The Law Reform Commission of Hong Kong

Report

Double Jeopardy

This report can be found on the Internet at:

http://www.hkreform.gov.hk

February 2012

The Law Reform Commission of Hong Kong was established by the Executive Council in January 1980. The Commission considers for reform such aspects of the law as may be referred to it by the Secretary for Justice or the Chief Justice.

The members of the Commission at present are:

Chairman: Mr Wong Yan-lung, SC, JP, Secretary for Justice

Members: The Hon Chief Justice Geoffrey Ma

Mr Eamonn Moran, JP, Law Draftsman

Mr John Budge, SBS, JP

The Hon Mr Justice Patrick Chan, PJ

Mrs Pamela Chan, BBS, JP

Mr Anderson Chow, SC

Mr Godfrey Lam, SC

Ms Angela W Y Lee, BBS, JP

Mrs Eleanor Ling, SBS, JP

Mr Peter Rhodes

Professor Michael Wilkinson

The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at:

20/F Harcourt House

39 Gloucester Road

Wanchai

Hong Kong

Telephone: 2528 0472

Fax: 2865 2902

E-mail:

Website: http://www.hkreform.gov.hk

The Law Reform Commission

of Hong Kong

Report

Double Jeopardy

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CONTENTS

Chapter / Page /
Preface / 1
Terms of reference / 3
The sub-committee / 3
Public consultation / 4
Layout of the report / 4
Acknowledgements / 4
1. The rule against double jeopardy / 6
The rule against double jeopardy / 6
The autrefois doctrine: the pleas of autrefois acquit and autrefois convict / 7
Relevant statutory provisions and cases in Hong Kong / 8
Prerequisites for a plea of autrefois acquit or autrefois convict / 9
The same offence / 10
At risk of conviction; a valid verdict / 13
A final verdict / 14
Stay of proceedings / 16
Procedure for making an autrefois plea / 20
Conviction or acquittal by a foreign court / 21
2. Should the rule against double jeopardy be reformed? / 23
Justifications for the rule against double jeopardy and counter-arguments / 24
(a) Avoids the repeated distress of the trial process / 24
(b) Reduces the risk of a wrongful conviction / 25
(c) Promotes finality in the criminal justice system / 25
(d) Encourages the efficient investigation of crime / 26
Arguments in favour of reform / 27
Constitutional and human rights implications / 28
England and Wales / 29
New Zealand / 30
South Africa / 30
Other commentaries on Article 14(7) of the ICCPR / 31
Should the rule against double jeopardy be reformed? / 38
3. Relaxing the rule against double jeopardy / 43
Exceptional circumstances that warrant the relaxation of the rule / 45
Australia: New South Wales / 45
Australia: Queensland / 45
England and Wales / 46
Retrial of a "qualifying offence" where there is "new and compelling evidence" / 46
Retrial where there has been a tainted acquittal / 49
New Zealand / 50
The Crimes Act 1961 / 50
Recent reforms / 50
Discussion and conclusions / 51
(a)  The grounds for relaxation of the rule against double jeopardy / 52
(b) The types of offences to which the relaxation applies / 54
(c) Definition of the relevant terms / 61
Discussion and conclusions / 69
Measures to prevent abuses / 77
Australia: New South Wales / 77
Australia: Queensland / 78
England and Wales / 78
New Zealand / 81
Discussion and conclusions / 82
The mechanism for making an application to quash an acquittal / 84
Forum and the time limit for the application / 84
Number of applications / 85
Whether there should be an appeal channel in relation to any decision on an application for quashing an acquittal / 87
Time limits for commencing a retrial after an order for retrial / 88
Restrictions on publication and other safeguards / 90
Australia: New South Wales / 90
Australia: Queensland / 91
England and Wales / 91
New Zealand / 92
Discussion and conclusions / 93
Powers of investigation after acquittal / 100
Australia: New South Wales / 100
Australia: Queensland / 101
England and Wales / 101
Ireland / 104
New Zealand / 104
Discussion and conclusions / 105
Retention of exhibits for a possible retrial / 108
Hong Kong / 108
The Criminal Procedure Ordinance (Cap 221) / 108
The Police Force Ordinance (Cap 232) / 109
The Independent Commission Against Corruption Ordinance (Cap 204) / 110
England and Wales / 110
Australia / 112
Discussion and conclusions / 112
Scope of application of the relaxation / 117
Miscellaneous / 120
4. Summary of recommendations / 124
Annex A / 131
Responses to consultation paper on Double Jeopardy / 131
Annex B / 132
Snapshot of responses to Recommendation 1 / 132
Annex C / 133
Statutory provisions that provide for offences punishable by 15years' imprisonment or more / 133

