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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
Criminal Code (Double
Jeopardy) Amendment Bill
2006
Queensland
Criminal Code (Double Jeopardy)
Amendment Bill 2006
Contents
Page
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3 Amendment of s 17 (Former conviction or acquittal) . . . . . . . . . . 4
4 Insertion of new ch 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Chapter 68 Acquittals
Chapter division 1Preliminary
678 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Chapter division 2Retrial after acquittal for very serious offence
678A Application of ch div 2 . . . . . . . . . . . . . . . . . . . . . . . . 5
678B Court may order retrial--fresh and compelling
evidence .............................. 6
678C Court may order retrial--tainted acquittals. . . . . . . . . 7
678D Fresh and compelling evidence--meaning . . . . . . . . 7
678E Tainted acquittals--meaning . . . . . . . . . . . . . . . . . . . 8
678F Interests of justice--matters for consideration . . . . . . 8
678G Application for retrial--procedure . . . . . . . . . . . . . . . . 9
678H Retrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Chapter division 3Appeals on questions of law
678I Directed jury acquittals . . . . . . . . . . . . . . . . . . . . . . . . 11
Chapter division 4Miscellaneous
678J Authorisation of police investigations . . . . . . . . . . . . . 12
678K Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
678L Restrictions on publication . . . . . . . . . . . . . . . . . . . . . 13
678M Review of chapter. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2006
A Bill
for
An Act to amend the Criminal Code to enable the retrial of
acquitted persons for very serious offences in particular
circumstances and to provide an appeal from a directed
acquittal on a question of law, and for other purposes
s1 4 s4
Criminal Code (Double Jeopardy) Amendment Bill
2006
The Parliament of Queensland enacts-- 1
Clause 1 Short title 2
This Act may be cited as the Criminal Code (Double 3
Jeopardy) Amendment Act 2006. 4
Clause 2 Act amended 5
This Act amends the Criminal Code. 6
Clause 3 Amendment of s 17 (Former conviction or acquittal) 7
Section 17, `It is a defence'-- 8
omit, insert-- 9
`Subject to chapter 68, it is a defence'. 10
Clause 4 Insertion of new ch 68 11
After section 677-- 12
insert-- 13
`Chapter 68 Acquittals 14
`Chapter division 1 Preliminary 15
`678 Definitions 16
`(1) In this chapter-- 17
15 years or more sentence offence means an offence 18
punishable by imprisonment for life or for a period of 15 years 19
or more. 20
acquittal includes-- 21
(a) an acquittal in appeal proceedings in relation to an 22
offence; and 23
s4 5 s4
Criminal Code (Double Jeopardy) Amendment Bill
2006
(b) an acquittal at the direction of a court. 1
administration of justice offence means an offence under 2
chapter 16. 3
Court means the Court of Appeal. 4
fresh and compelling evidence see section 678D. 5
life sentence offence means murder or another offence 6
punishable by imprisonment for life. 7
8
Note--
9
On the enactment of this chapter, the following offences were some of
10
the other offences punishable by imprisonment for life--
11
1 manslaughter (section 310)
12
2 aggravated sexual assault (section 352(3)).
tainted acquittal see section 678E. 13
`(2) For the purposes of this chapter, the retrial of an acquitted 14
person for an offence includes a trial if the offence is not the 15
same as the offence of which the person was acquitted. 16
`(3) In this chapter, a reference to the proceedings in which a 17
person was acquitted includes, if they were appeal 18
proceedings, a reference to the earlier proceedings to which 19
the appeal related. 20
`Chapter division 2 Retrial after acquittal for very 21
serious offence 22
`678A Application of ch div 2 23
`(1) This chapter division applies if-- 24
(a) a person has been acquitted of an offence; and 25
(b) according to the rules of law relating to double jeopardy 26
(including rules based on abuse of process), because of 27
the acquittal the person is, or may be, precluded from 28
being retried for the same offence, or from being tried 29
for some other offence, in proceedings in this State. 30
s4 6 s4
Criminal Code (Double Jeopardy) Amendment Bill
2006
1
Note--
2
Under section 678B, only a person acquitted of a life sentence offence
3
may be retried if there is fresh and compelling evidence. Under section
4
678C, only a person acquitted of a 15 years or more sentence offence
5
may be retried if there is a tainted acquittal.
