New frontiers in re-prosecution: double jeopardy and the ‘fresh and compelling’ evidence exception in New South Wales

In 2018 the New South Wales Attorney-General asked the Court of Criminal Appeal to allow the retrial of a person found not guilty of two murder charges at trials in 1994 and 2006. This case represents the first use of the ‘fresh and compelling’ evidence exception to the double jeopardy rule. Double jeopardy traditionally prohibits the re-trial of an accused person for the same offence following conviction or acquittal. Now, the emergence of fresh and compelling evidence enables prosecutors to challenge ‘tainted acquittals,’ thereby privileging accuracy of outcome over finality. Taking the 2018 decision of Attorney-General (NSW) v XX as a case study, this paper uses doctrinal analysis and existing procedural theory to critique the expansion of discretionary prosecutorial power. Analysis of the 2018 decision shows that the ‘fresh and compelling’ evidence test was read down to ensure that evidence previously tendered but not admitted could not be used. Given criminal trials are the only institutionally valid method of determining liability, narrow interpretations of the exception are needed to limit post-acquittal re-trial applications and ensure that trials are conducted diligently in the first instance. This paper analyses the decision, integrating it into emerging trends in double jeopardy scholarship before considering the implications of the case for prosecutorial practice.