R v Jason Craig LANG - [2008] NSWCCA 41

New South Wales
Court of Criminal Appeal

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.

HEARING DATE(S): 10 December 2007

JUDGMENT DATE:
4 March 2008

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.

CATCHWORDS: CRIMINAL LAW – Crown appeal against stay of proceedings on alternative charge on indictment – whether doctrine of double jeopardy attaches to formulation of charges in the alternative – elements and facts of each count not identical – no element of double jeopardy

LEGISLATION CITED: Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: AJS v The Queen [2007] HCA 27; 81 ALJR 1208
Green v United States (1957) 355 US 184
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)

FILE NUMBER(S): CCA 2007/3930

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)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0055

LOWER COURT JUDICIAL OFFICER: Toner DCJ

LOWER COURT DATE OF DECISION: 8 August 2007

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].

JASON LANG

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jason Craig LANG

Details

AGLC: R v Jason Craig Lang [2008] NSWCCA 41
Case: [2008] NSWCCA 41
Decision Date: 4 March 2008

CaseChat Overview and Summary

The case of R v Jason Craig Lang involves an appeal by the Crown against a decision to stay proceedings on an alternative charge on indictment. The appellant, Lang, was initially charged with multiple offences, including robbery, assault with intent to rob, and aggravated burglary. The trial judge decided to stay the proceedings on the alternative charges, ruling that the doctrine of double jeopardy did not apply as the elements and facts of each count were not identical. The Crown appealed this decision, arguing that the doctrine of double jeopardy should have prevented the trial judge from staying the alternative charges.

The central legal issue before the court was whether the doctrine of double jeopardy applies to the formulation of charges in the alternative. The Crown contended that the doctrine should prevent the trial judge from staying alternative charges when the elements and facts of each count are not identical, thus ensuring that a defendant could not be tried again for the same offence. Lang, on the other hand, argued that the trial judge had correctly applied the law by staying the alternative charges, as the elements and facts of each count were distinct.

The court found in favour of Lang, affirming the trial judge's decision to stay the proceedings on the alternative charges. The court reasoned that the doctrine of double jeopardy does not attach to the formulation of charges in the alternative where the elements and facts of each count are not identical. The court emphasised that the doctrine of double jeopardy is intended to protect a defendant from being tried again for the same offence, and where the charges are distinct, this protection does not apply. Consequently, the court held that the trial judge was correct to stay the alternative charges, as they did not share identical elements and facts with the primary charge.

The court's decision concluded that the doctrine of double jeopardy did not prevent the trial judge from staying the alternative charges. The court confirmed that the trial judge had correctly applied the law by distinguishing between the elements and facts of the charges. As a result, the Crown's appeal was dismissed, and the stay of proceedings on the alternative charges was upheld.

Orders