A man acquitted of a 2009 murder could be retried in Court after police received ‘fresh and compelling evidence’. The man was charged with murder on Monday by detectives in Logan, south of Brisbane. It was reported that Detectives re-opened the investigation after they received fresh and compelling evidence in December 2022.
Double jeopardy in Australia prevents a person from being prosecuted more than once for an offence of which he or she has been previously finally acquitted or convicted. The principle follows that a person who is acquitted after being subject to an ordeal of a criminal trial should not be in a position to fear threat of further prosecution.
However, In NSW, the Court does have power to order an acquitted person to be retried for offences that carry a life sentence punishment if it is satisfied that there is fresh and compelling evidence against the acquitted person in relation to the offence, and in all circumstances, is in the interest of justice for the order to be made.
Amendments to the Crimes (Appeal and Review) Act 2001 (‘the Act’) empower the NSW Court of Criminal Appeal (NSWCCA) to order the retrial of certain acquitted persons on application by the Director of Public Prosecutions (‘DPP’) where there is ‘fresh and compelling evidence’.
Section 100(1) of the Act empowers the NSWCCA to order an acquitted person to be retried for a life sentence offence if satisfied that:
I. there is fresh and compelling evidence against the acquitted person in relation to the offence, and
II. in all the circumstances it is in the interests of justice for the order to be made.
Fresh evidence is explained under Section 102(2) to mean:
I. it was not adduced in the proceedings in which the person was acquitted, and
II. it could not have been adduced in those proceedings with the exercise of reasonable diligence.
Compelling evidence is provided under Section 102(3) to mean:
I. it is reliable and substantial; and
II. 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.
Life sentence offences include murder, large commercial drug supply, aggravated sexual assault in company, and several terrorism offences among other indictable offences.
