Double Jeopardy

[LaurieAG]

Double Jeopardy seems to have different meanings in different countries.

Double Jeopardy

UN International Covenant on Civil and Political Rights, Article 14(7)
No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

US Constitution, Fifth AmendmentNo person shall be...subject for the same offence to be twice put in jeopardy of life or limb...

Bill of Rights Act 1990 (NZ) Section 26(2)No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

Charter of Fundamental Rights of the European Union (2000) Article 50No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

Canadian Charter of Rights and Freedoms (1982) Section 11(h)Any person charged with an offence has the right...if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

In the US, as opposed to the rest of the world, double jeopardy seems to apply to sentences which would result in the loss of life or limb of the person being convicted i.e. the death penalty.

The UK abolishes double jeopardy protection

In November 2003 the UK's Blair government successfully passed a Bill through Westminister that, among other things, modifies the rule of double jeopardy. The Crown now has a right to appeal acquittals where 'new and compelling evidence' comes to light.

The Criminal Justice Act 2003 (UK) has been used as the model for most Australian proposals to abandon the protection the double jeopardy rule.

Because the non US countries don't have death penalties, surely this just brings things into line with how things are treated in the US?

BTW, the Carroll appeal had an interesting connection to the appeal that resulted in allowing children under the age of consent to consent. The (Vietnamese born) mother of the 11 year old girl who was rented to a 69 year old man for a carton of cigarettes was a 9 year old refugee in the 1970's who lived next door to the house where Dierdre Kennedy was abducted from. Raymond Carroll worked for the RAAF during the Vietnam war.

[Freddy]

"In the US, as opposed to the rest of the world, double jeopardy seems to apply to sentences which would result in the loss of life or limb of the person being convicted i.e. the death penalty."

It simply means a person cannot be tried twice for the same crime in the same jurisdiction. A person can be tried both in federal and state courts for the same criminal act, as it is a separate crime in each jurisdiction, federal and state offenses. Michael Vick's dog fighting charges are an example.

[LaurieAG]

Originally Posted by Freddy;201154I

It simply means a person cannot be tried twice for the same crime in the same jurisdiction. A person can be tried both in federal and state courts for the same criminal act, as it is a separate crime in each jurisdiction, federal and state offenses. Michael Vick's dog fighting charges are an example.

Hi Freddy,

In this case the two trials were different, the first was for Murder and the second was for Perjury. The unusual thing about the case details is that the overhaul of the double jeopardy laws was directly attributed to the RAAF records of the wereabouts of the person charged (i.e. compelling new evidence), that were not presented as evidence at the first trial and became new evidence against the charged persons alibi.

The whole thing follows a very tortured path from beginning to end.

[Freddy]

From Wikipedia:
"In contrast to other common law jurisdictions, Australian double jeopardy law has been held to extend to the prevention of prosecution for perjury following a previous acquittal where a finding of perjury would controvert the previous acquittal. This was confirmed in the case of The Queen v Carroll, where the police found new evidence convincingly disproving Caroll's sworn alibi two decades after he had been acquitted of murder charges in the death of Ipswich child Deidre Kennedy, and successfully prosecuted him for perjury."

Is it only in Australia that this statute for double jeopardy applies?

[LaurieAG]

Originally Posted by Freddy

This was confirmed in the case of The Queen v Carroll, where the police found new evidence convincingly disproving Caroll's sworn alibi two decades after he had been acquitted of murder charges in the death of Ipswich child Deidre Kennedy, and successfully prosecuted him for perjury."

Is it only in Australia that this statute for double jeopardy applies?

Hi Freddy,

You wouldn't think that from the appeal reports in the link from my original post.

In Queensland they've changed the law so that 'compelling new evidence' can be used as a reason for a retrial, but I don't know if they (the Queensland Supreme Court of Review) still adhere to the premise that Murder equates to Perjury.

It's all pretty convoluted really, and it mixes up legal shenannagins, child molestation with official incompetence (RAAF Royal Australian Air Force official records) the Vietnam war and child prostitution, just to name a few.

