Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Crimes (Appeal and Review) Act 2001:

(a) to enable a person acquitted of a serious offence in a retrial under the exception
to the rule against double jeopardy to be again retried if the acquittal was
tainted because of an administration of justice offence, and

(b) to provide that an appeal court must not dismiss a prosecution appeal against
sentence, or impose a less severe sentence than it would otherwise consider
appropriate, because of any element of double jeopardy involved in the
respondent being sentenced again.

The Bill gives effect to proposals included in recommendations of the Double
Jeopardy Law Reform Working Group that were agreed to by the Council of
Australian Governments.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on the date of assent
to the proposed Act.

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Explanatory note page 2

Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2009
Explanatory note
Schedule 1 Amendment of Crimes (Appeal and
Review) Act 2001 No 120
Division 2 of Part 8 of the Crimes (Appeal and Review) Act 2001 allows an acquitted
person to be retried if there is fresh and compelling evidence against the person or if
the acquittal was tainted. An acquittal is tainted if the accused person or another
person has been convicted of an administration of justice offence (such as perversion
of the course of justice or perjury) in connection with the proceedings in which the
person was acquitted. Schedule 1 [2] enables an application to be made for a further
retrial of a person who was acquitted at a retrial if the acquittal was tainted.

Schedule 1 [1] provides that an appeal court must not:

(a) dismiss a prosecution appeal against sentence, or

(b) impose a less severe sentence on any such appeal than the court would
otherwise consider appropriate,
because of any element of double jeopardy involved in the respondent being
sentenced again. The existing law requires a court hearing a prosecution appeal
against sentence to impose a sentence at the lower end of the range that could
properly have been imposed by the sentencing judge.

Schedule 1 [3] enables savings and transitional regulations to be made as a
consequence of the enactment of the proposed Act.

Schedule 1 [4] provides that the amendment in Schedule 1 [1] extends to appeals that
are commenced but not finalised before the amendment.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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