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P r e f a c e
N
EW ZEALAND LAW has always provided that a person
acquitted of a crime can never be prosecuted again for the same
offence. That is known as “the rule against double jeopardy” and is a
basic safeguard of civil liberties in every legal system comparable
with our own. There was a line of authority extending it, by
prohibiting any assertion in any later trial that a person who has
been acquitted (or convicted) at a previous trial was in fact guilty.1
That has recently been reviewed by appellate courts in New Zealand
and in England.
Both the rule and the extension were examined in the Law
Commission’s Preliminary Paper 42 Acquittal Following Perversion of
the Course of Justice: a Response to R v Moore (2000). We expressed
the view, as earlier did the House of Lords in R v Z,2 that the
extension was unjustifiable. That conclusion has since been adopted
by the Court of Appeal of New Zealand in R v Degnan.3 While there
has been some overseas support for the extension,4 the submissions
received in response to the Preliminary Paper suggest no justification
for us to advise that New Zealand should by statute depart from the
judgment in Degnan.
Our focus is therefore on the rule against double jeopardy following
prior acquittal. For the reasons contained in this Report we confirm
the fundamental importance of that rule. We recommend a limited
and principled exception to it in cases where an accused has secured
apparently unmerited acquittal in the most serious classes of case by
perjury or other conduct designed to defeat the course of justice.
Our timetable has overlapped with that of the Law Commission for
England and Wales whose report Double Jeopardy and Prosecution
1
Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458; R v
Davis [1982] 1 NZLR 584, 589.
2
[2000] 2 AC 483.
3
[2001] 1 NZLR 280.
4
Discussed by Colin Tapper in “Clouded Acquittal” (2000) 117 LQR 1 and
including Reg v Arp [2000] 2 LRC 119 (Supreme Court of Canada).