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IV. Grounds of application

44 WE HAVE PROPOSED as conditions to an application to reopen:

• the accused must have been convicted of an administration of justice crime;

• the crime of which the accused was originally acquitted must carry a penalty of 14 years imprisonment or more.

45 We further propose:

• that the High Court alone have jurisdiction to consider an application;

• that it must be satisfied that:

– the accused has been convicted of an administration of justice crime;

– it is more likely than not[44] that, but for the administration of justice crime, the acquitted person would not have been acquitted;

– the prosecution has acted with reasonable despatch since discovering evidence of the administration of justice offence;

– the acquitted person has been given a reasonable opportunity to make written or oral submissions to the Court;

– no appeal or other application to set aside the administration of justice conviction remains undisposed of;

– it would not, because of lapse of time or for any other reason, be contrary to the interests of justice to take proceedings against the acquitted person for the crime of which he or she was acquitted.[45]

46 The term “substantial” is used in other criminal and related statutory contexts.[46] We consider that it provides the judge with adequate guidance as to the common law requirement of the extent of new evidence required to justify a perjury trial.

47 The term “likely” is one that requires comment. It can in some contexts connote “more likely than not”; in others it may signify a real or significant risk.[47] We are of the view that in the present context the former sense is appropriate and should be made explicit.

48 The reform will leave intact the rule against double jeopardy following prior acquittal save:

(1) in the most serious classes of case;

(2) where the acquittal is proved to have been secured by the accused’s criminal interference with the administration of justice.