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13 THE SPECIAL PLEAS OF AUTREFOIS ACQUIT and autrefois convict prohibit retrial on the same or substantially the same charge following acquittal or conviction, unless the verdict is vacated on appeal. They are of ancient origin and in New Zealand they are codified in sections 357–359 of the Crimes Act 1961 as the special pleas of previous acquittal and previous conviction.9 These defences are unlike other related principles in that so long as the verdict subsists they bar further proceedings even though there is previously unavailable evidence showing that the verdict was procured by fraud.
14 It is the availability of the defence of previous acquittal that means that Moore cannot be tried again for murder. In this chapter we discuss the various options to resolve the dilemma posed by Moore’s case.
15 We have considered the following options:
(a) maintain the status quo;
(b) increase the maximum sentence for perjury and related crimes;
(c) create a crime of aggravated perjury/conspiracy to pervert justice containing additional elements;
(d) abandon the double jeopardy rule altogether;
(e) create a principled exception to the double jeopardy rule.
16 Current law prevents Moore from being tried again for murder.
17 The main reason for maintaining the status quo is that it is the most certain way to ensure continued recognition of the rule against double jeopardy (and the principles behind it). Any exception would be an exception to what has up to now been an axiom of existing procedural protections.
18 A further factor in favour of the status quo is that there will be a limited number of cases where a person is able to secure an unmerited acquittal by his or her own perjury or that of another. In cases where such an acquittal does occur, the present maximum penalty of seven years for perjury or conspiring to pervert the course of justice is adequate for the majority of crimes. It is only in relation to the most serious crimes (such as murder and sexual violation) that the penalty currently available to a sentencing Judge is inadequate.
19 Against that are factors that point towards the need for a change to the status quo. Public confidence in the administration of justice is likely to be undermined when offenders are permitted to benefit from their own abuse of the criminal justice system. The current law may be thought to be an inadequate deterrent for perjury or conspiracy to mislead the court and thereby pervert justice.
20 Yet whatever the penalty for perjury, there has always been an incentive to resort to it rather than face conviction and sentence for any crime. That is why under current law a perjury prosecution following an acquittal, where there is no new previously unavailable evidence, is regarded as an abuse of process, because it is a poorly shielded attempt to circumvent the double jeopardy rule.10 There is nothing new about Moore’s case; it is simply one where the fact and apparent result of the perjury are particularly pronounced.
21 The Law Commission seeks submissions on whether any change of the present law is necessary.
22 A logical question is whether an increase in penalties for perjury and other crimes affecting the administration of law and justice would provide a wider range of sentencing options for the trial judge. The temptation to pervert the course of justice may be diminished if penalties are increased adequately.
23 Increasing the maximum sentence to meet such cases could be seen as permitting sentencing on the basis that the charge avoided by acquittal was in fact proved. There is a dilemma. Either the sentence would be imposed on the basis that the original crime had been committed, thus disregarding the acquittal, or there would be fundamental uncertainty as to the principles that the court should apply.
24 Because crimes against the administration of justice are by definition non-violent offences, parole (under section 89 of the Criminal Justice Act 1985) will be considered after a prisoner serves one-third of the sentence imposed, instead of 10 years if the conviction avoided is of a serious violent offence. That conflicts with the notion that the offender should not obtain any benefit from deliberately misleading the court.
25 We seek submissions on:
(a) whether the penalties for perjury and other crimes against justice should be increased;
(b) whether there should be amendment to section 89 of the Criminal Justice Act 1985 so that a person convicted of a crime against justice will no longer be eligible for release on parole after the expiry of one-third of the sentence.
26 A crime of aggravated perjury/conspiracy could be created requiring proof that either:
(i) the accused secured acquittal by perjury/conspiracy; or
(ii) the accused enhanced the prospect of acquittal by reason of the perjury/conspiracy.
27 The advantages of creating a new crime largely overlap with the benefits to be derived from increasing the maximum sentence for existing offences. Rather than creating uncertainty as to the principles for sentencing, the addition of elements to create an aggravated offence would reflect the added culpability of offenders who obtain, or seek to obtain, acquittal through their wrong-doing.
28 There are, however, significant arguments against both proposals in paragraph 26.
29 In relation to the former, an additional ingredient requiring proof of acquittal by reason of perjury would introduce an element of materiality that does not currently exist. A causation requirement would place an onerous evidential requirement, effectively requiring the jury to speculate as to how the original jury would have responded to the further evidence.
30 In relation to the latter (merely enhancing the prospect of acquittal), disadvantages include:
31 We seek submissions as to whether there is a need for the creation of new crimes of ‘aggravated perjury’ and/or ‘aggravated conspiracy to pervert the course of justice’. If so, what should the elements of each offence be?
32 There is a logical question whether the previous acquittal rule should be abolished.
33 We think it inconceivable that in New Zealand simple repeal of the previous acquittal rule could be justified. It is enshrined as a basic right in section 26(2) of the New Zealand Bill of Rights Act 1990, which itself reflects New Zealand’s international human rights obligations.11
34 Abolition of the previous acquittal rule would weaken fundamental protections for the individual against the oppressive exercise of State power.
35 Our provisional preference is either to maintain the status quo (Option 1) or to create a principled exception to the previous acquittal rule.