`(2) This section extends to a person acquitted in proceedings 6
outside this State of an offence under the law of the place 7
where the proceedings were held. 8
`(3) However, this section does not extend as mentioned in 9
subsection (2) if the law of the place where the proceedings 10
were held does not permit the person to be retried and the 11
application of this chapter division to such a retrial is 12
inconsistent with the Commonwealth Constitution or a law of 13
the Commonwealth. 14
`(4) This section extends to a person acquitted before the 15
commencement of this chapter division. 16
`678B Court may order retrial--fresh and compelling 17
evidence 18
`(1) The Court may, on the application of the Director of Public 19
Prosecutions, order an acquitted person to be retried for a life 20
sentence offence if satisfied that-- 21
(a) there is fresh and compelling evidence against the 22
acquitted person in relation to the offence; and 23
(b) in all the circumstances it is in the interests of justice for 24
the order to be made. 25
`(2) If the Court orders an acquitted person to be retried, the Court 26
must quash the person's acquittal or remove the acquittal as a 27
bar to the person being retried for the offence. 28
`(3) The Court may order a person to be retried for a life sentence 29
offence under this section even if the person had been charged 30
with and acquitted of manslaughter or other lesser offence. 31
`(4) The Court may not order a person to be retried for a life 32
sentence offence under this section if the person had been 33
charged with and acquitted of the life sentence offence but had 34
been convicted instead of manslaughter or other lesser 35
offence. 36
s4 7 s4
Criminal Code (Double Jeopardy) Amendment Bill
2006
`678C Court may order retrial--tainted acquittals 1
`(1) The Court may, on the application of the Director of Public 2
Prosecutions, order an acquitted person to be retried for a 15 3
years or more sentence offence if satisfied that-- 4
(a) the acquittal is a tainted acquittal; and 5
(b) in all the circumstances it is in the interests of justice for 6
the order to be made. 7
`(2) If the Court orders an acquitted person to be retried, the Court 8
must quash the person's acquittal or remove the acquittal as a 9
bar to the person being retried for the offence. 10
`(3) The Court may order a person to be retried for a 15 years or 11
more sentence offence under this section even if the person 12
had been charged with and acquitted of a lesser offence. 13
`678D Fresh and compelling evidence--meaning 14
`(1) This section applies for the purpose of deciding under this 15
chapter division whether there is fresh and compelling 16
evidence against an acquitted person in relation to an offence. 17
`(2) Evidence is fresh if-- 18
(a) it was not adduced in the proceedings in which the 19
person was acquitted; and 20
(b) it could not have been adduced in those proceedings 21
with the exercise of reasonable diligence. 22
`(3) Evidence is compelling if-- 23
(a) it is reliable; and 24
(b) it is substantial; and 25
(c) in the context of the issues in dispute in the proceedings 26
in which the person was acquitted, it is highly probative 27
of the case against the acquitted person. 28
`(4) Evidence that would be admissible on a retrial under this 29
chapter division is not precluded from being fresh and 30
compelling evidence merely because it would have been 31
inadmissible in the earlier proceedings against the acquitted 32
person. 33
s4 8 s4
Criminal Code (Double Jeopardy) Amendment Bill
2006
`678E Tainted acquittals--meaning 1
`(1) This section applies for the purpose of deciding under this 2
chapter division whether the acquittal of an accused person is 3
a tainted acquittal. 4
`(2) An acquittal is tainted if-- 5
(a) the accused person or another person has been convicted 6
in this State or elsewhere of an administration of justice 7
offence in relation to the proceedings in which the 8
accused person was acquitted; and 9
(b) it is more likely than not that, but for the commission of 10
the administration of justice offence, the accused person 11
would have been convicted. 12
`(3) An acquittal is not a tainted acquittal if the conviction for the 13
administration of justice offence is subject to appeal as of 14
right. 15
`(4) If the conviction for the administration of justice offence is, 16
on appeal, quashed after the Court has ordered the acquitted 17
person to be retried under this chapter division because of the 18
conviction, the person may apply to the Court to set aside the 19
order and-- 20
(a) restore the acquittal that was quashed; or 21
(b) restore the acquittal as a bar to the person being retried 22
for the offence. 23
`678F Interests of justice--matters for consideration 24
`(1) This section applies for the purpose of deciding under this 25
chapter division whether it is in the interests of justice for an 26
order to be made for the retrial of an acquitted person. 27
`(2) It is not in the interests of justice to make an order for the 28
retrial of an acquitted person unless the Court is satisfied that 29
a fair retrial is likely in the circumstances. 30
`(3) The Court must have regard in particular to-- 31
(a) the length of time since the acquitted person allegedly 32
committed the offence; and 33
s4 9 s4
Criminal Code (Double Jeopardy) Amendment Bill
2006
(b) whether any police officer or prosecutor has failed to act 1
with reasonable diligence or expedition in relation to the 2
application for the retrial of the acquitted person. 3
`678G Application for retrial--procedure 4
`(1) Not more than 1 application for the retrial of an acquitted 5
person may be made under this chapter division in relation to 6
an acquittal. 7
`(2) An application may not be made in relation to an acquittal 8
resulting from a retrial under this chapter. 9
`(3) An application for the retrial of an acquitted person may not 10
be made under this chapter division unless-- 11
(a) the person has been charged with the relevant offence; 12
or 13
(b) a warrant has been issued for the person's arrest in 14
relation to the relevant offence. 15
`(4) The application must be made not later than 28 days after the 16
person is charged with the relevant offence or the warrant is 17
issued for the person's arrest in relation to the relevant 18
offence. 19
`(5) The Court may extend the period mentioned in subsection (4) 20
for good cause. 21
`(6) The Court must consider the application at a hearing. 22
`(7) The person to whom the application relates is entitled to be 23
present and heard at the hearing, whether or not the person is 24
in custody. 25
`(8) However, if the person has been given a reasonable 26
opportunity to be present, the application may be decided 27
even if the person is not present. 28
`(9) The powers of the Court mentioned in section 671B(1) may 29
be exercised in relation to the hearing of the application. 30
`(10) The Court may at 1 hearing consider more than 1 application 31
under this chapter division for a retrial (whether or not 32
relating to the same person), but only if the offences 33
concerned may be tried on the same indictment. 34
s4 10 s4
Criminal Code (Double Jeopardy) Amendment Bill
2006
`(11) If the Court decides in proceedings on an application under 1
this chapter division that the acquittal is not a bar to the person 2
being retried for the offence concerned, it must make a 3
declaration to that effect. 4
`678H Retrial 5
`(1) An indictment for the retrial of a person that has been ordered 6
under this chapter division may not, without the leave of the 7
Court, be presented after the end of the period of 2 months 8
after the order was made. 9
`(2) The Court may give leave only if it is satisfied that-- 10
(a) the prosecutor has acted with reasonable expedition; and 11
(b) there is good and sufficient reason for the retrial despite 12
the lapse of time since the order was made. 13
`(3) If, after the end of the period of 2 months after an order for the 14
retrial of an accused person was made under this chapter 15
division, an indictment for the retrial of the person has not 16
been presented or has been withdrawn or quashed, the person 17
may apply to the Court to set aside the order for the retrial 18
and-- 19
(a) restore the acquittal that was quashed; or 20
(b) restore the acquittal as a bar to the person being tried for 21
the offence. 22
`(4) If the order is set aside, a further application may not be made 23
under this chapter division for the retrial of the accused person 24
in relation to the offence concerned. 25
`(5) At the retrial of an accused person, the prosecution is not 26
entitled to refer to the fact that the Court has found that it 27
appears that-- 28
(a) there is fresh and compelling evidence against the 29
acquitted person; or 30
(b) more likely than not, but for the commission of the 31
administration of justice offence, the accused person 32
would have been convicted. 33
s4 11 s4
Criminal Code (Double Jeopardy) Amendment Bill
2006
`Chapter division 3 Appeals on questions of law 1
`678I Directed jury acquittals 2
`(1) This section applies to the acquittal of a person by a jury at the 3
direction of the trial judge. 4
`(2) The Attorney General or the Director of Public Prosecutions 5
may appeal to the Court against an acquittal on any ground 6
that involves a question of law alone. 7
`(3) An appeal may be made-- 8
(a) within 28 days after the acquittal; or 9
(b) if the Court gives leave, after that period. 10
`(4) The accused person is entitled to be present and heard at the 11
appeal. 12
`(5) However, if the person has been given a reasonable 13
opportunity to be present, the appeal may be decided even if 14
the person is not present. 15
`(6) The Court may affirm or quash the acquittal appealed against. 16
`(7) If the acquittal is quashed, the Court may order a new trial in 17
such manner as the Court thinks fit. 18
`(8) For the purpose mentioned in subsection (7), the Court may, 19
subject to the Bail Act 1980, order the detention or return to 20
custody of the accused person in relation to the new trial. 21
`(9) If the acquittal is quashed, the Court may not-- 22
(a) proceed to convict or sentence the accused person for 23
the offence charged; or 24
(b) direct the court conducting the new trial to proceed to 25
convict or sentence the accused person for the offence 26
charged. 27
`(10) This section does not apply to a person who was acquitted 28
before the commencement of this section. 29
30
Note--
31
See section 669A(1A) for appeals against an order staying proceedings
32
or further proceedings on an indictment.
