Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77; (1996) 139 ALR 27; (1996) 70 ALJR 884 (2 October 1996)

HIGH COURT OF AUSTRALIA

DAWSON, TOOHEY, GAUDRON, GUMMOW AND KIRBY JJ

WALSH APPELLANT

AND

TATTERSALL RESPONDENT

ORDER

1. Appeal allowed.

2. Set aside the order of the Full Court of the Supreme Court of South

Australia and in lieu thereof order:

(a) Appeal allowed.

(b) Quash the conviction on count 1 of the complaint.

(c) Quash count 1 of the complaint.

2 October 1996

Solicitors for the Appellant: D P Waye

Solicitors for the Respondent: Finlaysons

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Walsh v Tattersall

Criminal Law and Procedure - Counts - Particular Offences - Obtaining "by dishonest means any payment or other benefit" - Single count alleged payments obtained by dishonest means over extended period - Whether offence complete as soon as person obtains a single payment - Whether appellant charged with offence created by Act - Whether count bad for duplicity - Application of duplicity rule in relation to offences constituted by continuing activity.

Workers Rehabilitation and Compensation Act 1986 (SA), s 120(1)(a).

Acts Interpretation Act 1915 (SA), s 26.

DAWSON AND TOOHEY JJ. The appellant was charged on five counts with offences under s 120(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) ("the Act"). Counts 2, 3 and 4 were dismissed. Count 5 apparently was withdrawn.

Count 1, which is the subject of this appeal, alleged that the appellant obtained by dishonest means payments or benefits under the Act. This is a reference to par (a) of s 120(1). At the relevant time the sub-section read:

"A person who -

(a) obtains by dishonest means any payment or other benefit under this Act;

(b) dishonestly claims to be entitled to a payment or other benefit under this Act;

is guilty of an offence.

Penalty: $10,000 or imprisonment for one year."

Count 1 was particularised as follows:

"Patrick Walsh between October 1992 and October 1993 did obtain by dishonest means from the Womens and Childrens Hospital ... payments or benefits being:

(i) payments of income maintenance amounting to $21,891.20

and

(ii) payment of medical, rehabilitation and like expenses amounting to $6,789.79

by dishonestly pretending that by reason of the effects of alleged injuries namely anxiety and depression allegedly suffered by him in the course of his employment in July 1991 ... he required and thereby incurred medical and ancillary expenses and was incapacitated for work, whereas he was not so incapacitated."

Section 22A(1) of the Summary Procedure Act 1921 (SA) reads:

"Every information, complaint, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge."

No further particulars were sought by the appellant.

The appeal was brought essentially on the ground that the complaint and conviction with respect to count 1 were bad for duplicity. That point was first taken on appeal against conviction, before the Full Court of the Supreme Court of South Australia. It had not been raised in the proceedings in the Court of Summary Jurisdiction in which the appellant was convicted. Nevertheless, failure to take the objection at trial does not preclude the appellant from raising it on appeal[1]. The Full Court dismissed the appeal. To assess the argument presented by the appellant, it is necessary to say something about the facts.

The appellant was employed as a cashier at the Womens and Childrens Hospital. On his return to work after annual leave on 23 July 1991, he was interviewed by police officers regarding a theft of money from the cashier's office some two months earlier. Following that interview he was given leave without pay and was sent home. He saw Dr Ilic that day. In October 1991 he was charged with larceny and embezzlement. Those charges were dismissed in June 1992 following a hearing. In September 1991, July 1992 and August 1992 he was offered alternative clerical employment at a different location. He declined those offers.

When the appellant saw Dr Ilic on 23 July 1991, he complained of feeling stressed and persecuted, with belly churning, chest tightness and headaches. He could not face going back to work. The doctor gave him a medical certificate covering four days. Before the certificate had expired the appellant's employer gave him special leave with pay. This ceased on Friday, 4 October 1991 and the appellant was required to return to work after the weekend, that is, on 7 October. However Dr Ilic certified the appellant unfit for work, due to anxiety and depression, from 7 to 20 October 1991. Dr Ilic and a psychiatrist Dr Kutlaca, to whom the appellant was referred, certified the appellant unfit for work for the period thereafter until 30 November 1992.

