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Court of Criminal Appeal 4 March 2008

R v Jason Craig LANG

[2008] NSWCCA 41

Sexual offencesPublic order & justice offences
CRIMINAL LAW NO ELEMENT OF DOUBLE JEOPARDY

Citation: R v Jason Craig Lang [2008] NSWCCA 41
Court: Court of Criminal Appeal, New South Wales
Date: 4 March 2008
Judges: Grove J, Simpson J, Barr J

Background

The respondent was arraigned in the District Court at Coonamble on an indictment containing two counts pleaded in the alternative. The primary count alleged that he broke and entered a dwelling house, knowing a person was inside, and committed an act of indecency on the complainant. The alternative count charged him with the same act of indecency, but omitted the breaking and entering element entirely. The Crown included the alternative count because it anticipated difficulty proving the break-in to the required standard.

Before trial, defence counsel applied for a stay of proceedings on the alternative count, relying on authorities concerning the doctrine of double jeopardy (also known by the Latin pleas of autrefois acquit and autrefois convict, meaning, respectively, that an accused has already been acquitted or convicted of the same matter). Toner DCJ granted the stay, reasoning that the elements and facts of both counts were identical, and that an acquittal on the first count would give rise to a plea in bar against the alternative.

The Crown appealed to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether the doctrine of double jeopardy applies to alternative charges on the same indictment where the elements of each count are not identical.
  • Whether the District Court correctly characterised the two counts as having identical elements and identical underlying facts.
  • Whether the authorities cited by the respondent supported staying proceedings on the alternative count.

Decision

Simpson J, with whom Grove J and Barr J agreed, held that the District Court's central finding was plainly incorrect. The two counts did not share identical elements: the primary count contained an element of breaking and entering that the alternative count did not. The facts required to prove that element were likewise absent from the alternative. Although the indecency conduct underlying both counts arose from the same alleged incident, that overlap did not render the counts identical either in their elements or in their supporting facts.

Simpson J observed that this finding alone was sufficient to dispose of the appeal in the Crown's favour. The established rule, drawn from Pearce v The Queen, is that a plea in bar is available only where the elements of the offences charged are identical, or where all elements of one offence are wholly included within the other. Neither condition was satisfied here.

The Court also examined the cases on which the respondent had relied. It noted that Pearce involved cumulative (not alternative) charges, and that AJS v The Queen concerned double jeopardy after a conviction on one count with no verdict returned on the alternative. Neither decision supported the order made below. Simpson J noted that senior counsel for the respondent was ultimately unable to resist the point that accepting his construction of those authorities would overturn 200 years of accepted criminal pleading practice, and nothing in those judgments suggested any such intention.

The Court concluded that, on no view of the proceedings, was the respondent at risk of double jeopardy in the substantive sense. Pleading two charges in the alternative on the same indictment ensured he faced no prospect of conviction or punishment twice for the same conduct, and no additional ordeal beyond what a single trial entailed.

Orders Made

  • Crown appeal allowed.
  • Order of Toner DCJ staying prosecution on the alternative count quashed.

Key Takeaways

  • The doctrine of double jeopardy, including the pleas of autrefois acquit and autrefois convict, does not attach merely because two counts on an indictment arise from the same incident; the elements of the offences must be identical, or all elements of one must be wholly included in the other.
  • The District Court erred in finding that the two counts shared identical elements and facts: the presence of a breaking and entering element in the primary count, absent from the alternative count, was sufficient to distinguish them.
  • Pleading charges in the alternative on a single indictment is a conventional and long-established feature of criminal practice; a stay of an alternative count is not warranted simply because the underlying conduct overlaps with the primary count.
  • Pearce v The Queen (1998) 194 CLR 610 was confirmed as the governing authority: a plea in bar is available only where the offences charged are elementally identical or one is wholly subsumed within the other.
  • Alternative pleading of this kind does not expose an accused to the mischief that double jeopardy protections are designed to prevent, namely repeated prosecutions, multiplied punishment, and compounding anxiety and expense.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F

Cases
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- AJS v The Queen [2007] HCA 27; 81 ALJR 1208
- Island Maritime Ltd v Filipowski; Kulkarni v Filipowski [2006] HCA 30; 226 CLR 328
- Green v United States (1957) 355 US 184
- Stanford v R [2007] NSWCCA 370