And, considering that Julian Moti is facing the same charges in a different country, how convoluted will this whole sorry saga turn out?

Interview: Julian Moti

JM: It was a simple matter of law before as well, when I was first charged with these offences. And it was a simple matter of law that justice was delivered to me in the form it did, which exonerated me from any involvement in those matters.

SF: If the charges against you are baseless, why not just go back to Australia and face the charges and end this crisis?

JM: How many times does one have to prove one's innocence? I got my justice in Vanuatu and I'm very angry that the Australian government doesn't dignify judicial system in Vanuatu with justice.

It's a pity that Australian politicians/judiciary seem to care more about prosecution lawyers/Attorney Generals (who possibly know more than what the politicians/judiciary want to become known) than being consistent or transparent for that matter.

Also, considering that there are many Australian legal people spread out through the pacific, many in very high positions, maybe Julian Moti should be handed over to INTERPOL to get to the bottom of pedophiles in the pacific.

[modest]

Originally Posted by LaurieAG

In the US, as opposed to the rest of the world, double jeopardy seems to apply to sentences which would result in the loss of life or limb of the person being convicted i.e. the death penalty.

Where'd ya get that? Oh.. The 5th ammendment

No, I imagine they were being poetical - as Shepherd Book would say. Double jeopardy applies to any conviction or acquittal (once all appeals are exhausted or heard by the highest court of the land) - not just the death penalty. There is no doubt a mountain of federal and state statutes that define and redefine 'double jeopardy' as well as a mountain of judicial precedent. It's not just "life and limb"

- modest

[LaurieAG]

Originally Posted by modest

There is no doubt a mountain of federal and state statutes that define and redefine 'double jeopardy' as well as a mountain of judicial precedent. It's not just "life and limb"

- modest

Thanks Modest,

We've gone a bit further on Australia's seemingly unique legal interpretations of Double Jeopardy, from different charges (Murder and Perjury) to the same charges in different countries (Aquited in Vanuatu where the alleged crime occurred and re-charged in Australia).

Somehow I don't think that this is the end for surprises from Australia's (and much of the Pacifics Australian) judiciary. Especially if they have a hidden agenda.

[modest]

Originally Posted by LaurieAG

We've gone a bit further on Australia's seemingly unique legal interpretations of Double Jeopardy, from different charges (Murder and Perjury) to the same charges in different countries (Aquited in Vanuatu where the alleged crime occurred and re-charged in Australia).

Somehow I don't think that this is the end for surprises from Australia's (and much of the Pacifics Australian) judiciary. Especially if they have a hidden agenda.

I've never thought of that. Double Jeopardy crossing international boundaries. Humm... Vanuatu is independent, isn't it? Did the Vanuatu government give the acquitted individual to the Australian government to be tried again? That would be really scary. What would stop any prosecutor in any government unhappy with an acquittal from turning the person over to another government (Australia) to be tried again? And, even if the person was rearrested in Australia and not officially extradited (extradited in reverse I guess) that's still very scary.

Never thought of this - very interesting.

- modest

[LaurieAG]

Originally Posted by modest

Humm... Vanuatu is independent, isn't it? Did the Vanuatu government give the acquitted individual to the Australian government to be tried again? That would be really scary. What would stop any prosecutor in any government unhappy with an acquittal from turning the person over to another government (Australia) to be tried again? And, even if the person was rearrested in Australia and not officially extradited (extradited in reverse I guess) that's still very scary.

Never thought of this - very interesting.

- modest

Hi Modest,

The story is even more interesting. The case was thrown out of court in Vanuatu when the alleged victim withdrew her statement. The alleged victim (whose father was alleged to be in debt) then retracted her retraction and the Australian government sought prosecution under Australian international child sex laws just before he was appointed the Solomon Islands Attorney General. At the time he was in Papua and New Guinea and Australia sought extradition from PNG. The PNG Prime Minister had him flown to the Solomons in a military flight and he became the Attorney General until the Solomans PM was changed to one who would do the Australians bidding (because funding had been cut while he was Attorney General).

I think that the Pacific Islanders are worried that they will become colonies of Australia masquerading as independent democracies.