Can someone be charged with the same alleged crime twice?
Especially if they win in court the first time?
No is the theory in Australian law.
This is known as 'double jeopardy'.
That rule was broken in 2000-2001 when in an attempt to silence Australia's leading corruption author Raymond Hoser, he was cited for contempt twice for the same alleged act.
In April 2000 in court, Raymond Hoser was cited for contempt in relation to two books he'd written, namely Victoria Police Corruption and Victoria Police Corruption - 2.
He won that case outright!
The books were the same books that ultimately pushed the Kennett government out of office in 1999 (just!) when in one seat (Geelong) the Liberals lost by a mere 16 votes and about 1000 books had sold prior in that electorate alone!
New Labor Attorney General Rob Hulls, adversely named in a number of other Hoser books has since 2000 been waging his own campaign against Hoser.
While being a party to the original contempt charges, he was not willing to abide by the ruling of the umpire in his own court, namely Judge Bill Gillard.
In contempt of Gillard's own ruling, Rob Hulls then recharged Hoser and publisher with the same contempt (namely to "scandalize the court" by allegedly undermining confidence in Australia's legal system).
The charge was identical to the first.
Same books, same claim, same everything!
However this time in an act that probably wasn't mere co-incidence the case was heard in front of a fellow Labor Lawyer and close friend of Hulls, Geoffrey Eames, who also happened to have been appointed to the Supreme Court by another fellow Labor lawyer, Jim Kennan.
The links between the three men are numerous and are ignored here to save space.
Judge Eames disregarded the double Jeopardy rule and allowed the case to proceed against Hoser and as expected declared him guilty, convicting and fining him.
A close friend of Eames, John Faine, whom he worked with in left-wing politics previously, was adversely named in one of the books subject to the case and so an immediate conflict of interest was obvious. There were several others as well.
Hoser appealed the judgement and then Hulls elevated Eames to the court of Appeal thereby assisting the prospect of the charges against Hoser "sticking".
There is therefore a very real prospect of Eames hearing his own appeal.
Even if he doesn't, the question needs to be asked, namely what judge of the appeal court is going to find against a ruling by another judge in the same court that they must sit with on a regular basis?
Is the preceding question fair comment or is it too contempt?
Is questioning any aspect of government operation now contempt?
Yes, it would seem so if this case against Hoser gets up.
Notwithstanding the double jeopardy implications of this case, the Eames judgement against Hoser has been described by some lawyers as the most error riddled judgement they have ever seen.
It is replete with serious factual and legal errors and has been accused of itself bringing the legal system into severe disrepute.
The consensus is that the Eames judgement and the act of recharging Hoser with the same alleged offence twice has damaged the credibility of the legal system far more than any or all of Hoser's books, which incidentally have never had their factual basis proven wrong.
If double jeopardy is allowed and Hoser is in fact convicted of the same charge that he beat in the courts in 2000, the precedent will in fact reverse one of Australia's most sacred of legal tenets.
By way of example, if double jeopardy is allowed, this precedent will allow police or others to keep charging people with the same alleged offence and going to court until they find a magistrate or judge that will side with them.
Can you imagine it?
A person beats say a charge once and then finds themselves in court the next year on the same charge and fighting it all over again.
This is what Hoser has faced and is now facing (for the third time on this single charge!), even though Hoser won it outright the first time.
Theoretically, this precedent, allowing double jeopardy, could then be used by police or others to judge shop through literally dozens of judges until they find one who will convict the targeted person.
It's understood that prosecution authorities in NSW are watching this case with interest as it is being seen as a useful way to suppress any dissent and exposure of misconduct in government.
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