6.20.3. Reasonable and justified limits under s 7(2)
As with all Charter rights, the rights in s 27(1)-(3) are subject to limitation in accordance with the general limitations clause in s 7(2).
Victorian law provides for a person who has been acquitted to be tried again in certain circumstances, for example, where ‘fresh and compelling’ evidence emerges, or where the acquittal was achieved through some failure of the administration of justice, such as bribery of witness or perjury (see, eg, Criminal Procedure Act 2009, ss 327H, 327L-N, introduced by the Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011). This may mean that such circumstances fall outside the scope of the right, or they may be considered to be reasonable and justified limits on the right in s 26.
The Statement of Compatibility for the Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011 states that although it limits the right in s 26, that limitation is reasonable and justified under s 7(2). Factors mentioned in the Statement of Compatibility include:
The primary purpose of the limitations is to ensure that individuals acquitted of serious crimes are not able to escape punishment where compelling new evidence of guilt emerges or where it is clear that the original acquittal was 'tainted' in some way by an orchestrated perversion of the original trial which resulted in the acquittal.
The exceptions also achieve other important goals such as promoting community safety, fair hearings and just outcomes, the interests of victims of crime and public confidence in the criminal justice system.
The bill tightly defines the circumstances in which retrials may be allowed with respect to each of the three exceptions.
In relation to all three exceptions to the double jeopardy rule, the DPP must apply to the Court of Appeal to set aside the previous acquittal or remove it as a bar to further proceedings.
The Court of Appeal must be satisfied that one of the three exceptions applies and that a fair new trial is likely (Victoria, Parliamentary Debates, Legislative Assembly, 9 November 2011, 5349 (Robert Clark, Attorney-General)).
It may be that such factors would be taken into account by the courts in undertaking a limitations analysis under s 7(2).