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Preface

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1. The rule against double jeopardy stipulates that "no-one may be put in peril twice for the same offence."[1] If a person has been previously acquitted or convicted of an offence and is later charged with the same offence, the rule against double jeopardy will apply to bar the prosecution.[2] The rule is grounded on the notion that a person who has undergone the ordeal of a criminal trial should be left undisturbed following the final verdict, either to go on to lead a normal life if acquitted or to face the appropriate punishment if convicted.

2. While the rule against double jeopardy provides certainty and a conclusion for the individual who has been tried, from the community's point of view the question arises as to whether a person should be allowed to escape justice when new evidence, of sufficient strength, has emerged subsequent to his acquittal which points to his guilt. Rapid developments in recent years in forensic science and DNA testing have highlighted these concerns and changes to the law have been proposed or adopted in a number of jurisdictions.

3. In Australia, the inability in the case of R v Carroll[3] to prosecute a person previously charged with and acquitted of murdering a baby girl was instrumental in prompting legislative change. The case concerned the murder in Queensland in 1973 of a 17-month old baby girl. The murder trial started in 1985. The key issue at the murder trial was one of identification and there was inconsistent expert testimony as to the identity of the person responsible for the bite-marks found on the baby's leg. Carroll was found guilty of murder but acquitted on appeal. By 1999, however, new evidence (in the form of a confession from Carroll to an inmate whilst he was in custody for the original trial, and improved expert evidence on the dental imprints found on the baby's leg) revealed that Carroll was responsible for the baby's death, but he could not be charged again with murder as he had been previously acquitted of that charge. Carroll was instead charged with, and convicted of, perjury on the basis that the new evidence showed that his testimony at the murder trial had been untrue. However, the perjury conviction was set aside on appeal on the basis that the perjury prosecution inevitably sought to controvert the earlier acquittal on the murder charge. The Crown then appealed to the High Court of Australia against the decision in the perjury case. The High Court ruled that the conviction of Carroll for perjury, where the alleged perjury was Carroll's denial on oath that he had killed the baby girl, was in direct conflict with the determination of the Court of Criminal Appeal in acquitting Carroll on the charge of murder, and on common law principles the trial judge should have stayed the perjury charge as an abuse of process.[4] The Crown's appeal was therefore dismissed. It should be noted that the occasion has not yet arisen in Hong Kong for the courts to consider similar factual circumstances. Hence, the reasoning in the Carroll case has not yet been tested in Hong Kong.

4. The Carroll case led to widespread demands in Australia for reform of the double jeopardy law. In New South Wales, the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 now makes it possible for an acquitted person in New South Wales to be retried for serious offences under the Crimes (Appeal and Review) Act 2001. In Queensland, the Criminal Code (Double Jeopardy) Amendment Act 2007 amended the Criminal Code by adding a new chapter providing exceptions to the double jeopardy rule. The effect is that an acquitted person may now be retried for murder or where there has been a "tainted acquittal" in respect of an offence for which the maximum sentence is 25 years' imprisonment.

