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3 The Bill of Rights and the Covenant

50 SECTION 26 of the New Zealand Bill of Rights Act 1990 provides:

 Retroactive penalties and double jeopardy– ... (2) No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

51 The practical application of section 26 is elaborated by sections 357–359 of the Crimes Act 1961, which are reproduced in Appendix A.

52 By way of comparison, Article 20 of the Statute of the International Criminal Court is reproduced as Appendix B.

53 New Zealand has acceded to the International Covenant on Civil and Political Rights (ICCPR). Article 14(7) provides:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

54 In its recent consultation paper on double jeopardy the Law Commission for England and Wales said of Article 14(7):

Article 14 applies both to the reopening of a conviction and to the reopening of an acquittal. Read literally, it therefore prohibits even the power of an appellate court to quash a criminal conviction and to order a retrial if new evidence or a procedural defect is discovered after the ordinary appeals process has been concluded. In its General Comment on Article 14(7),²⁰ however, the United Nations Human Rights Committee, the treaty body charged with implementing the ICCPR, expressed the view that the reopening of criminal proceedings “justified by exceptional circumstances” did not infringe the principle of double jeopardy. The Committee drew a distinction between the “resumption” of criminal proceedings, which it considered to be permitted by Article 14(7), and “retrial” which was expressly forbidden.²¹

55 In this context ‘resumption’ contemplates a revisiting of a fundamentally defective proceeding; ‘retrial’ the exposure of an accused to a retrial where there has been no fundamental defect.²² Thus the retrial of a defective proceeding would not offend against Article 14(7) or section 26.

56 Section 5 of the New Zealand Bill of Rights Act 1990 provides a standard against which proposals for reform affecting section 26 may be measured:

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

We seek submissions on whether the principled exception to the previous acquittal rule contained in Option 5 is justifiable in terms of section 5.