R v Jason Craig LANG

Court of Criminal Appeal (NSW)|2007-12-10|Before: Grove J, Simpson J, Barr J

CITATION: R v Jason Craig LANG [2008] NSWCCA 41 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Grove J at 1; Simpson J at 3; Barr J at 21

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

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

PARTIES: Regina (Applicant) Jason Craig Lang (Respondent)

COUNSEL: D Frearson SC (Applicant) J Stratton SC/S Robson (Respondent)

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Applicant) S O'Connor - Legal Aid Commission (Respondent)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/3930

GROVE J SIMPSON J BARR J

4 March 2008 R v Jason Craig LANG Judgment 1 GROVE J: I agree with Simpson J that the appeal must be allowed and the order staying proceedings on the alternative count quashed for the reasons which she has given. 2 I also agree with the additional observations which her Honour has made. 3 SIMPSON J: This is a Crown appeal under s 5F of the Criminal Appeal Act 1912 following a ruling made in the District Court in Coonamble by Toner DCJ on 8 August 2007. The respondent was arraigned on an indictment charging two counts in the alternative. Having heard argument his Honour stayed proceedings on the alternative count. It is that order that is the subject of the present appeal. 4 The relevant facts and circumstances may be stated briefly. The indictment upon which the respondent was arraigned was in the following terms: " JASON LANG

On 8 September 2005 at Walgett in the State of New South Wales, knowing that a person was in a dwelling house situated at 82 Wareena Street, did break and enter that dwelling house, and did commit a serious indictable offence therein, namely did assault [the complainant] and at the time of such assault committed an act of indecency on [the complainant].

AND The Director Public Prosecutions FURTHER CHARGES in the alternative that JASON LANG

On or about 8 September 2005 at Walgett in the State of New South Wales, did assault [the complainant], and at the time of such assault, did commit an act of indecency on [the complainant]." 5 The case the Crown proposed to make was outlined, on 7 August 2007, by the Crown Prosecutor. The Crown alleged that, during the night of 7 September 2005 and/or the early hours of the following morning, the respondent broke into the residence of the complainant, with whom he was acquainted (but not in any form of sexual relationship), entered her bedroom, and indecently assaulted her. 6 The alternative charge was pleaded because the Crown Prosecutor perceived some difficulty in proving, to the requisite degree, that the respondent had broken into the premises. His caution may have been well founded: see Stanford v R [2007] NSWCCA 370. 7 At the outset of these reasons it may be observed that pleading in this way is conventional and well recognised. Notwithstanding that, counsel who represented the respondent in the District Court sought a stay of proceedings on the alternative count, invoking authorities concerned with the doctrine of double jeopardy, sometimes also known as autrefois acquit/autrefois convict. 8 After hearing extensive argument, and delivering a lengthy judgment in which he made detailed reference to the authorities to which he had been referred, Toner DCJ acceded to the application and made the order mentioned above. 9 The nub of his reasons may be found on the very last page of an 11 page judgment. His Honour said: " Here the undisputed proposition that both the elements and the facts of each count are identical is determinative.

I am of the opinion that it would be an abuse of process to allow the indictment to go forward pleaded as it presently is.

I find that if the jury acquitted on the first count the accused would have a plea in bar to the alternative. " (italics added) 10 The factual statement contained in the first extracted sentence is plainly incorrect. Neither the elements of the two offences charged nor the facts proposed to be proved to support the two counts on the indictment were identical. The first count contained an element of breaking and entering that is absent from the second. The facts to support that element are also absent from the second count. It is true that the element of indecent assault, and the alleged facts upon which that part of each charge is based, arise out of the same alleged conduct on the part of the respondent. That, however, does not make the two charges identical either as to elements or as to facts. 11 That, in my opinion, is sufficient to dispose of this appeal. The Crown must succeed. 12 However, it is as well to comment, briefly, upon the authorities upon which reliance was placed. The first of these was Pearce v The Queen [1998] HCA 57; 194 CLR 610. 13 The rationale for rule against double jeopardy was stated in Pearce in the majority judgment, in a passage endorsed from Green v United States (1957) 355 US 184 at 187-188, which is in the following terms: "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." 14 Pearce was a case in which an accused had been charged on an indictment charging, cumulatively, two offences: the first of maliciously inflicting grievous bodily harm with intent to do so; the second of breaking and entering a dwelling house, and, while therein, inflicting grievous bodily harm. In each case the alleged victim was the same person, and the circumstances of maliciously inflicting grievous bodily harm were the same. Having failed in an application for a stay on one or other of the two counts, Pearce pleaded guilty to each of those counts as well as a number of others. At [31] the majority (McHugh, Hayne and Callinan JJ) held that no abuse of process was involved in charging Pearce with the two counts. 15 In Pearce, the majority said: "24 … there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other."

It was, presumably, this that led his Honour to find as he did. 16 Some elaboration was given to the decision in Pearce by Gummow and Hayne JJ in Island Maritime Ltd v Filipowski; Kulkarni v Filipowski [2006] HCA 30; 226 CLR 328. Their Honours rejected a construction of Pearce that involved according some significance to the order in which charges are preferred. They said: "Pearce held that a plea in bar is available … in cases 'in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other'. The order in which the charges are preferred does not affect the availability of the plea, or the applicability of the equivalent rule …" 17 Reliance was also placed upon the decision of the High Court in AJS v The Queen [2007] HCA 27; 81 ALJR 1208. However, AJS was concerned with the applicability of the doctrine of double jeopardy in circumstances where an appellant has been convicted by a jury of the principal charge on an indictment with the consequence that the jury returned no verdict in respect of the alternative charge. The Court of Appeal (Vic) quashed that conviction and ordered a new trial (on the alternative count), although that was not expressed in the order. Although the High Court allowed the appeal, it did not interfere with the conclusion that it was open for the prosecution to re-charge the appellant with the alternative count. 18 There is nothing in any of the authorities upon which reliance was placed to support the order made in the District Court. Senior counsel who appeared for the respondent was forced to concede that, if those authorities are to be given the meaning which he urged, then the practices of the criminal courts of 200 years have been drastically altered. There is nothing in any of the judgments to suggest that that was the intention of the High Court. 19 In my opinion the Crown appeal should be allowed and the order of Toner DCJ staying prosecution on the alternative count should be quashed. 20 On no view of the present proceedings could the respondent be said to have been in double jeopardy in the sense described in Green and adopted in Pearce. The formulation of the charges in the alternative ensured that he was at no risk of being convicted or punished twice for the same conduct; and the pleading of the two charges, in the alternative, on the same indictment, ensured that he was at no risk of being subjected to embarrassment, expense or ordeal or being compelled to live in a continuing state of anxiety or insecurity. 21 BARR J: I agree with Simpson J. **********

31/03/2008 - "the" inserted and "or" inserted - Paragraph(s) Paragraph 10 second line and Paragraph 10 last line

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