36 A coherent argument can be advanced in favour of an exception. The principal purpose of the double jeopardy rule is to prevent prosecutorial harassment of defendants through repeated trials for the same offence. The underlying purpose of punishing crimes against the administration of justice is to preserve the authority of the courts and to ensure the effective administration of justice. By intentionally misleading the court, or otherwise perverting the course of justice and securing acquittal, an individual deliberately destroys a fundamental objective of the justice system: to conduct an untainted trial. Should such a person then obtain the protection of the double jeopardy rule and the interests it promotes? Some form of an exception to the rule may be less objectionable when viewed this way. An accused can reasonably expect to be subjected to the criminal prosecution system only once for an offence, provided he or she has not deliberately perverted the first process.
37 An advantage of this reform option is intellectual coherence. It squarely confronts the double jeopardy rule and seeks to balance the rights which that rule protects with the interests encompassed by the untainted administration of justice.
38 However, there are disadvantages. If that approach were taken, three trials of the relevant facts could be required (that is, the original trial at which the defendant was acquitted, the crime against justice trial, and the retrial of the substantive charge). Are three trials justified, bearing in mind the stress on witnesses, cost, and the rarity of this kind of case?
39 To consider this option requires appraisal:
40 Crimes that interfere with the purity of the criminal process are:
41 A threshold consideration is that at many trials conflicting evidence will be given. The purpose of the trial process includes securing a definitive result. Unless there is important new and previously unavailable evidence,12 it would be oppressive if a mere assertion of perjury at the original trial were sufficient basis for a second trial – of whether perjury had occurred – let alone a retrial of the original charge.
42 The safeguard of section 112 of the Crimes Act 1961 goes some way to meet the point:
No one shall be convicted of perjury, or of any offence against section 110 [false oaths] or section 111 [false statements or declarations] of this Act, on the evidence of one witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the accused.
43 If Option 5 is adopted, a similar corroboration requirement could be extended to the other relevant crimes. We seek submissions on the point.
44 It would be impracticable to require the Crown to prove that the acquittal resulted from the relevant crime. To do so may be impossible without calling the jurors from the first trial. It is, in our view, enough that the relevant crime is proved. Its commission must almost inevitably have tended to contribute to the acquittal; it is impracticable to cater for any rare case in which it did not.
45 The United Kingdom Parliament has adopted a ‘tainted acquittal’ procedure. ‘Tainted acquittal’ is described in the Double Jeopardy consultation paper of the Law Commission for England and Wales as follows:
The Criminal Procedure and Investigations Act 1996 provided for the first time a procedure by which a person could be retried for an offence of which he or she had already been acquitted, if the acquittal was “tainted”.13 This procedure is available where:
(a) a person has been acquitted of an offence, and
(b) a person has been convicted of an administration of justice offence14 involving interference with or intimidation of a juror or a witness (or potential witness) in any proceedings which led to the acquittal.15
If these conditions are met, and it appears to the court before which the person was convicted that there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted, and that it would not be contrary to the interests of justice to take proceedings against the acquitted person for the offence of which he or she was acquitted and the court certifies that this is so, an application may be made to the High Court for an order quashing the acquittal.16
The High Court may then make an order under section 54(3) of the Act quashing the acquittal, but only if:
(1) it appears to the High Court likely that, but for the interference or intimidation, the acquitted person would not have been acquitted;
(2) it does not appear to the court that, because of lapse of time or for any other reason, it would be contrary to the interests of justice to take proceedings against the acquitted person for the offence of which he or she was acquitted;
(3) it appears to the court that the acquitted person has been given a reasonable opportunity to make written representations to the court; and
(4) it appears to the court that the conviction for the administration of justice offence will stand.
Where the High Court quashes the acquittal under section 54(3), new proceedings may be taken against the acquitted person for the offence of which he or she was acquitted.17
46 The Law Commission for England and Wales has stated that, in its view, the tainted acquittal procedure is justifiable in principle. That Commission has proposed that the tainted acquittal procedure should be extended to apply to interference with, or intimidation of, a judge or magistrate. It has also recommended that the requirement of a conviction for an administration of justice offence should be done away with and that it should instead be a requirement that the High Court be satisfied (to the criminal standard of proof) that an administration of justice offence has been committed.18 On that approach there would be two jury trials and one determination by judge alone.
47 Our tentative view is that, in order for the Crown to sustain a retrial, an accused should first be convicted of perjury, attempt or conspiracy to defeat the course of justice, or another of the crimes listed in paragraph 41 in relation to the trial at which he or she was previously acquitted and the Crown would then obtain leave from the court for the retrial. The essential difference between this proposal and that of the Law Commission for England and Wales is that it requires guilt of the administration of justice offence which justifies retrial of the original charge to be determined by a jury rather than by a High Court judge.
48 We seek submissions as to whether an exception to the previous acquittal rule should be created. If so, what form should it take? Should a jury or a High Court judge decide whether the acquitted person is guilty of the crime against justice?
49 Because the change will be substantive, substantially affecting the position of persons to whom it applies,19 the new regime should apply only to misconduct at trials held after any reform comes into effect.
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URL: http://www.nzlii.org/nz/other/nzlc/pp/PP42/PP42-2.html