For aid to be granted to respond to a Double Jeopardy exception application, the following tests must be satisfied:
Documentary requirements
Application received from client
Applicants seeking a grant of legal assistance should forward the following documents for assessment:
- a completed and signed Legal Aid Queensland application form
- proof of income and assets (refer to the means test)
- a copy of the charge(s) such as a notice to appear, bench charge sheet or Queensland court brief (QP9) material (if applicable).
Application received from a preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system with:
- the appropriate information request or checklist
- proof of income and assets (refer to the means test)
- a copy of the charge(s) such as a notice to appear, bench charge sheet or Queensland court brief (QP9) material (if applicable)
The following documents must be retained on the practitioner's file but may be requested by Legal Aid Queensland:
Interpretation
Retrial
By application of the Director of Public Prosecutions, the Court may order an acquitted person to be retried for the offence of murder or a prescribed offence if:
- it is in the interest of justice for the acquitted person to be retried, and
- there is fresh and compelling evidence against the acquitted person in relation to the offence, or
- the acquittal was tained.
The Court may order a person to be retried for murder or a prescribed offence, even if they had been charged with and acquitted of a lesser offence.
If the Court orders a retrial, the Court must quash the acquittal.
Prescribed offence
A prescribed offence is an offence as defined in s678 of the Criminal Code Act 1899.
Interest of justice
It is not in the interests of justice for someone to be retried unless the Court is satisfied that a fair retrial is likely.
In determining whether a retrial is in the interest of justice, the Court must consider:
- the length of time since the acquitted person allegedly committed the offence, and
- whether the police or prosecutor has failed to act with reasonable diligence or expedition in relation to the investigation of the offence or the application for retrial.
Tainted acquittal
An acquittal is tainted if the accused or someone else has been convicted of an administration of justice offence in relation to the proceedings in which the accused person was acquitted.
Fresh and compelling
Evidence is fresh if -
- the evidence was not adduced in the original trial; and
- the evidence could not have been adduced in the original trial with the exercise of reasonable diligence by the defence, or
- the evidence could have been adduced in the original trial if not for the incompetence or negligence of the prosecution.
Evidence is compelling if -
- the evidence is reliable; and
- the evidence is substantial; and
- the evidence is highly probative of the case against the acquitted person.
Allocation of a solicitor
Representation for a double jeopardy exception application will be provided on an in-house basis unless there is a conflict of interest.
Grant(s) of aid
The grant of aid for solicitor and counsel to appear at day one of a double jeopardy exception hearing is DJ1.
Extension(s) of aid
If the hearing proceeds for more than one day, the appropriate grant of aid is DJ2.
Review of decisions
A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).