96 S e cti o n T w o – c iv il and politi cal rights twice for the same offence. 33 Under the original bill, a a cornerstone of criminal justice, and that there was no defendant could be tried twice in two circumstances: principled foundation for allowing retrial on the basis of ‘tainted acquittal’, where a person found not guilty of new and compelling evidence. a crime is subsequently convicted of an administration of justice offence that significantly contributed to the person’s acquittal; 34 and where there is new and Even though the Attorney-General had provided concrete examples of how to amend the legislation to make it compliant with the BoRA, while still achieving the compelling evidence in relation to an offence that is policy objective, the select committee did not share his punishable by imprisonment of 14 years or more. concerns. 37 The final amendments to the Crimes Act In his section 7 report, the Attorney-General found the were largely unchanged from the original proposal. 38 ‘tainted acquittal’ exception to be a justifiable breach of (b) A 2009 bill, popularly known as the ‘three strikes bill’, section 26(2) of the BoRA. 35 However, he considered that proposed the imposition of a life sentence for a third the ‘new and compelling evidence’ exception was not listed offence, with a non-parole period of 25 years. The justified. He was concerned about the disproportionately Attorney-General concluded, in his section 7 report, that wide range of offences caught by the 14-year penalty this provision “may raise an inconsistency with the right threshold. He considered that a specific and limited against disproportionately severe treatment affirmed by schedule of offences must be regarded as a minimum section 9 of the BoRA”, noting that “where section 9 is requirement of any scheme that makes an exception engaged, there is no scope for justification in terms of to the double jeopardy rule for fresh and compelling section 5”. 39 evidence cases. He noted that the new and compelling evidence exception enacted under the United Kingdom’s Criminal Justice Act 2003 captured significantly fewer offences than was proposed under the bill. 36 National, The Attorney-General was one of many individuals and groups to raise concerns about the human rights implications of this bill. 40 Following the AttorneyGeneral’s section 7 report, the Government and the select NZ First, the New Zealand Law Society and the Law committee made additional changes to the bill. However, Commission also considered that the exception was a the revised bill required judges to impose the maximum major inroad into the double jeopardy principle, which is sentence on a third-strike conviction, regardless of the 33 The rule against double jeopardy is a fundamental principle of law, which declares that a person should not be tried for the same crime more than once. The basic premise is that the State, with all its resources and powers, should not be allowed to make repeated attempts to convict a person for an alleged offence. Without the rule, the possibility of convicting an innocent defendant is higher. The principle stems from the Magna Carta and is codified under section 26(2) of the Bill of Rights Act and the special pleas of previous acquittal and previous conviction in the Crimes Act. 34 The ‘tainted acquittal’ exception was intended to apply to persons who escape probable conviction for a serious crime by committing an administration-of-justice offence leading to their acquittal 35 Because a tainted acquittal is not legally a legitimate verdict but a nullity, a rule relating to a retrial of such an acquittal is not an exception to the double-jeopardy rule. 36 The Attorney-General was concerned the circumstances of many charges would be unlikely to warrant 14 years’ imprisonment if the accused were found guilty. Not all of the current offences that would qualify for the exception are of the type that justify departure from the double-jeopardy rule. The bill’s method of determining qualifying offences will result in the automatic capture of any future offences enacted with this maximum penalty. Moreover, lifting current maximum penalties above the threshold will offer an expedient way to extend the reach of the exception without having to give proper consideration to the consequences of undermining the double jeopardy rule. 37 It considered that ”the new and compelling evidence proposal represents, in our view, a principled balancing of the two competing interests of finality and justice in the criminal system”. 38 Enacted under the Crimes Amendment Act 2008 39 Attorney-General (2009), Interim report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Sentencing and Parole Reform Bill, para 4 40 Then New Zealand Law Society noted that the sentencing regime proposed in the bill had aroused “concern and disquiet” among legal practitioners experienced in the criminal justice system. Dr Richard Ekins and Professor Warren Brookbanks of Auckland University Law Faculty spoke on ‘three strikes’ at a public lecture co-hosted by Maxim Institute and the Institute of Policy Studies in Wellington on 31 March 2010 and Auckland on 7 April 2010.