23 March 2024

Double jeopardy law in Australia

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Double jeopardy is a criminal law principle that prevents an individual from being tried again for the same offence.
Australia Litigation, Mediation & Arbitration
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In Australia, double jeopardy laws have evolved through significant reforms to balance the rights of the accused and ensure the prosecution are able to re-agitate proceedings where appropriate.

The principle is intended to protect the rights of individuals by ensuring that the criminal justice system does not abuse its power. However, some have argued that it can – in some cases – obstruct justice by preventing a person from being retried for a crime they may be guilty of.

The only exception to the double jeopardy rule is if the case has fresh and compelling evidence that compels a Court to order a retrial if it is in the interests of justice.

There are some key cases which explore the limitations of this exception and the circumstances under which defendants may be re-tried.

What is Double Jeopardy?

Double jeopardy is a criminal law principle that prevents an individual from being tried for the same offence after being acquitted or convicted.

This rule was created to ensure that people who are found not guilty of a crime will not be charged over the same allegations in the future. This is in line with the principle of finality which sets out that once a case has been determined by a court, it should not be reagitated.  

It is important to understand that double jeopardy only applies to the prosecution of a specific allegation. It does not prevent other allegations from being heard by a court.  

For example, if you were charged with robbery in 2018 and the court determined you were not guilty, then you cannot be charged for that same robbery again at a later time.

However, if police allege that you committed a different robbery offence, the principle of double jeopardy would not apply and you could be charged.

The Rule against double jeopardy originated from three related principles of legal theory:

  1. The ancient doctrines of autrefois acquit (previously acquitted) and autrefois convict (previously convicted). These doctrines allowed the defendant to claim that they had been previously acquitted or convicted for the same offence and should not be tried again;
  2. The Rule that a person should not be tried for a second time if the facts and evidence are substantially the same; and
  3. That the Court can act to prevent prosecution if the result is an unfair trial

When Does Double Jeopardy not Apply?

The exception to double jeopardy is that there must be fresh and compelling evidence against the defendant for an offence that carries life imprisonment and in all the circumstances a retrial is in the interests of justice.

The Crimes (Appeal and Review) Act  2001 ('the Act') was amended to allow the New South Wales Court of Criminal Appeal (NSWCCA) to retry acquitted persons if the Director of Public Prosecutions (DPP) was able to show "fresh and compelling evidence."

Section 100(1)  of the Act allows the NSWCCA to order an acquitted person to be retried for a life sentence criminal offence if satisfied that:

  1. There is fresh and compelling evidence against the acquitted person, and
  2. In all circumstances, it is in the interest of justice for the order to be made.

The term 'life sentence criminal offence' includes the following crimes:

  • Murder
  • Large commercial drug supply
  • Aggravated sexual assault in company
  • Sexual intercourse with a child under 10
  • Several terrorism offences

Section 100  of the Act also extends the exception of double jeopardy to situations where a person has been tried and acquitted of manslaughter. However, it does not include situations where a person was initially charged with murder and then convicted of manslaughter or another lesser offence. 

Section 102  of the Act defines the terms 'fresh' and 'compelling.'

Section 102(2)  of the Act explains that evidence is fresh if:

  1. It was not adduced in the proceedings in which the person was acquitted, and
  2. It could not have been adduced in those proceedings with the exercise of reasonable diligence.

Section 102(3)  of the Act provides that evidence is compelling if:

  1. It is reliable, and
  2. It is substantial, and
  3. In the context of the issues in dispute in the proceedings in which the person was acquitted, it is highly probative of the case against the acquitted person.

Section 102(4)  clarifies that evidence is not prevented from being 'fresh and compelling' because it was inadmissible in the earlier proceedings.

Double Jeopardy Cases Australia

Australia's leading double jeopardy case was  R v Carroll  [2002] HCA 55. The brief facts of this case are as follows. In 1973, Raymond John Carroll kidnapped a 16-month-old named Deidre Kennedy from her family home. It was alleged Deidre was sexually abused, strangled and then abandoned on the top of a portable toilet roof.

Carroll was charged with this crime and found guilty twice. He appealed the findings of guilt successfully on both occasions based on the double jeopardy principle. At the time, there was no exception to the double jeopardy rule.

In 2007, amendments were made to legislation to introduce exceptions to the double jeopardy rule. These amendments meant that violent crimes like murder and sexual intercourse with a child under 10 could be subject to a retrial if the provisions of the Act were met.

Double Jeopardy Example

An example of double jeopardy is the case of  Frits George Van Beelen v The Queen [2017] HCA 48 In that case,the High Court of Australia considered the meaning of 'compelling.'

Mr Frits Van Beelen was found guilty on 19 October 1972 of murdering a 15-year-old girl on 15 July 1971. The prosecution presented evidence that the victim was last seen alive running down a track leading to the beach at around 4pm on 15 July 1971.

Her body was found buried under seaweed on the beach at 4:20am the following day. An autopsy suggested that she had been drowned to death and then sexually assaulted.

Mr Van Beelen was one of the few people on the beach at the time of Deborah's disappearance and some of the fibres on his sweater were attached to the fibres on the victim's singlet.

Dr Colin Manock, a director of forensic pathology, examined Deborah's body at 5am on the 16th of July 1971. He did not measure body temperature because it had been raining and he thought there was no utility in doing so. It is important to note that in forensics, using body temperature to estimate the time of death is considered the gold standard.

In his evidence, Dr Manock stated that the time of death could not have been later than 4:30pm. He made this approximation by relying on the time and the contents of the victim's last meal and the state of that meal at the time of the examination. There was evidence that Mr Van Beelen was at the beach at 4:30pm.

Mr Van Beelen successfully appealed this conviction, which led to a retrial. A second jury returned a guilty verdict on 12 July 1973. Mr Van Beelen then sought a third trial where he relied on 'fresh and compelling' evidence.

The evidence was contained in a report by Professor of Medicine Michael Horowitz. Professor Horowitz stated that estimates of death based on stomach contents are "unequivocally highly erroneous." This meant that the time of death provided by Dr Manock at the previous trials were invalid.

The High Court determined that this evidence passed the Section 102(2)  test and was fresh evidence. It also deemed that the evidence was of real significance since the time of death was an issue in the trial and it was in the interests of justice to consider that evidence.

However, the High Court ultimately refused Mr Van Beelen's appeal on the basis that the evidence was not 'compelling' as required under Section 102(3). The new evidence did not give rise to, "a significant possibility that a properly instructed jury, acting reasonably, would have acquitted the appellant had Dr Manock's erroneous opinion as to the time of death not been in evidence".

The Court reasoned that the new evidence did not increase the probability of a person other than Mr Van Beelen being the perpetrator.

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