accused's rights is a potentially dangerous one. 245When the issue at stake is process protections that have been developing for more than half a millennium, care should be taken to justify changes, at least by reference to evidence-based claims.
Third, trials are not run for therapeutic purposes. 246It may have to be accepted that victims are unlikely to support any procedural protections which prevent punishment of the person they believe responsible. 247The presumption of innocence is one factor which victims have identified as a 'significant imbalance in the consideration of [their] interests vs. the perpetrator's interests'. 248And yet, the presumption of innocence is, arguably, the core organising idea of the criminal justice system.It is one of the ideas that breathes life into the concept of autonomy.It may be that that the price that has to be paid for that presumption, is toleration of the occasional wrongful acquittal. 249THE QUEENSLAND BILL The Queensland Bill is closely modelled on the NSW Act, which in turn, was modelled on the UK Acts. 250There are however some important differences between the NSW Vol 7 No 1 (QUTLJJ) Truth or justice?Double jeopardy reform for Queensland: Rights in jeopardy and Queensland schemes, which will be highlighted below.The scheme of the Queensland Bill reveals attention to many of the arguments supporting the retention of double jeopardy protections.Hence, the scope of the exceptions has been limited in some significant ways and a number of safeguards have been incorporated into the Bill.
1 Fresh and compelling evidence exception The retrial of a person under the 'fresh and compelling evidence exception' will only be permitted in Queensland in relation to the offence of murder. 251In NSW, the exception applies to offences which carry a maximum penalty of life imprisonment. 252Apart from murder, that currently includes certain aggravated sexual assaults and serious commercial drug operation charges. 253 the UK, the debate on the scope of this provision attracted diverse views.The Law Commission (UK) originally proposed that the exception apply to cases attracting a minimum three year prison sentence, but ultimately it concluded that the scope should be limited to murder because 'murder is not just more serious than other offences but [it is] qualitatively different'. 254Others thought that there was no principled distinction between murder and other serious offences. 255e decision in Queensland to limit the exception to murder seems to represent a tradeoff between the fundamental interests protected by double jeopardy and the public interest in ensuring that the most serious offence under our system can be prosecuted, even after an acquittal. 256e provision only applies to cases where there is 'fresh and compelling' evidence. 257oth terms are defined: evidence will be 'fresh' if it was not adduced in the original proceedings and could not have been adduced with the exercise of reasonable diligence. 258Evidence is 'compelling' if it is reliable, substantial and, in the context of the issues in dispute, highly probative of the case against the acquitted person. 259e UK exception applies more expansively to new and compelling evidence. 260The choice in Queensland and NSW to opt for the higher threshold of 'fresh evidence' will EDGELEY prevent a retrial where, as a result of incompetence or a tactical decision, evidence was not called at the original proceedings. 261Tainted acquittals exception The tainted acquittal exception in Queensland applies to offences with a maximum penalty of 25 years or more imprisonment. 262In NSW, the exception applies to offences with a maximum of 15 years or more, and in the UK there is no restriction on which offences can be reopened. 263The exception will be available when the court is satisfied that, but for the commission of the administration of justice test, it is likely that the accused would have been convicted. 264is proposal has been less controversial, with a number of commentators considering that an acquittal procured by fraud is less deserving of double jeopardy protection. 265here has been some concern that the inclusion of perjury within the list of offences that can 'taint' an acquittal, will undermine an accused's right to testify on his or her own behalf. 266The MCCOC's view was that: perjury must be seen as an offence against the administration of justice.It would be absurd not to do so.The offence of perjury protects interests that lie at the heart of the criminal trial process.The fact that one happens to be the accused in a criminal trial does not and should not confer a licence to lie on oath.For that reason, it is not rational to limit such an option to serious offences.The insult to the integrity of the legal process is the same no matter what the offence. 267hers have drawn attention to the fact that the provision allows an acquittal to become tainted by an administration of justice offence committed by a third party. 268Acting Justice Jane Mathews considered it would be unfair to an acquitted person to retry them without being satisfied of their complicity in the 'tainting' of the acquittal. 269

Interests of justice test
Both exceptions also require a determination by the court that the order allowing the retrial will be, in all the circumstances, in the 'interests of justice'. 270Certain matters must be considered in reaching that determination.The court must have regard to the length of time since the acquitted person allegedly committed the offence and whether Vol 7 No 1 (QUTLJJ) Truth or justice?Double jeopardy reform for Queensland: Rights in jeopardy there has been any failure to act with competence and diligence in relation to the original investigation or prosecution or, in relation to the application for retrial. 271The provision declares that it will not be in the interests of justice to make the order unless the court is satisfied that a fair trial is likely in the circumstances. 272This important safeguard preserves the court's discretion to apply the scheme flexibly and, perhaps, to guard against injustice in particular cases. 273Prospectivity / retrospectivity In NSW, both double jeopardy exceptions operate retrospectively. 274In the UK, only the fresh evidence exception operates retrospectively. 275In Queensland, both exceptions will operate prospectively.
Johns, in a NSW Government Briefing Paper, recommended that the exceptions operate retrospectively because new forensic techniques, such as DNA technology, would allow unsolved cases to be cleared up. 276The issue of retrospectivity is controversial. 277cting Justice Mathews supported the application of retrospectivity to tainted acquittals. 278But she opined more generally that the notion of retrospectivity was repugnant in criminal law, and especially when the liberty of the individual was at stake.She noted that retrospectivity in relation to the fresh and compelling evidence exception, would render all past acquittals for qualifying offences conditional. 279oreover, retrospective application of the exceptions may constitute a breach of our due process obligations under international human rights law. 280Risk of prejudice A number of commentators were concerned about the risk of prejudice to the accused from pretrial publicity. 281The risk would presumably be amplified if the jury became aware that the retrial had the Court of Appeal's imprimatur, or that the Court had found new evidence to be compelling or that the accused had been earlier acquitted because of an administration of justice offence. 282DGELEY (2007) The scheme meets these concerns by prohibiting the publication of any material which could have the effect of identifying an acquitted person subject to an application under the scheme. 283The ban would apply from before the reopening of the police investigation until the end of the trial. 284The ban would not apply if the court so orders, but it can only so order if satisfied that lifting the ban is in the interests of justice. 285A contravention of the ban is punishable as contempt of the Supreme Court. 286tzpatrick remains unconvinced that even a well-intentioned, comprehensive prohibition will be effective.He points out that the first trial and acquittal may have provoked ample publicity and much of the supposedly protected information will remain in the public domain. 287The Carroll case illustrates the point.Imagine the challenge of recruiting an untarnished jury today for that matter. 288Other safeguards A range of other safeguards are incorporated into the scheme.Only one application for retrial can be made in relation to the original offence. 289The prosecution thus gets a second 'bite of the cherry', but not a third. 290Police cannot investigate an acquitted person in relation to a possible retrial without the written authorisation of the Director of Public Prosecutions. 291Additionally, pending the retrial, a presumption in favour of bail applies, reversing the usual presumption against bail for a person charged with murder. 292 CONCLUSION Ironically, given the incendiary role of these cases, neither Raymond Carroll nor the killers of Stephen Lawrence will be reprosecuted.For various reasons, neither case falls within the scope of the exceptions. 293Corns examined controversial acquittals Australia-wide and has concluded that, while no hard data exists, the number of cases likely to fall within the reforms is tiny. 294In the UK, police have closed the file on 35 cases because the suspected offender was acquitted. 295There is nothing to suggest how