5. In England and Wales, the law against double jeopardy has been amended on two occasions. The first amendment was made by the Criminal Procedure and Investigations Act 1996 which provides for the retrial of an acquitted person in respect of a "tainted acquittal" involving a fundamental defect in the previous proceedings that could affect the outcome of the case. More recently the law was amended by the Criminal Justice Act 2003, which came into operation in April 2005. The result of this amendment is that, in relation to certain serious offences classified as "qualifying offences", the prosecution may now apply to the Court of Appeal to quash an acquittal and to order the acquitted person to be tried again for the same offence. Since the passing of the 2003 Act there have been a number of applications to the Court of Appeal to quash a previous acquittal and for an order to retry the acquitted person on the basis of new evidence.[5] The Court of Appeal has granted some of the applications[6] and refused the others.[7]

6. In New Zealand, new sections 378A to 378F were inserted into the Crimes Act 1961 in June 2008 providing for the retrial of previously acquitted persons. Ireland, Scotland, South Australia and Tasmania have also relaxed the rule against double jeopardy. This will be further discussed in Chapter 3.

Terms of reference

7. In January 2006, the Secretary for Justice and the Chief Justice referred the topic of double jeopardy to the Law Reform Commission for consideration. The terms of reference for the project are:

"To examine the protections against double jeopardy found in the present law, particularly in relation to autrefois acquit, autrefois convict and stay of proceedings, and to recommend such changes in the law as may be thought appropriate."

The sub-committee

8. A sub-committee was appointed in May 2006 to consider and advise on the present state of the law and to make proposals for reform. The members of the Double Jeopardy Sub-committee are:

Mr Paul W T Shieh, SC
(Chairman) / Senior Counsel
Mr Derek Chan / Barrister
Mr David Leung / Senior Assistant Director of Public
Prosecutions
Department of Justice
Dr Gerard McCoy, QC, SC / Senior Counsel
Mr Christopher Morley / Solicitor
Mr Ng Kam Wing
(up to 11January 2009)
Mr Stephen Cheng Se-lim (from12 January 2009) / Chief Superintendent of Police
Hong Kong Police Force
Chief Superintendent of Police
Hong Kong Police Force
Mr Tsui Pui / Chief Chemist (Drugs, Toxicology
& Documents Group)
Forensic Science Division
Government Laboratory
Mr Simon Young / Associate Professor
Faculty of Law
University of Hong Kong
Mr Peter Sit / Secretary to the sub-committee
(until Feb 2008)
Mr Byron Leung / Secretary to the sub-committee
(from March 2008)

Public consultation

9. The sub-committee issued a consultation paper containing its recommendations for reform in March 2010. The consultation period officially ended on 31 May 2010, but was extended in response to requests from a number of those whose views had been sought. A total of 22 written responses were received to the consultation paper and a list of those who responded can be found at Annex A to this report.

Layout of the report

10. This report sets out in Chapter 1 the nature of the rule against double jeopardy and how it operates in Hong Kong. Chapter 2 examines the arguments for and against the rule, and addresses the constitutional and human rights concerns in relaxing the rule. Chapter 3 looks at the existing law and proposals for reform in other jurisdictions, and considers various options before making a number of recommendations for the relaxation of the rule. Chapter 4 contains all our recommendations for reform.

Acknowledgements

11. We wish to express our particular thanks to the following persons whose replies to the sub-committee's Secretary have proved invaluable.

Miss Alix Beldam / Senior Legal Manager
Criminal Appeal Office
Royal Courts of Justice
England & Wales
Miss Amanda Bowring / Domestic Affairs Division
Crown Prosecution Service
England & Wales
Mr Nicholas Cowdery AM, QC / Director of Public Prosecutions
New South Wales
Mr Roger Daw / Director of Policy
Crown Prosecution Service
England & Wales
Mr T J Ellis SC / Director of Public Prosecutions
Tasmania
Mr Stephen Pallaras QC / Director of Public Prosecutions
South Australia
Mr Terry Ryan / Assistant Director-General
Department of Justice and Attorney-
General
Queensland
Miss Karen Squibb-Williams / Strategic Policy Adviser
Strategy and Policy Directorate
Crown Prosecution Service
England & Wales
Mr Gareth Williams / Policing Powers and Protection Unit
Home Office
England & Wales

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