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II. An exception to the rule against double jeopardy

1 HOW SHOULD THE LAW TREAT AN ACCUSED who has (or may have) secured acquittal of a serious crime by abusing the processes of justice? The Law Commission was asked by the former Minister of Justice to consider the case of Kevin Moore. In September 2000 we issued a discussion paper Acquittal Following Perversion of the Course of Justice: A Response to R v Moore which sets out the issues and options.[10] A number of helpful responses have contributed to the advice conveyed in this Report. (We have not examined the separate question, considered by the Law Commission for England and Wales in its 1999 Consultation Paper 156 Double Jeopardy,[11] whether the discovery of any significant new evidence might justify the reopening of an acquittal, even though it was not the result of misconduct by the accused. Despite the kind of hard case that can be visualised[12] we think it highly improbable that such a course could be justified in New Zealand.)

2 In May 1992 Mr Moore was tried with a fellow member 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 Mr Moore and his co-accused that may have led to their acquittal.[13] In August 1999 Mr 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.[14]

3 Mr Moore appealed his sentence. The Court of Appeal dismissed the appeal stating:

This offending falls squarely within the band or bracket comprising the worst class of cases under this section and therefore qualifies for the maximum term.[15]

4 A likely 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,[16] Mr Moore escaped conviction for an earlier crime of murder, which carries a minimum non-parole period of ten years or more.[17]


5 Mr Moore cannot be retried for the murder. New Zealand criminal law, following the common law, provides for the alternative verdicts of guilty and not guilty. If the verdict is not guilty, then save in two irrelevant classes of case,[18] there can never be a further prosecution for the same offence. That is because of a rule of law, called “the rule against double jeopardy”. The rule is restated in section 26 of the New Zealand Bill of Rights Act 1990 which provides:


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

6 Section 26(2) does no more than restate in an abridged form sections 357–359 of the Crimes Act 1961, which are reproduced in appendix A to this report and which prohibit retrial following acquittal or conviction. A retrial following acquittal is at present unknown in New Zealand save in two exceptional situations. The Crown may request the judge to state a case on an issue of law and a retrial may then be directed on appeal. In that case the accused well knows before the verdict is returned that an acquittal will be challenged.[19] A second, rare, instance may follow the setting aside on judicial review of an acquittal by a District Court.

7 By way of comparison, Article 20 of the Statute of the International Criminal Court (1998) is reproduced as appendix B to this Report.

8 New Zealand has acceded to the International Covenant on Civil and Political Rights (ICCPR) (1966). 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.

9 In its 1999 consultation paper the Law Commission for England and Wales said of Article 14(7):[20]

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), 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.

10 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.[21] Thus the retrial of a defective proceeding would not offend against Article 14(7) or section 26(2).

11 Section 5 of the New Zealand Bill of Rights Act 1990 provides a standard against which proposals for reform affecting section 26(2) 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.


Prevention of harassment

12 A fundamental purpose of the rule against double jeopardy, which terminates criminal litigation, is to prevent the 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 offence, 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.[22]

13 Any participant in the process of a criminal trial is familiar with the sense of relief that accompanies a verdict – that there has been an end to a process which may have been gruelling for all involved and even hideous in very different ways for the victim, the accused, witnesses and their families. Any proposal to reopen that process must recognise both the cost to the particular parties of such course and the effect on parties to other cases of the possibility that, despite the verdict, closure is incomplete.

The avoidance of inconsistency and securing finality of verdict

14 A consequence of the rule against double jeopardy is protection of 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 need to secure a conclusion of disputes concerning status has long been recognised.[23] The status conferred by acquittal is one of particular importance.

Increase of prospect of wrongful conviction; promotion of efficient investigation

15 The Law Commission for England and Wales in its 1999 consultation paper[24]added a further point:24

Black J, ... saw repeated trials as increasing the likelihood of wrongful conviction. For Friedland, this point “is at the core of the problem”, “[I]n many cases an innocent person will not have the stamina or resources effectively to fight a second charge”.[25] 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.

Of course a similar argument can be made in relation to a retrial where the jury has failed to agree.[26]

16 Another point, the promotion of efficient investigation preceding prosecution of the original trial, has obvious force.[27] Opportunity for the Crown to revisit its case after acquittal would provide perverse disincentives to getting it right at the outset.

