Double Jeopardy Laws Australia and Balancing the Rights of Victims, Offenders, and Society

Date:  2021-03-22 05:19:23
7 pages  (1921 words)
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This essay has been submitted by a student. This is not an example of the work written by our professional essay writers.

The courts are tasked with the responsibility of ensuring that justice has been done for those who have been oppressed unlawfully by judging the offenders as per the provisions of the law. Justice can be defined as the moral rightness, the fairness, or the system that enables every person to receive his/her due such as the legal and natural rights and freedoms. However, at times, the attorneys and judges focus on procedures of prosecution, and this may not result in justice for all (Davidson, 2015). During the court hearings, the judges must remain neutral and make a decision based on the facts presented. Meaning that there should be justice for the offenders, the victims, and the society as a way of ensuring justice for all. Nevertheless, some rules and regulations such as the double jeopardy rule as applied in Austria may seem to favor the offender, as they do not allow fresh evidence and similar cases to be retrieved as applicable in England.

The case under study

Between 1990 and 1991, aboriginal children Evelyn Greenup, Colleen Craig, and Clinton Speedy-Duroux became victims of murder, and their cases have been related to a single suspect. The suspect, a white man, was eventually judged for the killing of two children and the story involves the failure of the courts to exercise justice for the murdered children and their families because of the limitations of the double jeopardy rule. The children were killed in a span of five months and were living in the same locality (Magee, 2013). The application of the double jeopardy rule, in this case, means that the parents of the murdered children could not unite and provide evidence during prosecution and that the suspect could not be judged twice for a similar crime committed. meaning that the rule is seemed to be biased as some sections of the populace will have to be affected and lack the necessary lawful support that could enable them to receive justice for the wrongs done against them.

Understanding Bowraville

The country is located in New South Wales with a population density of about 1000 people. However, 24% of them are aboriginal, and the majority of them live in a particular estate, Aboriginal Mission Estate. This is the estate in which the disappearance of the three children under study happened; they were murdered, and it is associated with cases of racial segregation and tension. The law enforcement officers have to ensure that this area remains safe. Otherwise, more of such cases can be reported, thus affecting the country adversely (Terry, 2015). Therefore, before making any ruling related to racial issues in this area, it is necessary for the jury to understand the racial tension and prejudice practiced there and the best way forward in solving the problem, thus making a sound and lawful judgment. Nevertheless, it is not okay for the people to be segregated on racial lines, as this will lead to the inability to work optimally and thus a reduction in production levels.

The double jeopardy rule

The law prohibits the judges from opening up a hearing on a suspect for similar or same charges once a legitimate conviction or acquittal has been made. This means that after the suspect was judged fir the first murder crime, the law could not allow for the next two similar court proceedings. As a result, there will be two sides of the case because the suspect will be relieved of some of his cases while the families of the affected will consider it as justice denied. In the event that the suspect is convicted of two similar offences that have related elements, it will be wrong as per the double jeopardy provisions. However, such crimes must overlap for them to be considered related, meaning that even if there is enough evidence about the other cases, such evidence will not be presented in the court of law (Ventoruzzo, 2015). The understanding of the application if the double jeopardy rule is that a suspect cannot be judged for the same offence more than once. However, there exist some differences in the application of the law from one country to another, and this means that one should understand the existing laws before making a comment on the courts decision. For instance, the Austrian law is different from that of the UK and noting this variance will make it possible for individuals such as international law students to determine how to approach cases involving double jeopardy issues.

The law of Australian double jeopardy was held to prevent further perjury prosecution by following previous findings where the acquittal was controverted, which is in contrast with the other common law of nations. In such terms, it was confirmed In Rv Carrolls case, where new evidence was found by the police which was convincingly disproving for his alibi sworn. Rv Carroll evidence was found after two decades of being acquitted of charges of murder in the death of the child of Deidre Kennedy, Ipswich. Moreover, this made Rv Carroll to be prosecuted for perjury. Following the overturn of his perjury conviction by the Public outcry, the high court has led to the law reformation widespread calls along the lines of Wales and England legislation.

The model of legislation in 2007 drafted double jeopardy rules during the COAG (Council of Australian Governments), but no estate that had a formal agreement for its introduction. In that regard, all States decided to choose in introducing legislation that mirrors the recommendations COAG's compelling and fresh evidence. In 2006, retrial cases that were serious had a minimum sentence of 20years in the New South Wales. Later on, the parliament of South Wales passed legislation to abolish the rule, which was against the double jeopardy. The bill was passed in cases like an acquittal of a sentence offence of 15 years, or more was tainted by the perversion, bribery, or perjury of the course of justice (George, Ward, & McGarry, (2014). Also, in the acquittal of a sentence offence that involves life such as the production of illegal drugs or substantial commercial supply, gang rape that is so violent, and murder was debunked by compelling and fresh evidence of guilt.