On 25 October 1991 the appellant gave a Notice of Disability, thereby instituting a claim for compensation under the Act. The claim was based on anxiety and depression as a result of being falsely accused of wrongdoing. It is unnecessary to trace the steps taken by the appellant and his employer under the Act, except to say that initially the employer rejected the claim and the appellant then sought a review under the Act. A review became unnecessary when, at the end of October 1992, the employer accepted the claim. Payments of income maintenance were continued from 8 October 1992 until 6 November 1993. The amount of $21,891.20 referred to in the complaint was the subject of nine separate payments. The prosecution called a number of witnesses to give evidence of the appellant's activities during the time he claimed to be unfit for work. Much of that evidence related to his participation in the work of a legal practice, amounting, it was said, to the role of an office manager.

In the Full Court Prior J, with whom Doyle CJ and Williams J agreed, summed up the case against the appellant in the following way:

" The prosecution's case was that by August of 1992, the appellant had recovered from any anxiety or stress resulting from what had happened when he returned to work in July 1991 and that from that time onward he persisted in and pursued his claim for payments pursuant to Workers Rehabilitation and Compensation Act by feigning illness when the fact was that he was not then suffering from anxiety and depression which incapacitated him from performing any work. The prosecution's case was that the appellant's course of conduct amounted to one compendious false pretence of incapacity for work."

It is clear that the magistrate accepted the case in the way his Honour described it. It is therefore unnecessary to consider in any detail the various medical certificates and the appellant's activities during the period specified in the complaint.

Where then is the duplicity of which the appellant complains? It lies in the argument that an offence under s 120(1)(a) of the Act is complete as soon as a person obtains by dishonest means "any payment or other benefit" under the Act. (The appellant's argument did not relate to any of the other counts in the complaint and summons against him.) That is no doubt correct, so long as it is understood that "payment" and "benefit" in par (a) include the plural[2] and that a course of conduct may be involved. The next step in the argument is that it is wrong to add up the payments and benefits obtained by the appellant over a period of time and to join them in one count. This, it is said, constitutes duplicity because a number of alleged offences are contained in the overall charge. It is at this step that the argument breaks down. It is true that count 1 did embrace a number of payments. But the case against the appellant was not that on each occasion he received a payment there was a separate dishonest pretence that he was incapacitated for work. That is a case that the prosecution might have sought to make out. If it had, the count would have alleged the commission of a number of offences. A question might then have arisen as to the joinder of those charges in one complaint[3]. But it would have been a different case to the one which the appellant faced.

The case against the appellant was that in the period specified, between October 1992 and October 1993, there was, in the words of Prior J, a course of conduct which amounted to one compendious false pretence of incapacity for work. In other words, the appellant dishonestly put forward to his employer a case of incapacity for work and dishonestly maintained that case by presenting medical certificates and receiving payments under the Act. In this respect it must be appreciated that the magistrate was presented with a statement of agreed facts and documents pursuant to s 34 of the Evidence Act 1929 (SA). Paragraph 15 of that statement reads:

"Following acceptance of the claim the Hospital commenced making payments of income maintenance and paid also the defendant's medical and rehabilitation expenses. The Hospital continued to make the said payments on the basis of continuing representations of incapacity as conveyed by medical psychiatric and psychological reports together with medical certificates. (The schedule attached hereto sets out the said payments.)"

The proscription against duplicity is succinctly stated by Archbold[4]:

" The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences ... This rule though simple to state is sometimes difficult to apply. ... Duplicity in a count is a matter of form, not evidence".

The rule has been described as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and so that he has the opportunity of making a no case submission or a sensible plea in mitigation[5]. That duplicity is a matter of form, not a matter relating to the evidence called to support the count, is emphasised by the Court of Appeal in Greenfield[6]. For this reason S v The Queen[7] is, in our view, not a case of duplicity[8].

The proscription against duplicity was referred to by Lord Diplock in Director of Public Prosecutions v Merriman though that case concerned a joint indictment of wounding with intent to do grievous bodily harm, against the respondent and his brother. The question was whether the respondent could be convicted if the jury found he had independently committed the offence the subject of the joint charge. His Lordship said[9]:

" The rule against duplicity ... has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."