17 All of these considerations are of significance not only to whether there should be limits to an exception to the double jeopardy rule but also to whether there should be any exception at all.

18 The Moore case raises two questions. First, does the current, absolute, form of the rule against double jeopardy bring the law into disrepute? Secondly, if it does, in what way should it be modified?

19 We have no doubt as to the former. This is not the simple case of the acquittal of someone whom there is reason to believe to be guilty. As already noted, that is the inevitable consequence wherever the Crown has failed to satisfy the jury that the accused’s guilt has been proved beyond reasonable doubt. The reason for particular concern about this case is that Mr Moore appears to have secured his acquittal by a further crime and so exacerbated his affront of one of society’s most fundamental laws – the prohibition against deliberate killing of another human – by infringing another. That is the rule, critical to the integrity of our judicial processes, that witnesses must give honest evidence and everyone must refrain from interfering with the procedures established for the honest administration of justice. The more difficult question is the latter – what balance should be struck in seeking to respond to such double criminality?

20 As was noted in the New Zealand Law Commission’s Preliminary Paper 42 and in the submissions we received, each option for dealing with the problem encounters difficulty:

(1) Any dilution of the double jeopardy rule tends to impair the important values that it protects.

(2) Responding by increasing the maximum sentence for an “administration of justice” crime would leave to judicial evaluation on sentence not only the gravity of the administration of justice offence but also the very determination of guilt of the earlier offence. Fact finding on truly fundamental issues – such as whether the accused committed the murder of which a jury previously acquitted him – should be for a jury not a judge. So while the question of whether increasing the current seven year maximum term may warrant consideration for other reasons, the superficially attractive option of doing so to deal with the present problem is not a wholly satisfactory response.

(3) The creation of a new offence of procuring a miscarriage of justice requiring proof both of the administration of justice offence and of its having succeeded in misleading the jury in the earlier trial would lead to complexity and effectively require the second jury to second guess the first.

(4) For the reasons given in paragraph 4 of this Report, leaving the current law unaltered leaves the offender incompletely punished in relation to the earlier offence.

21 The Crimes Act 1961 provides for the following crimes which are directed at conduct that interferes with the purity of the criminal process and may be called “administration of justice” offences, namely:[28]

• perjury (section 108);

• attempting or conspiring to obstruct, prevent, pervert or defeat the course of justice (section 116 and section 117(d));

• fabricating evidence (section 113);

• bribery of judicial officer (section 101);

• corruption and bribery of a law enforcement officer (section 104);

• corrupting juries and witnesses (section 117).

22 We regard the principled options as:

(1) leaving the current law unaltered; or

(2) permitting a limited departure from the principle of double jeopardy.

Of the further options, both that of a new offence of procuring a miscarriage of justice and that of increasing the penalty for such crimes – effectively requiring the sentencing judge to adjudicate that the original jury verdict of acquittal was wrong – are indirect forms of (2). Neither in our view is acceptable because they do not face the issue directly. Either the full enormity of the accused’s offending must be addressed by a head on challenge to the double jeopardy rule or the current law should remain unchanged.

23 The remaining question is which of options (1) and (2) is to be preferred.

24 The argument that the rule against double jeopardy should be given inflexible application is a substantial one, which has received a good deal of support from thoughtful respondents.

25 But there are countervailing factors. First, the virtue of a simple rule without exceptions is to be weighed against the cost of inadequate differentiation between different classes of case; reluctance to countenance any exception to an important principle needs to be considered in the light of the consequences of that course. An example in a closely related context is the history of the so-called rule in Sambasivam v Public Prosecutor, Federation of Malaya.[29] The House of Lords in R v Z,[30] this Commission in its Preliminary Paper 42 and the Court of Appeal of New Zealand in R v Degnan[31] all considered to be wrong the series of judgments[32] which applied the second sentence in the following statement of principle in Sambasivam:[33]

The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.

