double jeopardy

double jeopardy

1. 220: indicates how the accused may enter a plea of previous aquital or previous conviction; re-enacts the substance of the pleas of autrfois aquit and conviict

2. R v Caroll

3. charter of human rights

   • 26; right not to be tried or punished more than once; a person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted/aquited in accordance w/ law
   • American bill of rights 5th amendment 'nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb'

4. autrefois aquit; is raiised where the defendent has been earlier aquited on the same charge. A variety of estoppel- crown is precluded from re-asserting the guilt of the accused when that q has previously been determined against

5. autrefois convict; is raised when the defendent has been convicted before on the same charge. akin to merger- crown is precluded from re-asserting the very same facts as in earlier proceedings which formed the basis of a conviction in which its rights have merged

6. qualification

   • 1) verdict on the defendent must have been passed, if no verdict made D can be tried again
     • discontinuance by prosecution; recall that the p can any stage before trial discontinue proceeding, if judge accepts the discontinuance, d is discharged. can be charged on same matter again
     • hung jury; if a verdict is not reached by jury then D can be tried again
   • 2) the plea of autrefois aquit only applies where an aquital was on the merits of the case; it does not apply where there was an acquital on technical errors, such as defect in the instituion of proceedings
   • 3) the rule against DJ has been abrograted by statute in relation to appeals- where an appeal by the accused has been successful, an appeal court has the stat power to quash the conviction and order a retrial (without the stat basis the retrial would raise autrefois aquit)

7. gives finality

   • connelly v DPP

8. amendment

   • to provide exception to the rule
     • chapter 7A CP act
       • previous aquital was tainted
         • 327; a) ther person or another person has been convicted of an administration of justice offence in connection w/ trial resulting in acquital & b) more likely than not that, had it not been for the commission of the admin of justice offence, the person would have been convicted of 1st mentioned offence
       • fresh and compelling evidence available
         • only applies to selected serious offences 327M
       • admin of justice offence occured
       • DPP must obtain authorisation from crt of appeal
         • 327H A) setting outside the previous aquital of the accused or removing the previous acquital as a bar to the accused being tried on the direct indictment and B) authorising the continuation of the prosectution of the charge in the indictement
           • 2) app must specify whether it is based on A) a tainted aquital....(as above)