Section 26 - Right not to be tried or punished more than once.

A person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.

Section 26 protects an accused against what is commonly referred to as ‘double jeopardy’. The prohibition on double jeopardy is a well-supported and fundamental safeguard in the common law considered to be part of the right to a fair trial.


This right means that a person who has been tried in proceedings where the person was at risk of the imposition of a penalty cannot be tried again on a charge that is substantially the same as the original charge.


The purpose of the principle against double jeopardy is to ensure fairness to an accused and to bring finality in the system of justice by preventing repeated attempts to convict.


The following points should be noted regarding the scope of this right:

  • It applies in respect of all criminal offences, regardless of their seriousness.
  • It does not apply to civil trials that may result in a form of civil liability.
  • Penalties and sanctions imposed by professional disciplinary bodies do not usually form a punishment for the purposes of this right.
  • It applies after a final judgment of either conviction or acquittal. This means that all applicable proceedings for judicial review and all appeals must be finally exhausted or the time limits for invoking such reviews or appeals must have passed.
  • It only applies to the benefit of the same legal person.287
  • It is aimed at preventing new trials or punishments for offences with substantially the same elements.
  • It does not prevent the reopening of a case (including the conduct of a new trial) when a conviction has been found by an appeal court to have been a miscarriage of justice. New trials may be held, for example, when evidence emerges, after conviction, of serious procedural flaws or in the event of new or newly discovered facts.
  • In particular, it has the consequence that a person who has been acquitted of a criminal charge is not to be subjected to a criminal trial for the same offence or substantially the same offence.


The prohibition against double jeopardy appears in a number of other human rights instruments from comparable jurisdictions. Refer to Appendix H for more information.


In many jurisdictions, there have been legislative refinements to this prohibition since the enactment of the relevant human rights instrument: for example, in light of advances in DNA technology.

 

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287 Spencer v. Wellington District Court [2000] 3 NZLR 102.