R v Jason Craig LANG [2008] NSWCCA 41

R v Jason Craig LANG [2008] NSWCCA 41

The District Court judge erred in finding that the elements and facts of the two counts were identical. The first count included an element of breaking and entering and supporting facts that were absent from the alternative indecent assault count. Because the charges were pleaded in the alternative on the same indictment, the respondent was not exposed to conviction or punishment twice for the same conduct and no double jeopardy or abuse of process justified staying the alternative count.

Jurisdiction
Australia
Judgment Date
04 March 2008
Procedural Posture
Crown Appeal Under S 5 F of the Criminal Appeal Act 1912 / Appeal From a District Court Ruling Staying Proceedings on the Alternative Count on an Indictment
Outcome
Crown appeal allowed. Order of Toner DCJ staying prosecution on the alternative count quashed.
Legal Topics
['crown Appeal' 'stay of Proceedings' 'alternative Counts on Indictment' 'double Jeopardy' 'autrefois Acquit/autrefois Convict' 'abuse of Process']
['criminal Law' 'criminal Procedure'] ['crown Appeal' 'stay of Proceedings' 'alternative Counts on Indictment' 'double Jeopardy' 'autrefois Acquit/autrefois Convict' 'abuse of Process']

Case Brief

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Procedural Posture

Crown Appeal Under S 5 F of the Criminal Appeal Act 1912 / Appeal From a District Court Ruling Staying Proceedings on the Alternative Count on an Indictment

Legal Issues

  1. 1 ['Whether the doctrine of double jeopardy attaches to the formulation of charges in the alternative on the same indictment.' 'Whether the elements and facts of the principal count and the alternative count were identical so as to support a stay of proceedings on the alternative count.' 'Whether the District Court order staying prosecution on the alternative count should be quashed.']

Ratio Decidendi

The District Court judge erred in finding that the elements and facts of the two counts were identical. The first count included an element of breaking and entering and supporting facts that were absent from the alternative indecent assault count. Because the charges were pleaded in the alternative on the same indictment, the respondent was not exposed to conviction or punishment twice for the same conduct and no double jeopardy or abuse of process justified staying the alternative count.

Court Disposition

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

Orders

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