Double jeopardy: Can a person be punished twice for the same offence in Australia?

by The FindLaw Team

It’s perhaps somewhat surprising when you think about how much of the law filters through via popular media and is particularly noticeable when it comes to the use of legal terminology, and the familiarity that people have in regards to legalese. Therefore, it probably isn’t too much of a stretch to assume that many readers will have a broad understanding of the term ‘double jeopardy’, and its definition that an accused cannot be punished twice for the same offence. However, is there more to double jeopardy than not being punished twice? Are there other elements to double jeopardy? Also, can a person be actually punished for the same act? Are just some of the questions which may arise when discussing double jeopardy.

What does double jeopardy mean?

Double jeopardy does not in fact have a singular meaning but rather it is an expression which is used during different stages of a criminal matter.

To gain further insight into the meaning of double jeopardy we can look to the matter of Pearce v The Queen where McHugh, Hayne and Callinan JJ in the High Court said:

“The expression “double jeopardy” is an expression that is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict: sometimes it is used to encompass what is said to be a wider principle that no one should be “punished again for the same matter”. Further, “double jeopardy” is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.”

Double jeopardy and the law

All jurisdictions have legislation that sometimes prevents double jeopardy, and we can use s 50 of South Australia’s Acts Interpretation Act 1915 as our legislative example:

“Where any act or omission constitutes an offence under two or more Acts, or both under an Act or Acts and at common law, the offender will, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but is not liable to be punished twice for the same offence.”

We can also again turn to Pearce in regards to how the High Court considered double jeopardy, which was a case where the appellant, Douglas Wallace Pearce, was convicted on separate counts of:

“(a) maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm; and

(b) breaking and entering the house of the victim and, while inside, inflicting grievous bodily harm on him.”

Pearce was found guilty on both counts and was sentenced to identical terms with the sentences made wholly concurrent. On appeal, the High Court concluded that the appellant was punished twice for the one act, aside from the concurrent sentence, however, McHugh, Hayne and Callinan JJ said:

“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often these boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts.” 

Can a later, different criminal charge be bought against a person in relation to the same act?

The general understanding of double jeopardy is that a person cannot be penalised again for the same offence, however, what happens if a different charge is laid for the same action? This was the question that the High Court had to consider in R v Carroll, where Raymond Carroll had originally been convicted of the murder of a child, which was then later overturned by the Queensland Court of Criminal Appeal which had entered a verdict of acquittal.

Fourteen years after the acquittal, Carroll was bought before the courts on a charge of perjury for giving evidence in his trial denying the killing. During the trial for perjury, nearly all of the evidence that was put forward in the murder case was rehashed in the perjury trial, resulting in Carroll’s conviction. On appeal, the Queensland Court of Appeal set aside the perjury conviction and the prosecution appealed to the High Court, where Gleeson CJ and Hayne J stated that the acquittal was the right decision and that:

“The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is a proposition which has not been held to preclude persons other than the prosecution asserting in later proceedings and that it is what is described in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided.”   

However, it’s also worth nothing the later comments of Gleeson CJ and Hayne J in the same matter, with their Honours saying that a charge can on some occasions proceed:

“Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z, R v Arp and R v Degan are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.”


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