Chapter 10
Double jeopardy

10.1In our Issues Paper, we asked nine questions about whether certain legislative provisions should be included in pecuniary penalty regimes to deal with the issue of double jeopardy.187 Our questions were based on the variety of provisions that exist in the current pecuniary penalty regimes, and essentially reflect the options that exist.

10.2There are two aspects to the double jeopardy rule. First is the idea that a person should not be subjected to more than one penalty for the same conduct that breaches the law. Second is the principle against requiring a person to defend themselves against simultaneous or numerous penalty actions relating to the same conduct. The justifications for the rule are as follows:

10.3In the criminal context, the rule is protected by section 26(2) of the New Zealand Bill of Rights Act 1990 which provides “No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.”

10.4Courts have found that section 26(2) only applies to criminal proceedings relating to an offence against the law.188 However, it is also accepted that this does not preclude the underlying principles being invoked in respect of conventional civil proceedings.189 As Thomas J put it, double jeopardy and double punishment remain an affront to common notions of fairness.190
10.5In the Law Commission’s view, the proposition that in the light of their punitive, publicly-imposed nature,191 pecuniary penalties raise double jeopardy concerns, is uncontroversial. Indeed, the High Court has considered the potential for double punishment when setting pecuniary penalties under the Commerce Act 1986.192 And, as indicated above, some pecuniary penalty statutes contain a mix of provisions directed at the issue. The range of provisions include:

10.6However, a range of approaches are taken across the statutes. There may be reasons for this that relate to the nature of the various statutory regimes, but those reasons are not abundantly clear.

10.7The Commission has concluded that, in principle, a person should not be punished by the imposition of both a pecuniary penalty and a criminal penalty in relation to the “same conduct”,193 or by more than one pecuniary penalty.
10.8We have also considered whether a statutory bar should be placed on an enforcement agency taking both criminal and pecuniary penalty proceedings against a defendant in relation to the same conduct, even where the first set or proceedings has been unsuccessful. In pure terms, the double jeopardy principle is best upheld by such a bar. In general then, we consider that individuals should not be at risk of being pursued through the courts twice for the purpose of penalising the same conduct. A number of statutes already place a bar on this.194
10.9Both of these conclusions are best responded to by a statutory bar. An explicit statement on the matter in a statute will be the clearest and most certain approach, particularly for defendants. However, we accept that there may be rare cases where policymakers may wish to leave the courts to determine the question of whether a second penalty can be imposed or second proceedings commenced. For this reason, we have categorised our proposals as Guidelines rather than Recommendations.195
187Law Commission Civil Pecuniary Penalties (NZLC IP33, 2012) [Issues Paper] at [6.87]–[6.129].
188Daniels v Thompson [1998] 3 NZLR 22 (CA) at 33.
189At 57.
190At 57–58.
191See R v Wigglesworth (1987) 2 SCR 541 at 560.
192Commerce Commission v Ophthalmological Society of New Zealand Inc [2004] 3 NZLR 689 (HC) at [44]:
I am conscious that there be no element of double punishment arising out of penalties being imposed upon the society and either of the two individual defendants. In fixing a penalty I take that into account, bearing in mind that I am clear that individual penalties are required but of a significantly lesser degree than that on the society.
See also Commerce Commission v Wrightson NMA Ltd (1994) 6 TCLR 279 (HC) at 285; and Commerce Commission v Accent Footwear Ltd (1993) 5 TCLR 448 (HC) at 451. It was also considered by Judge Aitken in the District Court when imposing statutory damages under the Credit Contracts and Consumer Finance Act 2003: Commerce Commission v Galistair Enterprises Ltd DC Auckland CRI-2007-004-4009,
6 December 2007.
193We discuss the concept of “same conduct” below.
194For example, the Anti-Money Laundering and Countering Financing of Terrorism Act 2009, s 73 provides for this as follows [note that the Act refers to “pecuniary penalties” as “civil penalties”]:
(1) Criminal proceedings for an offence under this Part may be commenced against a person in relation to particular conduct whether or not proceedings for a civil penalty under this Part have been commenced against the person in relation to the same or substantially the same conduct.
(2) Proceedings under this Part for a civil penalty against a person in relation to particular conduct are stayed if criminal proceedings against the person are or have been commenced for an offence under this Part in relation to the same or substantially the same conduct.
(3) After the criminal proceedings referred to in subsection (2) have been completed or withdrawn, a person may apply to have the stay lifted on the civil penalty proceedings referred to in that subsection.
See also Biosecurity Act 1993, s 154L; Hazardous Substances and New Organisms Act 1996, s 124F.
195See the explanation of our distinction between Recommendations and Guidelines in ch 1.