A person may be charged with any number of summary offences in the same complaint "if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character"[10]. In that event the Court may direct that charges contained in a single complaint be dealt with in separate proceedings[11]. But that is not the situation here. As mentioned earlier, it was not the case against the appellant that by dishonest means on various separate occasions he obtained payments and benefits under the Act. The dishonest means alleged against the appellant was a continuing false pretence between October 1992 and October 1993 by receiving payments on the basis that he was incapacitated for work. The appellant, who was represented in the Court of Summary Jurisdiction, might have called upon the prosecution to specify with particularity when and in what circumstances he obtained by dishonest means the payments totalling $21,891.20 and the benefits totalling $6,789.79. But he did not do so, perhaps because in the way in which the case was conducted there was no advantage in doing so.

The judgment of Perry J in Weinel v Fedcheshen¹² deals with a somewhat similar situation. The appellant in that case was charged on various counts under s 120(1)(a) of the Act in that he dishonestly pretended that he was incapacitated for work. Count 1 specified an offence as having been committed between 1 November 1991 and 3 September 1992 and identified amounts of income maintenance and expenses which represented the totality of amounts paid to him during the period. Counts 2 to 60 identified separate occasions and particular amounts. He was convicted on count 1. It does not appear how counts 2 to 60 were disposed of except that there was no conviction on any of those counts. The conviction on count 1 was challenged on the ground that the count was bad for duplicity.

After an exhaustive survey of the authorities, Perry J rejected the argument of duplicity, saying that "the prosecution was based from start to finish upon an alleged course of conduct on the part of the defendant"[13]. In Weinel v Fedcheshen there seems to have been a complete correlation between the amounts particularised in counts 2 to 60 and the overall figures mentioned in count 1. And the dates specified in counts 2 to 60 all fell within the period specified in count 1. No such correlation is present in the case now before the Court. Indeed counts 2, 3 and 4 were dismissed because the prosecution failed to exclude the appellant's version of the circumstances relating to those counts. But there was, as in Weinel v Fedcheshen, a course of conduct constituting a false pretence of incapacity, as a result of which the appellant received a number of payments under the Act.

Johnson v Miller[14], to which reference was made in argument, was not decided in terms of duplicity; rather the question was whether the complaint was defective in substance. But there are passages in the judgment which bear on the important principle, relevant to duplicity, that "a specific charge has been stated and is known to the court, to the defence and to the prosecutor"[15]. In the course of his judgment Dixon J said[16]:

"[T]he question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge".

As Barwick CJ observed in Montgomery v Stewart¹⁷, the majority in Johnson v Miller accepted the view that the relevant statutory provision created a separate offence in respect of each person who was seen coming out of licensed premises, unless perhaps those persons were acting in combination.

In the present case, the appellant could be in no doubt as to the case to be presented against him which was that he misrepresented that he was incapacitated for work and maintained that misrepresentation during the period specified in the complaint, obtaining thereby various payments under the Act. As Prior J observed, what was involved was one activity of a continuing kind. In that situation it is legitimate to bring a single charge[18]. While analogies are not always a sure guide, the way in which the case against the appellant was presented bears similarities to the concurrence of separate acts to prove an offence of "supply" or "trafficking" in drug legislation when some though not all of those acts will themselves constitute the offence[19].

Nevertheless, the practice of laying charges of a compendious kind can place an accused in a position of difficulty. In most cases the uncertainty can be dispelled by further and better particulars. But it may be preferable, where various amounts of money are paid on different occasions, as in the present case, that more specific charges be laid. With a compendious charge, various issues might arise, such as whether the prosecution is statute barred, which are more difficult of resolution[20]. That particular issue does not arise here. The appellant also placed some emphasis on the need for proof of dishonesty at the time each payment was received. Without in any way diminishing the obligation of the prosecution to prove its case beyond reasonable doubt, that is essentially an evidentiary consideration. It does not render the count duplicitous.

