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1 Introduction

1 THE COMMISSION WAS ASKED by the former Minister of Justice to consider and report on the case of Kevin Moore. In May 1992 Moore was tried with two fellow members of a New Plymouth gang for the murder of a member of a rival gang. A defence witness, a Mr M, gave alibi evidence in favour of Moore and his co-accused that may have led to their acquittal.¹ In August 1999 Moore was convicted of conspiracy to pervert the course of justice in relation to that evidence. The sentencing judge imposed the maximum term of imprisonment. In his remarks he stated:

A conspiracy to [per]vert the course of justice to avoid your rightful conviction for murder and a life sentence of imprisonment must be as serious as any that could be committed. It must call for a deterrent sentence. Even the maximum sentence of seven years imprisonment for the conspiracy cannot act as an appropriate deterrent for your crime as in all respects it is substantially less than the sentence you would otherwise have received. That maximum sentence is an encouragement to offenders like you to commit the type of conspiracy you committed. The law does not permit you to be retried for the murder you committed as you were acquitted of it because of your conspiracy. You escape the sentence of life imprisonment that should be the minimum you receive. Instead you receive a much lesser sentence ... The maximum sentence of seven years imprisonment is itself a very lenient sentence in your case when by your conspiracy you have literally got away with murder and avoided life imprisonment. To impose any lesser sentence would further benefit you in respect of the crime of conspiracy committed by you.²

2 Moore appealed his sentence. The Court of Appeal dismissed the appeal stating “[t]his offending falls squarely within the band or bracket comprising the worst class of cases under this section and therefore qualifies for the maximum term”.³

3 A very possible result was that, by reason of a second crime, conspiracy to pervert the course of justice, for which he is eligible to apply for release on parole after two years and four months,⁴ Moore escaped conviction for an earlier crime of murder, which carries a minimum non-parole period of 10 years or more.⁵

4 Moore cannot be retried for the murder because of the rule of law, enshrined in section 26 of the New Zealand Bill of Rights Act 1990 and expanded in sections 357 to 359 of the Crimes Act 1961, which prohibits retrial following acquittal or conviction. In this preliminary paper this rule is called ‘the rule against double jeopardy’. New Zealand criminal law, following the common law, provides for the alternative verdicts of guilty or not guilty. Whichever verdict is delivered, barring an appeal, there can never be a further prosecution for the same offence.

5 The broad purpose of the rule against double jeopardy is to prevent the unwarranted harassment of an accused by repeated prosecution for the same matter. It has been said that:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.⁶

6 The Law Commission for England and Wales, in its 1999 consultation paper Double Jeopardy, observed:

Black J, ... saw repeated trials as increasing the likelihood of wrongful conviction. For Friedland, this point “is at the core of the problem”, as “[i]n many cases an innocent person will not have the stamina or resources effectively to fight a second charge”.⁷ In England and Wales, lack of financial resources is not usually a serious problem for defendants in criminal cases because of the availability of legal aid. But the risk of wrongful conviction must be increased to some extent by any retrial. If it is accepted that juries do on occasion return perverse verdicts of guilty, the chance that a particular defendant will be perversely convicted must increase if he or she is tried more than once. Moreover, because there has already been one trial at which the defence has shown its hand, the prosecution may enjoy a tactical advantage at a second trial; and this will increase the likelihood of a conviction, whether the defendant is guilty or innocent.⁸

7 The broad effect of the rule against double jeopardy is to protect the administration of justice itself. By preventing harassment and inconsistent results it promotes confidence in court proceedings and the finality of verdicts. A clear corollary of the rule is that occasionally the guilty will escape punishment, but that is inevitable in any system of justice that must accommodate conflicting interests and finite resources. The question posed by Moore’s case is whether a situation in which the rule against double jeopardy may itself be seen to bring the law into disrepute should remain unchanged.

8 There are a number of arguments that can be raised in support of narrowing the double jeopardy rule in specific respects, and there are limits to the extent to which acquittal can sensibly be equated with innocence for every purpose. A verdict of not guilty may be reached for reasons other than the innocence of the accused, including:

• the Crown has failed to satisfy its burden of proving guilt beyond reasonable doubt;
• witnesses have given false evidence;
• jurors have been suborned.

9 Because the function of the courts is to decide cases rather than to attempt coherent general reform of the law, the decided cases contain no broad appraisal of how the competing interests should be reconciled in a systematic fashion. The fundamental question for us is how New Zealand law should weigh the high public interest that the verdict should provide a definitive conclusion to a case following acquittal, against the competing public interest in bringing wrongdoers to justice.

10 The purpose of this preliminary paper is to identify the issues, to offer provisional views upon them, and to invite public comment on and criticism of both.

11 The issues may be broadly summarised as:

(1) How does New Zealand law deal with the case where an acquittal is alleged to have been secured following some perversion of the course of justice?

(2) Is that law satisfactory?

(3) If not:

• What options warrant consideration?
• What are their implications?

12 In addition to the rule against double jeopardy, there are related principles developed by the courts to protect a verdict of acquittal from subsequent attack. These were relevant in Moore’s trial for conspiracy to pervert the course of justice, and are discussed in Chapter 4.