In NSW, a person may be charged with several offences using a single set of ‘facts’.
However, the prosecution will need to be very careful with how it proceeds, because a person who is acquitted cannot normally be subjected to a further prosecution in the future using the same facts.
In most criminal cases, it is up to the prosecution to prove the elements (or ingredients) of the offences beyond reasonable doubt. It will try to do this by using the evidence that police and investigators gather during the course of the investigation, as well as any evidence from experts and other sources.
Main and alternative charges
The prosecution will often charge a person with a main charge (which is usually the most serious charge) followed by alternative or ‘backup’ charges (which are usually less serious).
An example is the case of Dwayne Beale, who was charged under the Crimes Act 1900 NSW with offences relating to two separate home invasions.
He was charged with the following offences for the first alleged home invasion:
- Robbery armed with an offensive weapon – under s97(1) (maximum penalty 20 years prison).
- Aggravated break and enter with intention to steal – under s113 (2) (maximum 14 years prison).
- Steal motor vehicle – under s154F (max 10 years prison).
He was charged with the following for the second alleged home invasion:
- Aggravated break and enter and commit a serious indictable offence namely larceny – under s112(2) (max 20 years).
- Detain person with the intention of obtaining an advantage in company – under s86(2) (max 20 years).
- Intentionally destroy property by means of fire – under s195(1A)(b) (max 11 years)
- Steal motor vehicle – under s154F (max 10 years).
He was ultimately sentenced to 15-years imprisonment.
How does it work?
The prosecution will likely aim for a conviction in respect of the most serious crime/s; which, in the above example, are the ones that carry a maximum penalty of 20 years imprisonment.
However, the most serious offences will often be the hardest to prove because they may have a greater number of elements and/or more difficult elements to establish. In some cases, they may also require proof of a particular state of mind eg an “intention” to cause a particular outcome rather than just “recklessness”.
To reduce the chance of an accused person getting off ‘scot-free’, the prosecution will often include charges that are easier to prove – which are the alternative charges or ‘backups’.
How alternative charges work
Alternative charges often have some, but not all, of the same elements as the main charge, and will usually carry lower penalties.
In some cases, the magistrate, judge or jury may find an accused person ‘not guilty’ of the main charge but guilty of the backup; for example, a person may be acquitted of drug supply but found guilty of drug possession instead.
Similarly, a person may be found not guilty of ‘assault occasioning actual bodily harm’ but guilty of ‘common assault’ on the basis that the prosecution was unable to prove that the defendant caused injuries, or that the injuries were sufficiently serious to constitute ‘actual bodily harm’.
The double jeopardy rule
The rule against double jeopardy essentially says that a person who is acquitted of charges arising out of a specific set of facts should not be prosecuted again for the same alleged facts.
Double jeopardy – a case in point
The rule against double jeopardy was invoked in the NSW case of Dodd & Dodd.
That case involved a husband and wife who sought to prevent a prosecution on the grounds of double jeopardy.
The Dodds’ home was raided by police, who located 4 grams of heroin. They also found other drug-related paraphernalia including scales and resealable plastic bags, and a large sum of money which was considered to be the proceeds of crime.
The Dodds were charged with several offences.
One of those offences was ‘drug possession’ in respect of the 4 grams of heroin. Another was ‘drug supply’ for the same 4 grams of heroin, which was charged using the ‘deeming provisions’ of section 29 of the Drug Misuse and Trafficking Act 1985 (NSW). Section 29 allows for a charge of drug supply to be brought where a person possesses at least the traffickable quantity of a drug, even if there is no evidence that the person actually supplied the drug to anyone. The charge commonly known as ‘deemed supply’. The traffickable quantity of heroin is 3 grams.
The local court dealt with the drug possession charge and the Dodds were given a fine.
The drug supply charge then went up to the District Court, where the Dodds claimed double jeopardy on the basis that the facts of the drug supply charge were already used to prove the drug possession charge.
The Court of Appeal agreed with the Dodds, and they were acquitted of the drug supply charges.
This example of double jeopardy also illustrates how the prosecution can bungle a case by getting its strategy wrong.
Exemption to double jeopardy
There is an exception to the rule against double jeopardy in NSW.
That exception is contained in section 100 of the Crimes (Appeal and Review) Act 2001 (NSW), which enables a court to order an acquitted person to be retried for a life sentence offence if it is satisfied that there is “fresh and compelling evidence” and “it is in the interests of justice to do so”.
Although a person can be charged with multiple offences over the same incident, the prosecution must be careful about how it proceeds with the charges, and that it chooses the right alternative charges.
Equally, criminal defence lawyers must be aware of all potential alternative charges to specific criminal offences – even if the prosecution neglects to list those charges in the court attendance notice or indictment.
As discussed in one of our recent blogs, an accused person can in certain circumstances be found guilty of an alternative charge even if that charge is not contained in the court attendance notice or indictment.
Being aware of alternative charges can help a criminal defence lawyer to protect clients against being found guilty of those alternatives. Knowledge of alternatives is also vital for negotiating favourable outcomes when the prosecution evidence is strong – which can be achieved by offering guilty pleas to minor charges on condition that the prosecution withdraws the remaining, more serious charges.
Thorough knowledge and sound strategy can often mean the difference between a client being sent to prison on the one hand, and being acquitted or otherwise remaining out of prison on the other.
If you are facing serious criminal charges, always contact a specialist criminal law firm for advice and assistance.