26 In each of the three analyses it was considered that the judgment in Sambasivam was in need of substantial qualification. The actual decision to set aside the conviction in that case has not been doubted, but has been justified on the basis that the conviction was manifestly inconsistent with the acquittal of an offence which arose from the same incident: R v Z.[34] But this did not require an unqualified rule that a verdict of acquittal “is binding and conclusive in all subsequent proceedings” between the same parties. In particular, the fact that an accused has been acquitted of an offence does not mean that evidence tending to establish guilt is not admissible as similar fact evidence supporting the inference that the accused was guilty of another offence which is later charged. The reception of such evidence allows the Crown implicitly to assert that the acquittal was erroneous. Nevertheless the evidence is admissible if it satisfies the principles governing similar fact evidence, subject to the discretion of the judge to exclude it on grounds of illegitimate prejudice or unfairness (which the mere fact of acquittal will not of itself establish). The alternative of automatically excluding such evidence has been seen to work greater injustice than a partial departure from the broad principle that an acquittal cannot be challenged.

27 Secondly, it is necessary in the present context to make a judgment about the relative consequences of retention and of partial departure from the current absolute rule against double jeopardy. The reasons for the rule have been stated at paragraphs 12–17. Those reasons are powerful. Nevertheless it is the Commission’s view that in the case of the double offender a limited exception to the rule is justified. Such an offender is in a very different position from an accused who, although guilty, has secured an acquittal without resorting to an administration of justice crime – which may entail threatening or bribing witnesses, or even interfering with the jury. In our view such conduct, if established, warrants a departure from the safeguard of the double jeopardy rule despite the disadvantage entailed. We therefore propose the second of what we regard as the principled options in paragraph 22.

28 We have given careful thought to the onus of proof. An accused may have been party to such conduct, but the Crown may not have clear evidence of this. Should the onus of proof on this issue be reversed?

29 We do not recommend such a reversal of the onus of proof. It would involve a significant widening of the proposed exception to the double jeopardy rule. It could give rise to oppression. There will be numerous cases where it is at least possible that an acquittal was the result of an administration of justice crime, but the bare possibility of this should not justify retrying the accused whenever the possibility is not disproved. Such a rule would gravely undermine the finality of the verdict.

30 We have also considered whether commission of an administration of justice crime at the first trial by a third party without the involvement of the accused should be sufficient to justify an application for retrial. There is a substantial argument in favour of that course – that the public interest in purity of the trial process is such that an acquittal secured because of, or perhaps simply following, breach of such interest should be susceptible of review at a further trial.

31 We do not however consider that in New Zealand such course is warranted. While interference with the administration of justice is always a matter of concern and sometimes of great gravity, in the case of an accused who has not been party to it such conduct is simply a fortuity for which that accused cannot be blamed.

32 The Law Commission for England and Wales[35] further proposed that convictions for perjury by the accused at the first trial, in distinction from another administration of justice crime, such as being party to perjury by another, should be an insufficient basis for application for retrial. We do not agree with this. It was argued that a trial is itself designed to expose perjury, in particular through cross-examination, and that perjury is thus different from other external attacks on the trial process. But this does not meet the point that the perjury is itself corrosive of the trial process. It also overlooks the Humphreys safeguard discussed in paragraphs 34 and 35 below.[36] If the accused is convicted of having perjured himself at the first trial, by evidence corroborated as required by the Crimes Act 1961 section 112, we see no public interest reason to insulate him from any retrial he would have undergone for persuading another to do likewise.

33 It is however to be emphasised that the current law does not permit a trial for perjury which consists of denial of an offence of which the accused witness is later convicted unless there is:

additional evidence which the Crown could not have had available using reasonable diligence at the time of the first trial.[37]

34 The reason is to avoid the risk of allowing the Crown, under the guise of a perjury trial, to put the accused in jeopardy a second time on the same evidence. We consider it desirable out of caution explicitly, in a stand alone provision dealing with when an acquitted accused can be prosecuted for perjury, to require compliance with that salutary rule of the common law as a condition of an application to retry on the grounds of a perjury conviction. It would require that the evidence resulting in the conviction include substantial[38] evidence which was additional to that called at the first trial and which the prosecution could not then have had available by using reasonable diligence.

35 Because of the importance of the double jeopardy rule and the consequences of any exception to it we would not countenance such exception except in the gravest cases. In chapter 2 we consider where the line should be drawn. Leave of the High Court would be required following conviction upon the crime of perjury or conspiracy to defeat the course of justice. The grounds for the application are considered in chapter 3.

36 We consider that the carefully restricted limitation we propose upon the Bill of Rights prohibition against double jeopardy conforms with the standard of section 5 of the New Zealand Bill of Rights Act 1990.[39]

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