Double jeopardy

DEAR EDITOR, the Solomon Star newspaper on Tuesday, reported the court acquittal of four men for their alleged part in an armed robbery at Panatina last October.

All four were said to have been acquitted under a provision of the Criminal Procedure Code (CPC) due to insufficient evidence.

The Star’s article, from which I quote, then read, “The Prosecution on the other hand however wanted this matter to be withdrawn under section 190 (2) (b) (ii) of the CPC that provided for a discharge.

“The reason for this is that the prosecution wants to send the file back to the investigators.

“This is for police to fish for evidence and then reinstate the charges against the four accused.”

It is some years since I practiced as a Prosecutions Officer and in that time there have been some changes in the law, notably in some states in Australia and also in Canada, which might allow persons acquitted before the court of a crime to be re-tried for the same crime but as far as I am aware such changes have not been enacted in the Solomon Islands.

I am referring to what I call double jeopardy and an established legal principle that guarantee’s that a person will not be tried twice for the same crime in the same jurisdiction.

Double jeopardy occurs if someone is charged with a crime and found innocent, and then charged with the same crime a second time.

Double jeopardy protects against three different types of abuses:

A second prosecution for the same offense after conviction

A second prosecution for the same offence after acquittal

Multiple punishments for the same offence

An individual can be tried twice based on the same facts as long as the elements of each crime are different.

Double jeopardy prohibits only more than one criminal prosecution based on the same facts and same crime.

The changes to the double jeopardy rule in Australia are quoted as follows:

“On 30 July 2008, South Australia also introduced legislation to scrap parts of its double jeopardy law, legalising retrials for serious offences with “fresh and compelling” evidence, or if the acquittal was tainted.

“In Western Australia, on 8 September 2011 amendments were introduced that would allow also retrial if “new and compelling” evidence was found. It would apply to serious offences where the penalty was life imprisonment or imprisonment for 14 years or more.

“In Tasmania, on 19 August 2008, amendments were introduced to allow retrial in serious cases, if there is “fresh and compelling” evidence.

“In Victoria on 21 December 2011, legislation was passed allowing new trials where there is “fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given false evidence” Retrial applications however could only be made for serious offences such as murder, manslaughter, arson causing death, serious drug offences and aggravated forms of rape and armed robbery.”

It will prove interesting to learn whether there will be “new and compelling’ evidence to see the four acquitted persons brought before the court again on different elements of the case; even assuming the law in the Solomon Islands has been changed to incorporate the kind of provisions introduced to double jeopardy principles in Australia,

Yours sincerely


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