s 17 Criminal Code
'It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or...'
* Offence presently charged was either the same/an alternative verdict available at the first trial * Accused usually acquitted at prior trial - Prevents subsequent prosecution for same/lesser offence which could have been an alternative verdict at prior trial - Alternative verdict should have been raised at first trial |
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Exception: s 678BCourt of Appeal may order retrial of person acquitted of murder (and not convicted of lesser offence) if satisfied:
* (a) there is 'fresh and compelling' evidence; and * (b) retrial is in interests of justice s 678D(2) describes fresh evidence as that not adduced at the previous proceeding and which could not have been adduced with the exercise of reasonable diligence s678D(3) describes compelling evidence as that which is reliable, substantial and highly probative s 678D(4) notes that evidence that would be admissible on a retrial...is not precluded from being fresh and compelling merely because it would have been inadmissible in the earlier proceedings against the acquitted person. See The Queen v G(G) & B(S) [2009] EWCA Crim 1077. |
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Interests of Justice
s 678F: a fair retrial must be likely; and the Court must consider the passage of time and whether police/prosecutors have acted with reasonable diligence and expedition.