In that conjunction, the South Australia also scrapped parts of the law of double jeopardy through the introduction of legislation. By legalizing retrials for crimes that are serious if the acquittal was tainted or with the compelling and fresh evidence. On 8th Sept. 2011, Western Australia introduced amendments that allowed retrial if compelling and new evidence was found. It was applied to serious offences where the penalty was 14 years or more or life incarceration. Due to that, an acquittal would also allow retrial because of perjury, jury tampering, or witness intimidation. Also on 19th Aug. 2008, Tasmania introduced amendments that allowed retrial in cases that are so severe if there is compelling and fresh evidence. On 21st December 2011, legislation was passed in Victoria to allow new trials where there are compelling and fresh DNA evidence. That is done when a person subsequently admits to the crime or where it is clear that the key witness gives the false evidence. Applications for retrial, however, could only be made for offences that are serious such as armed robbery, rape that is in aggravated forms, serious drug offences, and arson causing death, manslaughter, and murder.

On 18th Oct. 2007, The laws of double jeopardy were modified in Queensland to allow a retrial where compelling and fresh evidence is available after tainted acquittal for a crime that has a sentence of 25 years or more(McCarthy, 2014). A tainted acquittal needs a conviction to administer justice on offences like perjury that led to its originality. Unlike in the Western Australia, South Australia, Tasmania, New South Wales, and the United Kingdom, this rule does not have a retrospective impact, which is so unpopular with some reform advocates.

Legal issues arising from the case under study

The defendant is affected by the proposed change following her/ his acquittal that involves some procedures. To begin with, the DPP (Director of Public Prosecutions) gives the consent for the reinvestigation of the defendant. The other one is only where it emerges compelling, fresh evidence that was not available in the first trial reasonably and suggests guilt that is when the DPP can quash the acquittal by applying to the court of appeal. In that conjunction, the criminal the court of appeal that is the judge of criminology will have the power to order a retrial and quash the acquittal where there is new guilt-compelling evidence, and there is the interest of justice. In such terms, while the reforms are retrospectively operating the retrial will only be one, and the changes are applied only to homicide offences such as manslaughter and murder and those that have life incarceration as a penalty.

The government of the New South Wales proposed that the new evidence is considered as an exception in the article. In both Australia and internationally, the historical growth and development of the doctrine of double jeopardy were reviewed. On the other hand, the United Kingdom adopted the new the reform process that has resulted in the new exceptional evidence, which was examined, and its assumption validity questioned. The article still on the double jeopardy law considered the effect of new evidence exception. In that regard, it is argued that even if the reforms of legislative are well conceived still poses the substantial incursion to protect the right to the finality of the of the accuser. At last, it is acknowledged that there is more likelihood of guilty being convicted on a retrial that benefits both the particular victim and the community.

Nevertheless, this retrial benefits does not outweigh the effects of detrimental that ensures that double jeopardy doctrine is not undermined. In the trial process of a criminal offence, the benefit of finality is of the fundamental importance of the main restrictions are embodied upon the power of the state in a democracy. It is submitted that in this respect the values that are protected by the rule outweigh the desirability to obtain the slightly higher rate of conviction for offences, which will be held except new evidence. However, at a practical level, the outcome is uncertain for the reform package. Due to that, the Macpherson Inquirys author, Sir Macpherson acknowledged that youths are acquitted that even if there is the adoption of the law of Commissions proposals the case of the murder of Stephen Lawrence will not be retried due to the absence of fresh evidence.In that same reason, Raymond Carroll was not retried. Therefore, it made the number of cases that fall within the reforms to be small. This challenged seriously the validity of the aim aforementioned to increase the guilty convicting accuracy. It also suggested that the proposed reforms importance lies predominantly in its significant symbolism that reasserts the criminal justice legitimacy systems. In most obvious cases, a person who has been convicted or acquitted already cannot be subsequently prosecuted on an identical charge. In that conjunction, it is a straightforward and classic case where the quatrefoils, pleas acquit and applicable. At common law, the former acquittal has a protective impact because it has already been passed to judgment and it is res judicata. The latter plea 76 is based on the merger doctrine. In that case, the charge that is subsequent cannot be dealt with as it emerged in the former judgment. The important statutory exception but limited to this straightforward rule of common law is that the exception relates to appeals that are a remedy of statutory.

References

Davidson, A. (2015). The Limits to L...

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