Whil I agree that the fact he was charged with murder is irrelevant to sentencing, this is not an accurate statement of the legal position. Even if he had been tried of murder and found not guilty this is not equivalent to him being innocent: R v Darby (1982) 40 ALR 594.
On the contrary I don't think that that case stands for the proposition you advance. Darby was a case about co-conspirators and whether or not the old common law rule that either both are guilty (in a 2 person conspiracy) or neither are guilty. With the majority holding that they would now refuse to follow the old common law rule and allow the conviction of on conspirator to stand notwithstanding the aquittal of the other co-conspirator despite the obvious inconsistency. Thomas was acuitted and (other than the conviction of Thomas being the subject of an appeal as for Darby, which it was not), Darby remained convicted. Thomas is and was entitled to full faith and credit being given to his acquittal (the acquittal not having ben overturned).
Murphy J was correct in his assessment (despite being in the minority) that as between Crown and acquitted subject the rebuttable presumption of innocence is confirmed by the acquittal. That was not challenged by the majority, and in fact that was expressly accepted by the majaorty at [17].
Murphy J was also correct at [13] "It is irrelevant that persons may hold private reservations about the acquitted person's innocence. It is irrelevant that remedies may be available in tort or other branches of private law arising out of the conduct of the acquitted person. The relationship between the State and the accused is not to be assimilated to private law relations"
As the Crown (or sovereign for our US colleagues) is the only entity that can level a murder charge he is innoncent of that charge in the Australian jurisdiction. Let us leave out, for the time being, the issue of private informations (the process). This is a dive web board after all.
As previously posted, Heath v Alabama (1985) is a really interesting read as a lawyer the concept of the each sovereign being entitled, seperately and independently, to the vindication of its laws, whilst superficially attractive has some obvious unfairness when a person has been already convicted on the same set of facts and acts and punnished again in a second trial (all the more so when that second trial is in the same country!). It is an interesting read and I would encourage anyone to read it, here's a link:
HEATH V. ALABAMA, 474 U. S. 82 (1985) -- US Supreme Court Cases from Justia & Oyez
Here's a further quote re the fifth amendment: Consequently, when the same act transgresses the laws of two sovereigns,
"it cannot be truly averred that the offender has been twice punished for the same offence, but only that by one act he has committed two offences, for each of which he is justly punishable."
In applying the dual sovereignty doctrine, then, the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power". Not sure how this works in relation to the due process amendments to the US constitution and their interpretation, possibly because there are two separate due process amendments (one for the States and one for the Feds). It will probably be interesting in about 14 months time.
Notwithstanding the above and as interesting as law is, that is the only reason I am in it, I would much prefer to talk about diving.
So on that note I had a lovely dive on the bay today bagging about 100 scallops and having a couple of nice beers and snags on the barbie for lunch. Nice day was had. No wto whip up a delicious scallop dinner.
