[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

I. Preface

Both the rule and the extension were examined in the Law Commission’s Preliminary Paper 42 Acquittal Following Perversion of the Course of Justice: a Response to R v Moore (2000). We expressed the view, as earlier did the House of Lords in R v Z,[2] that the extension was unjustifiable. That conclusion has since been adopted by the Court of Appeal of New Zealand in R v Degnan.[3] While there has been some overseas support for the extension,[4] the submissions received in response to the Preliminary Paper suggest no justification for us to advise that New Zealand should by statute depart from the judgment in Degnan.

Our focus is therefore on the rule against double jeopardy following prior acquittal. For the reasons contained in this Report we confirm the fundamental importance of that rule. We recommend a limited and principled exception to it in cases where an accused has secured apparently unmerited acquittal in the most serious classes of case by perjury or other conduct designed to defeat the course of justice.

Our timetable has overlapped with that of the Law Commission for England and Wales whose report Double Jeopardy and Prosecution Appeals[5] was published this month. It responded to two references: one concerning recommendations of the Macpherson Report on the Stephen Lawrence Inquiry[6] that prosecution be permitted after acquittal where fresh and viable evidence is presented; the other whether the prosecution should be able to appeal an adverse ruling which may result in premature termination of the trial. That Commission recommends:

(1) that the Court of Appeal should have the power to set aside an acquittal for murder,[7] and genocide consisting in the killing of any person, thus permitting a retrial, only where there is compelling new evidence of guilt and the court is satisfied that it is in the interests of justice to quash the acquittal; and that the reform be retroactive;

(2) that in certain serious types of case the Crown should have the right to appeal against a ruling by the judge which has the effect of terminating the proceedings.

The latter recommendation is to the same general effect as that of this Commission in NZLC R66 Criminal Prosecutions[8] which cross-referred to the English Commission’s consultation paper.

In this Report we drew the line on the first issue at a different point from the English Commission. No case has been established in New Zealand for a “new evidence” exception to the rule against double jeopardy. Our first condition for a retrial is that the accused has committed an “administration of justice” offence. Nor is a case established for making the reform retrospective. The difficulties attending that course are seen in the judgments of the Court of Appeal in R v Pora.[9]