Double Jeopardy

The Rules:

Double jeopardy has been in existence for 800 years. The rule is that a person can not be tried more than once for the same offence, if that person has been acquitted the first time, even if new evidence has been found later, proving the person’s guilt.

There are good reasons for this: a person should not be put through the ordeal and expense time and time again after being tried by the courts and subjected to the legal justice system.

What brought the change:

In 1990, the murders of three Aboriginal children in the space of five months from Bowraville, a town of NSW shook the entire nation. The bodies of 16-year old Clinton Speedy Duroux and 4-year old Evelyn Greenup were found separately in bushland near the town. The body of the third 16-year old child Colleen Walker has never been found and later she was ruled dead by a Coroner.

Mr Jay Hart was charged and stood trial in 1994 for the murder of Clinton and in 2006 for the murder of Evelyn, but due to lack of evidence was acquitted both times.

The problem was the murders were tried separately and it is believed that evidence possibly linking the murders was not considered by the court.

The Bowraville community, with the support of NSW Police, has long pushed for Mr Hart to be re-tried for the offences in the wake of changes to evidence law, but have encountered legal and political hurdles along the way, mostly notably questions about double jeopardy legislation.

Finally, in 2006 NSW Parliament being the first of all states, passed new laws paving the way for an end to the long-standing legal rule which prevents people being put on trial twice for the same crime. The laws for double jeopardy were changed allowing a suspect to be retried if “fresh and compelling” evidence come to light.

Section 100(1) of the Crimes (Appeal and Reviews) Act empowers the NSWCCA to ‘order an acquitted person to be retried for a life sentence offence if satisfied that:

• there is fresh and compelling evidence against the acquitted person in relation to the offence, and
• in all the circumstances it is in the interests of justice for the order to be made’.

Retrials of serious cases, such as murder, manslaughter or gang rape carrying a sentence of 20 years or more, will now be allowed if fresh or compelling evidence can be produced.

Finally, the Bowraville murder cases will be heard in the Court of Criminal Appeal which will rule on whether the original acquittals should be quashed and the new charges should be allowed to proceed, giving the families of Evelyn, Clinton and Colleen a hope of closure.

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