一罪兩審 Double Jeopardy

OVER the past four years, Philip Leung has wept many times for his dead lover, Mario Guzzetti. But on Thursday, after he was acquitted for a second time of his partner's killing, he wept for himself.

Mr Leung, 50, is the first person in NSW legal history to be tried twice over the same homicide investigation. The case was only possible because of the state's controversial double jeopardy laws, introduced in 2006. Now he wants the legislation reversed to prevent anyone else being tried for the same death twice; what he calls the ''ultimate injustice''.

''My life will never be the same,'' he told The Sun-Herald. ''Not only did I lose the man I love, I was accused of killing him. Before I knew it, I was locked up in jail. Nobody cared that I missed Mario's funeral, or that I had as many questions as anyone.''

Mr Leung, a jeweller, began dating Mr Guzzetti in 2001. The pair shared common interests, including opera, and by 2004 they were living together.

''We loved each other unconditionally. Like everyone, we argued occasionally and always over silly things.''

On the morning of April 7, Easter Saturday, in 2007, a row erupted over a tiler's bag of cement that was obstructing access at their home in Alexandria. About the same time, neighbours heard a loud noise, like a shelf falling. After several minutes' silence, Mr Leung was heard wailing hysterically.

The first witnesses at the scene found him at the foot of the stairs, rocking back and forth while cradling his blood-stained partner, who had sustained head injuries. Mr Guzzetti , 72, had stopped breathing by the time ambulance officers arrived. Later that morning Mr Leung was charged with murder, accused of killing Mr Guzzetti with a juicer the couple owned.

He spent more than five months in jail before being released on bail. At his trial, in May 2009, prosecutors alleged that Mr Leung had inflicted the injuries. Medical and scientific evidence was inconclusive, stating that the injuries were consistent with both a physical attack and a fall downstairs, followed by unskilled attempts at resuscitation.

Before Mr Leung could give evidence, Justice Stephen Rothman delivered a directed not-guilty verdict, ruling that the Crown had failed to properly establish how Mr Guzzetti had died. However, prosecutors leaned on the controversial double jeopardy laws, which allow for appeals and retrials in homicide cases that are settled by a judge's directed verdict to the jury. As a result, Mr Leung was charged again, this time with manslaughter.

''I can't describe how that felt,'' he recalled. ''I was so relieved to be walking out of court for the final time [after the murder verdict]. ''They had 28 days to appeal and on the last day I received word that I would have to fight all over again.''

On Thursday, after Justice Michael Adams directed a second jury to return a not-guilty verdict, four years of emotion spilled from Mr Leung. He had just become the first person in Australian legal history to be found not guilty twice by a judge's directed verdict. ''I felt him [Mario] alongside me always,'' Mr Leung said.

''I still miss him. Only now can I finally begin to grieve the most beautiful, loving person I ever met.'' Mr Leung said he intended to sue the police for compensation.

上面這段新聞，選自5月1日的悉尼晨報，因為它具新法律概念的歷史意義，故此我需要作出評論。普通法的刑事法律制度一向都不容許用同一案情來檢控被告兩次，所謂一罪兩審。(檢控謀殺引用1年零1日的規則除外。1年零1日的規則是古舊的法律規則，香港在2000年廢除了有關規則。)時移世易，2006年新省修改法例，定下三種情況下，容許一罪兩審：

1.someone acquitted of a ‘life sentence offence’ (murder, violent gang rapes, large commercial supply or production of illegal drugs) where there is ‘fresh and compelling’ evidence of guilt;

2.someone acquitted of a ‘15 years or more sentence offence’ where the acquittal was tainted (by perjury, bribery or perversion of the course of justice); and,

3.someone acquitted in a judge-only trial or where a judge directed the jury to acquit.

本案符合第3點第2部份的準則，而並非第1點的原則，以致被告再次被檢控，而且是新法例施行之後的第一宗檢控。A judge directed the jury to acquit即是控方舉證完畢，法官覺得證據不足，無需答辯(no case to answer)，直接叫陪審團裁定被告無罪。這件兇殺案兩次的審訊，結果都是一樣，法官引導陪審團裁判被告無罪。從報導所見的案情來看，我不明白為何提出檢控，死因有可疑之處，但沒有定論，絕對存在合理疑點。

那麼一罪不能兩審是甚麼理念呢？理念是已受刑事審訊之苦的人，在最終裁決之後不應再受困擾，若被判無罪便應可重過正常生活，若被定罪則應面對適當懲罰，不應沒完沒了地一再受審訊所困擾。相反而言，若然在某人獲判無罪之後，控方獲新的強而有力的證據顯示此人有罪，此人仍可逃過法律制裁，則從社會大眾的角度來看，公義不能彰顯。又或者證人受到賄賂或威脅而不指證被告，使其得以脫罪。再者，是法官不明所以地引導陪審團判被告無罪，剝奪控方上訴機會，讓被告無端脫罪。從這些角度來看，一罪可以兩審用以保障公義。以佳寧案為例，如果一罪可以兩審，當年Barker不合理地引導陪審團判陳松青無罪的結果，便可以扭轉。(Barker因佳寧案罷官，之後在法國死於交通意外。是否意外，天曉得。牽涉在這件案的人死於非命的，難以置信地多。)

香港法律改革委員會在2010年3月11日也就一罪兩審發出諮詢文件，建議類似新省的做法，採用一罪兩審的原則，至今尚沒有定論。

前面提過1年零1日的規則，有興趣看這法律規則的歷史發展的朋友，可以登入香港法律改革委員會的網頁，搜尋Report On The Year And A Day Rule In Homicide來看。