Class Notes (837,611)
Australia (1,845)
Law (441)
JSB171 (400)
All (349)
Lecture

3. [ss16&17] Double Jeopardy & Double Punishment

8 Pages
98 Views
Unlock Document

Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Double Jeopardy & Double Punishment D OUBLE JEOPARDY :S 17 1. Onus 4. General or Partial verdict 2. Finality 5. Limb & Rule 3. Alternative verdicts 6. Exceptions Onus—Defence—On accused BOP rather than BRD: R v Viers Effect—Prevents the charge from being brought Generally—may not be charged with same offence: s17 st 1 Limb—T2 = alternative verdict to T1 (major offence → alternative offence) It is a defence to a charge of any offence to show that the accused person • has already been tried, and convicted or acquitted • upon an indictment on which the person might have been convicted of the offence with which the person is charged … = Might have been convicted of 2 Trial charge in 1 Trial • Rationale—to prevent the DPP bringing a less serious charge after failing (or succeeding) on a more serious charge Rule 1—convicted in first trial | Rule 2—acquitted in first trial 2 Limb—T1 = alternative verdict to T2 (alternative offence → major offence) It is a defence to a charge of any offence to show that the accused person … • has already been acquitted upon indictment, or has already been convicted, • of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged st nd = Might be convicted of 1 Trial charge in 2 Trial • Rationale—to prevent the DPP bringing a more serious charge after succeeding (or failing) on a more serious charge Rule 3—acquitted in first trial | Rule 4—convicted in first trial 1. Finality—Acquittal or Conviction • Q of law for the judge: s604(1) • Finality = if trial closes the question of guilt or innocence: Doyle v R • No finality where— o Appeal Court quashes conviction & orders new trial o prosecutor entered a nolle prosequi (not proceeding against a party, usually co-accused): Davis v Gell per Isaacs ACJ  ← does not affect subsequent proceedings: Doyle v R per Shepherdson J o jury failed to agree on a verdict (partial verdict): Simpson o earlier proceedings were committal hearings in the Magistrates court General & partial verdicts • Partial Verdicts— o If a jury disagrees on joined charges (partial verdict) → the accused may be later tried for those offences if they are not alternatives: Simpson ((1) attempted rape | (2) assault with intent to commit rape | (3) indecent assault—jury found guilty of (3) indecent assault—no agreement on 1&2 charges—T2 on (1)&(2)  offences are not alternatives to each other → double jeopardy not available) Andrew Trotter LWB239 Criminal Responsibility o May be asked for by a Judge o May be returned by Jury whether or not Judge has directed on it or asked for it • General verdict arises where the alternative offence is open to the jury, even if not directed on it: O’Halloran v O’Byrne per Wickham J (acquitted on rape—did not direct jury on unlawful carnal knowledge of child under 16 = alternative offence under s578(1)—T2 for unlawful carnal knowledge  Acquittal = general verdict → double jeopardy raised → defence effective) General & Partial Verdicts according to Kelley • General verdict = when charged w serious offence & T2 offence open as alternative → Limb 1 • Partial verdict = when charged w minor offence & T2 offence not open as alternative → Limb 2 o ← not really a partial verdict—is a general verdict on the minor offence only o The real significance of partial verdicts is where convicted of one offence but no decision is reached on the others, & they are not alternatives → double jeopardy does not operate at all: Simpson ((1) attempted rape | (2) assault with intent to commit rape | (3) indecent assault—jury found guilty of (3) indecent assault—no agreement on 1&2 charges—T2 on (1)&(2)  offences are not alternatives to each other → double jeopardy not available) T1 in Magistrates Court  Magistrate convicts or dismisses charges after hearing on the merits → may raise s17 at T2 o Magistrate may issue a certificate to disbar trial 2: s700 CC and s149 Justices Act 1886 (Qld) (When justices dismiss a complaint of an offence punishable on summary conviction, whether an indictable offence or not, they may, if required and if they think fit, give the accused person a certificate of dismissal … (2) Such a certificate is a bar to any further prosecution of the accused person for the same cause)  Magistrate dismisses charges on basis of lack of evidence or otherwise without hearing on the merits → no finality → double jeopardy excluded: R v Hay; ex parte Patane 2. Alternative verdicts: Ch 61 Expressly Joining Charges Different charges may be expressly joined on the indictment • Two charges can be joined if they— (s567(2)) o are founded on the same facts o form part of a series of offences of the same or similar character • More detailed rules in s568 Alternative Verdicts Alternative often have the same elements—prevents same case being run under a different name: Pearce Perjury T2 for perjury for lying in T1 after acquittal— (Carroll) • against fundamental principle of double jeopardy • essentially a retrial on the same facts • abuse of process as undermining finality of T1 ← BUT see new exceptions for murder (s678B) or 25yr offence (s678C) Effect of Conviction on Alternative Liable to same punishment as if originally charged with the alternative offence: s585 Andrew Trotter LWB239 Criminal Responsibility Offence Alternative offence Offence involving s575 circumstance of Offence without circumstance of aggravation aggravation Unlawful Killing: s576 & 577 s576(1) Murder (302) manslaughter (s303) s576(2) NOT manslaughter (303) murder (s302) Unlawful killing (302 & Killing unborn child (313) s577 303) concealing birth of child (314) Sexual Offences: s578 208 (unlawful sodomy) 209 (attempted sodomy) 210 (indecent treatment of child under 16) 215 (carnal knowledge with or of child under 16) s578(1) Rape (349) 216 (abuse of intellectually impaired person) 217 (procuring person for carnal knowledge) 218 (procuring sexual acts by coercion) 222 (incest) (and vice versa: s578(4)) 352 (sexual assault) 209 (attempted sodomy) 210 (indecent treatment of child under 16) 216 (abuse of intellectually impaired person) s578(1A) Unlawful sodomy (208) 217 (procuring person for carnal knowledge) 218 (procuring sexual acts by coercion) 352 (sexual assault) 210 (indecent treatment of child under 16), Carnal knowledge with or s578(2) of child under 16 (215) 217 (procuring person for carnal knowledge) 218 (procuring sexual acts by coercion) Unlawful and indecent s578(3) 210 (indecent treatment of child under 16) assault (352) 208 (unlawful sodomy) 209 (attempted sodomy) 210 (indecent treatment of child under 16) 215 (carnal knowledge with or of child under 16) Incest or attempted incest 216 (abuse of intellectually impaired person) s578(4) (222) 217 (procuring person for carnal knowledge) 218 (procuring sexual acts by coercion) 349 (rape) (and vice versa: s578(1)) 350 (attempted rape) 352 (sexual assault) s578(5) Sexual offences sexual offences with aggravating circumstances Injury to Person: s579 Offence where the causing s579(1) of a specific result is an Offence with intent to cause physical injury element Andrew Trotter LWB239 Criminal Responsibility Offence where intention to s579(2) cause a specific result is anOffence causing physical injury element Injury to Property: s580 & 581 Charge involving s580 destruction of or damage to Charge of wilfully and u
More Less

Related notes for JSB171

Log In


OR

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit