THIS [double jeopardy rule] is one of the sacred principles of the criminal law which goes back nearly 1000 years. It [changing the rule] has the potential to weaken the onus on the Crown to prove its case.
— Unidentified politician, NSW Labor caucus, The Sydney Morning Herald, November 17, 2004.


Can we detect in those learned words the faint bat shriek of the common lawyer?

Since she/he appeals to antiquity, we might as well go back a bit further. In the Dark Ages, England and Europe both used an irrational and anti-truth PROVE IT! legal system.

Europe changed to a WHAT HAPPENED? system nearly 800 years ago, but England stuck with the old system on the perfectly reasonable ground that Wogs Begin at Calais.

Our PROVE IT! system is thus a product of the Dark Ages. In tandem with the adversarial thimble and pea trick — now you see the evidence; now you don’t — it reaches its logical destination when a bemused Crown finds it has the onus to prove its case with ALL the evidence hidden.

That happened on Thursday, 22 August 1996 in a case in which the ever-charming John Dorman (“Pig’s Arse!”) Elliott and others were accused of thieving $66 million from a brewery.

The Crown asked the judge, Frank Hollis Rivers Vincent, for a nolle, but he declared them not guilty. On Wednesday, 26 September 1997, the Victorian appeal court said he was wrong to conceal the evidence, but the horse had bolted: double jeopardy means that wrong not guilty verdicts can never be wrong.

The WHAT HAPPENED? system, in its drearily rational way, of course accepts that both guilty and not guilty verdicts can be wrong.

Barrister Garry Livermore, who led the National Crime Authority investigation into Elliott et al from 1989, gave evidence to the Joint Parliamentary Committee on the NCA eight years later, on Monday, 8 October 1997.

For some reason, he seemed a little peeved. Perhaps it was because the investigation, various legal skirmishes, and the non-trial had cost the punters who so generously fund the PROVE IT! system some $20 million. Hansard recorded him as saying:

“They were gone. They would have been gone if the evidence had been led before a jury. The evidence against them was overwhelming …  Not one of some 130 witnesses ever gave evidence before a jury in this matter. It is a disgrace and a blight on the system …  Mr Chairman, I attended the Carlton football match at Optus Oval the Saturday after Mr Justice Vincent’s ruling throwing out all the evidence in the case. I sat down and listened to Mr Elliott … roar to the crowd [that] he had ‘stuck it right up the NCA’. He had not done that at all. What he had done was stick it right up the system and he stuck it up you, Mr Chairman, and every law-abiding member of the Australian community.”

That may be, but the punters are entitled to the view that it was a system out of the Dark Ages which — to continue Mr Elliott’s typically delicate metaphor — raped and pillaged the body politic.

Now, amazingly, NSW first law officer Bob Debus could not get a seconder in caucus for his proposal to abolish the double jeopardy rule in some major cases. For example, if the use of deoxyribonucleic acid provides new and compelling evidence.

Premier Bob Carr may preside over terminally ill health and rail systems, but he has always had a choke hold on the lorn order agenda. Caucus, alas, may have deprived him of even that.

Justinian
November 30, 2004

Footnote February 1, 2007. Whitton writes: Debus got a Bill ending the double jeopardy rule through the NSW lower House in September 2006, and a working party is considering ending the rule in all state and federal jurisdictions. 

Evan Whitton

The horse has bolted — pig’s arse to that, writes Evan Whitton