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Cameron Ford*

CONTENT OF “DOUBLE JEOPARDY” IN CROWN

APPEALS CONSIDERED BY HIGH COURT

In Bui v Director of Public Prosecutions (Cth) [2012] HCA 1 at [29], afive-member Bench of the High Court1 unanimously held that the “principle” ofdouble jeopardy is not accommodated by the sentencing provisions of s 16A ofthe Crimes Act 1914 (Cth). In doing so, their Honours considered what wasmeant by double jeopardy in the context of resentencing on appeal, noting thatthe meaning of the concept could be different at different stages of the criminalprocess (at [14]). The court said:

In this context, and taking up what was said in Green v United States, the term hasbeen used to describe the distress and anxiety that a convicted person may feel whenfaced with the prospect of re-sentencing by an appeal court.2

That comment’s relevance is to the question of what is meant by “doublejeopardy” in legislation in most Australian jurisdictions removing the principle asa consideration on Crown appeals.3 A question remains as to whether the phrasein that context refers only to the distress and anxiety mentioned by the HighCourt, or if it extends wider to include other factors.

In R v JW (2010) 77 NSWLR 7, Spigelman CJ, with whom Allsop P,McClellan CJ, and Howie and Johnson JJ agreed, appeared to suggest that thephrase “double jeopardy” is confined to the elements of distress and anxiety.However, in R v Wilson (2011) 30 NTLR 51, Riley CJ surveyed decisions fromother jurisdictions on similar provisions and noted reservations of both theVictorian and the Tasmanian Courts of Criminal Appeal as to the extent of thephrase.

In Director of Public Prosecutions v Chatters [2011] TASCCA 8 at [50], theTasmanian Court of Criminal Appeal said “we do not want to be taken asagreeing with any proposition that the concept of double jeopardy is confined topresumptive stress and anxiety”. This was after saying that the concept of doublejeopardy was central to the principle “that Crown appeals against sentence wereless readily allowed than defence appeals against sentence” (at [11]), indicatingthat this principle was also part of “double jeopardy”.

The Victorian Court of Criminal Appeal in Director of Public Prosecutions(Vic) v Karazisis (2010) 206 A Crim R 14 considered R v JW but did not

* Barrister; Editor-in-Chief, Northern Territory Law Reports (NTLR); Executive Editor, Northern

Territory Law Journal (NTLJ).

1 French CJ, Gummow, Hayne, Kiefel and Bell JJ.

2 Referring to Green v United States 355 US 184; citing R v JW (2010) 77 NSWLR 7 at [54]; Director

of Public Prosecutions (Vic) v Karazisis (2010) 206 A Crim R 14; Director of Public Prosecutions

(Cth) v De La Rosa (2010) 205 A Crim R 1.

3 Crimes (Appeal and Review) Act 2001 (NSW), s 68A; Criminal Procedure Act 2010 (Vic),ss 289-290; Criminal Law Consolidation Act 1935 (SA), s 340; Criminal Appeals Act 2004 (WA),s 41; Criminal Code (Tas), s 402(4A); Criminal Code (NT), s 414(1A)

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determine whether the phrase “double jeopardy” in the Victorian legislation wasto be confined to presumed anxiety and distress.

Riley CJ in Wilson, with the agreement of Blokland and Kelly JJ, said that hewould leave to another day the determination of whether “double jeopardy” wasnecessarily confined to the elements of anxiety and distress (at [26]).

The High Court’s reference, three times,4 only to the presumed anxiety anddistress as constituting double jeopardy supports the conclusion in R v JW that itis confined to that issue. But it must be said that the High Court was not requiredto consider what amounted to “double jeopardy” in that context in detail, since itfound that the principle did not apply to sentencing under the relevant provision.It must also be noted that neither counsel submitted that phrase meant more.Nevertheless, had there been the possibility of its extending wider, one wouldhave expected the High Court with its customary rigour to add a qualification toits otherwise clear statements.

While Bui does not conclude the debate about the content of “doublejeopardy” in Crown appeals, it lends support to that content being limited to thepresumed distress and anxiety that a convicted person may feel when faced withthe prospect of resentencing by an appeal court.

4 Bui v Director of Public Prosecutions (Cth) [2012] HCA 1 at [10], [12], [14].

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