In very broad terms, the principle of double jeopardy is said to protect a person from being twice placed in jeopardy of conviction or punishment for the same matter. When applied in the context of sentencing, it refers to the anxiety and stress presumed to be involved in being re-sentenced.
The origin of the use of the phrase “double jeopardy” to describe the situation faced by a defendant when the Crown appeals against sentence is usually ascribed to the 1979 Federal Court decision in R v Tait (1979) 46 FLR 386 while the development of the common law principle in the Australian context is said to owe much to sentencing jurisprudence developed by the High Court: for an historical overview, see Director of Public Prosecutions v Karazisis [2010] VSCA 350.
Subsequently, in the wake of the model for Double Jeopardy Law Reform agreed upon by the Council of Australian Governments (COAG) in April 2007, the principle has, to date, been abolished by statute in all Australian states and territories except the Australian Capital Territory (and Queensland, which has, however, recently introduced legislation of its own – see the Criminal and Other Legislation Amendment Bill 2011, introduced into the Queensland Legislative Assembly on 13 October 2011 and subsequently referred to the Legal Affairs, Police, Corrective Services and Emergency Services Committee for detailed consideration). This Bill includes, as a key objective, to remove consideration of the principle of sentencing double jeopardy in relation to Attorney-General appeals against sentence.
Key Legislative Provisions Abrogating Sentencing Double Jeopardy and Key Cases, at January 2012
Jurisdiction
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Legislation
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Cases discussing the enactments
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NSW
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R v JW [2010] NSWCCA 49
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SA
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Criminal Law Consolidation Act 1935, Part 10A (ie s 340)
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-
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VIC
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Criminal Procedure Act 2009, ss 259, 262, 289, 294
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WA
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Criminal Appeals Act 2004, s 41(4)(b)
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TAS
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Criminal Code, s 402(4A)
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Director of Public Prosecutions v Chatters [2011] TASCCA 8
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NT
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Criminal Code, s 414(1A)
Justices Act, s 177(4)
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-
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Criminal and Other Legislation Amendment Bill 2011(Qld); Explanatory Notes; Explanatory Speech (Attorney-General, Hon Paul Lucas MP)
Karen Sampford
