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Exceptions to double jeopardy to be introduced

Hon Phil Goff
Minister of Justice

16 May 2004

Media Statement

Exceptions to double jeopardy to be introduced

Two exceptions to the rule of double jeopardy are to be created to cover situations where people may have been wrongfully acquitted, Justice Minister Phil Goff announced today.

The exceptions will be included in a Criminal Procedures Bill that will be introduced to Parliament shortly.

"The first exception, which I foreshadowed some time ago, will cover 'tainted acquittals'. This will allow for the retrial of people who have been convicted of perjury or intimidating a witness during an earlier trial, if that was a significant factor in the acquittal," Mr Goff said.

"The second exception will cover cases where strong evidence of guilt is established after a person has been acquitted of a serious offence.

"This exception will only apply to offences that carry a maximum of 14 years or more imprisonment, and safeguards will be introduced to protect individuals from any abuse of the rule.

"Double jeopardy is a long-standing rule designed to ensure the Crown does not use its disproportionate resources to subject an individual to repeated prosecutions for an offence for which he or she had already been acquitted.

"That reason continues to be sufficient grounds for maintaining the general rule of double jeopardy. However there is a strong argument for an exception to be made when a person has been acquitted of a very serious offence and subsequently new evidence is discovered pointing to strong evidence of guilt.

"In such a case, double jeopardy principles are outweighed by a higher public interest in holding the individual to account for the offence. Not to do so would represent a major injustice to any victims, and would potentially undermine public confidence in the criminal justice system.

"Not to be able to hold somebody accountable for a crime in the face of compelling evidence of guilt would rightly be regarded by most New Zealanders as a serious injustice.

"The legal system is not foolproof and that is why we have an appeals system and the Royal Prerogative of Mercy to guard against the possibility of wrongful conviction.

"But injustice can run both ways. This change will ensure injustice suffered by the victim can also be corrected."
Mr Goff said a series of safeguards would be introduced to protect against any misuse by the State of the grounds for exceptions. They are:

- Evidence must be new; i.e., unable to have been discovered with the exercise of due diligence at the time of the initial trial. This protects against promoting poor initial investigations.
- Evidence must be compelling; i.e., it suggests a high degree of probability that the person acquitted was in fact guilty.
- It will only apply to serious crimes carrying a maximum penalty of 14 years or more imprisonment.
- The Solicitor-General must consent to police reinvestigation and must be then satisfied that new and compelling evidence of guilt exists and that a retrial would be in the public interest.
- The Court of Appeal must then decide there is compelling new evidence of guilt and that a retrial would be in the interests of justice.
- There may be only one retrial.

"Introducing such an exception will bring New Zealand in with like-minded countries," Mr Goff said.

"The UK government has moved to change the law along similar lines, while the European Convention on Human Rights provides that a case may be reopened if there is evidence of new or newly discovered facts.

"In Australia, the governments of New South Wales and Victoria have also indicated they are in favour of such a reform," Mr Goff said.

All Phil Goff’s media releases and speeches are posted at

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