s4 12 s4
Criminal Code (Double Jeopardy) Amendment Bill
2006
`Chapter division 4 Miscellaneous 1
`678J Authorisation of police investigations 2
`(1) This section applies to any police investigation of the 3
commission of an offence by an acquitted person in relation to 4
the possible retrial of the person for the offence under chapter 5
division 2. 6
`(2) For the purposes of this section, a police investigation is an 7
investigation that involves, whether with or without the 8
consent of the acquitted person-- 9
(a) any arrest, questioning or search of the acquitted person, 10
or the issue of a warrant for the arrest of the person; or 11
(b) any forensic procedure carried out on the person or any 12
search or seizure of premises or property of or occupied 13
by the person. 14
`(3) A police officer may carry out or authorise a police 15
investigation to which this section applies only if the Director 16
of Public Prosecutions-- 17
(a) has advised that in the opinion of the Director of Public 18
Prosecutions the acquittal would not be a bar to the trial 19
of the acquitted person in this State for the offence; or 20
(b) has given written consent to the police investigation on 21
the application in writing of the commissioner, or a 22
deputy commissioner, of the police service. 23
`(4) The commissioner, or a deputy commissioner, of the police 24
service may make an application for the police investigation 25
only if satisfied that relevant evidence for the purposes of an 26
application for a retrial under chapter division 2 has been 27
obtained or is likely to be obtained as a result of the 28
investigation. 29
`(5) The Director of Public Prosecutions may give consent to the 30
police investigation only if satisfied that-- 31
(a) there is, or there is likely as a result of the investigation 32
to be, sufficient new evidence to warrant the conduct of 33
the investigation; and 34
s4 13 s4
Criminal Code (Double Jeopardy) Amendment Bill
2006
(b) it is in the public interest for the investigation to 1
proceed. 2
`(6) Despite the Police Service Administration Act 1990, section 3
4.10, the commissioner of the police service may not delegate 4
powers of the commissioner under this section to a police 5
officer or staff member. 6
`678K Bail 7
`(1) This section has effect despite anything to the contrary in the 8
Bail Act 1980. 9
`(2) There is a presumption in favour of bail for a person who is 10
charged with an offence for which a retrial is sought under 11
chapter division 2 until the application is dealt with. 12
`678L Restrictions on publication 13
`(1) A person must not publish any matter for the purpose of 14
identifying or having the effect of identifying an acquitted 15
person who is being retried under this chapter or who is the 16
subject of-- 17
(a) a police investigation, or an application for a police 18
investigation, mentioned in section 678J; or 19
(b) an application for a retrial under chapter division 2 or an 20
appeal under chapter division 3; or 21
(c) an order for retrial under this chapter. 22
`(2) Subsection (1) does not apply if the publication is authorised 23
by order of the Court or of the court before which the 24
acquitted person is being retried. 25
`(3) The relevant court may make an order authorising publication 26
only if the court is satisfied that it is in the interests of justice 27
to make the order. 28
`(4) Before making an order under this section, the Court must 29
give the acquitted person a reasonable opportunity to be heard 30
on the application for the order. 31
`(5) The Court may at any time vary or revoke an order under this 32
section. 33
s4 14 s4
Criminal Code (Double Jeopardy) Amendment Bill
2006
`(6) The prohibition on publication under this section ceases to 1
have effect, subject to any order under this section, when the 2
first of the following paragraphs apply-- 3
(a) there is no longer any step that could be taken which 4
would lead to the acquitted person being retried under 5
this chapter; 6
(b) if the acquitted person is retried under this chapter--the 7
trial ends. 8
`(7) Nothing in this section affects any prohibition of the 9
publication of any matter under any other Act or law. 10
`(8) A contravention of a prohibition on publication under this 11
section is punishable as contempt of the Supreme Court. 12
`678M Review of chapter 13
`(1) A review of the provisions of chapter 68 must be undertaken 14
as soon as practicable after the period of 5 years after their 15
insertion into this Act by the Criminal Code (Double 16
Jeopardy) Amendment Act 2006. 17
`(2) The report of the outcome of the review must be tabled in 18
Parliament within 12 months after the end of the period of 5 19
years mentioned in subsection (1). 20
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