Contents

Chapter 9
Proposal for reform

Protection against “double jeopardy”: bar to subsequent criminal prosecution

9.159As the law currently stands, if a perpetrator fully engages in an alternative programme and fulfils agreed outcomes, it would still be possible for a criminal prosecution to be brought in respect of the same conduct.656 There is an argument that a perpetrator should not be subjected to more one than penalty,657 nor have to defend themselves against simultaneous “actions”, relating to the same wrongful conduct.

9.160As outlined in Chapter 8, in order to provide sufficient incentive for a perpetrator to participate in the alternative process, we recommend that where a perpetrator participates in the alternative process and completes the entire process, including fulfilling the terms of any outcome agreement, there would be a statutory bar to subsequent prosecution of the perpetrator in respect of the same incident of sexual violence against the same victim.

9.161We therefore recommend that provision be made in legislation so that where a perpetrator participates in and completes the entire alternative process conducted by an accredited provider using an accredited programme, including fulfilling the conditions of any outcome agreement, there would be a bar to subsequent prosecution of the perpetrator in relation to the same incident of sexual violence against the same victim.

9.162The statutory bar would not apply and it would be open to the victim to lay a complaint with Police in respect of the sexual violence, which may result in criminal prosecution, in the following circumstances:

recommendation

656Section 26 of the New Zealand Bill of Rights Act 1990 states that “no one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.” As no charges are laid in an alternative justice process, the sexual violence cannot properly be described as an offence and so this protection would not apply.
657There is a question as to whether participating in an alternative process is a form of second punishment or penalty, but regardless, it would be a second process. Some commentators argue that some outcome agreements may have a punitive or penalising aspect to them. Kathleen Daly “Revisiting the Relationship between Retributive and Restorative Justice” in Heather Strang and John Braithwaite (eds) Restorative Justice: Philosophy to Practice (Ashgate, Aldershot, 2000) referenced by McDonald and Tinsley “Rejecting ‘one size fits all’: Recommending a range of responses” in McDonald and Tinsley (eds), above n 588, 377 at 417 and fn 145.
658It is conceivable (and cases have been recounted to us during consultation) that during the alternative process a perpetrator may disclose drugging and raping the victim on a previous occasion. It may be agreed to include the newly disclosed incident as part of the alternative process. However, if the victim does not agree to include the incident, this would be a separately alleged incident of sexual violence that could be dealt with by way of complaint to Police.