In the present case, the laying of a compendious charge did not, in all the circumstances, produce duplicity. Only one offence was alleged in count 1. The appeal should be dismissed.

GAUDRON AND GUMMOW JJ. The question upon which the appeal turns is not whether in a single count the appellant was charged with more than one offence. It turns upon an anterior question. This is whether the appellant was charged with any offence created by the Workers Rehabilitation and Compensation Act 1986 (SA) ("the Act"). In our view, the appellant was not so charged and his appeal succeeds.

The facts and history of the matter are set out in the judgment of Kirby J. The appellant was convicted on count 1 in the complaint of the respondent. The "Statement of Offence" in relation to count 1 was:

"Obtained by dishonest means payments or benefits made under the Workers Rehabilitation and Compensation Act, 1986 (section 120(1) of the said Act)."

Under the heading "Particulars of Offence", it was stated in the complaint:

"Patrick Walsh between October 1992 and October 1993 did obtain by dishonest means from the Womens and Childrens Hospital (hereinafter referred to as the 'employer') payments or benefits being:

(i) payments of income maintenance amounting to $21,891.20

and

(ii) payment of medical, rehabilitation and like expenses amounting to $6,789.79

by dishonestly pretending that by reason of the effects of alleged injuries namely anxiety and depression allegedly suffered by him in the course of his employment in July 1991 (hereinafter referred to as the 'alleged work injuries') he required and thereby incurred medical and ancillary expenses and was incapacitated for work, whereas he was not so incapacitated."

At the time of the commission of the alleged offence, s 120 of the Act read[21]:

"(1) A person who -

(a) obtains by dishonest means any payment or other benefit under this Act;

(b) dishonestly claims to be entitled to a payment or other benefit under this Act;

is guilty of an offence.

Penalty: $10 000 or imprisonment for one year.

(2) A person who -

(a) aids, abets, counsels or procures the commission of an offence against sub-section (1);

(b) solicits or incites the commission of any such offence,

is guilty of an offence.

Penalty: $10 000 or imprisonment for one year.[22]

(3) Where a court convicts a person of an offence against this section, or finds a person guilty of such an offence without recording a conviction, the court must, on application by the Corporation or an exempt employer, order the person who committed the offence-

(a) to make good any loss to the applicant resulting from the commission of the offence;

and

(b) to reimburse costs incurred by the applicant in investigating and prosecuting the offence."[23]

Although the count referred simply to s 120(1) of the Act, it is apparent that the alleged offence was that created by par (a) of s 120(1). Thus the appellant was prosecuted as a person who obtains by dishonest means any payment or other benefit under the Act.

Section 120(1)(a) fixes upon the obtaining of a payment or other benefit under the statute, where that payment or benefit was obtained "by dishonest means". In a particular instance, the dishonest means by which this result is achieved may comprise a number of untrue statements or wilful non-disclosures, identified as a course of conduct extending over a period. But, once a payment or benefit is first so obtained an offence then has been completed. Where there is a temporal sequence of payments or benefits allegedly obtained by dishonest means, the ascertainment of the essential element of dishonesty will be tested at different times. That is not to deny, in the particular circumstances of a case, that the same untrue statements or wilful non-disclosures may have the necessary operative effect in relation to more than one act of obtaining. But there is no offence created of "[obtaining] by dishonest means payments or benefits under [the Act]". Yet count 1 was so expressed.

That the above is the proper construction of the legislation is supported by the terms of s 120 and the structure of the Act as a whole.

Section 46(2) operates where a compensable disability has arisen from employment by an exempt employer. It renders the exempt employer liable to make all payments of compensation to which any person has become entitled in consequence of the occurrence of that disability. Section 35 creates an entitlement to weekly payments in respect of a compensable disability resulting in incapacity for work. Section 32 confers an entitlement for certain costs reasonably incurred by the worker in consequence of having suffered a compensable disability. The costs are those detailed in s 32(2). These include the cost of medical services, of hospitalisation and associated medical, surgical and nursing services, and of approved rehabilitation, as well as travelling costs. The legislation thus confers entitlements to payments of a periodic or recurrent nature.

In addition to inserting the new s 120, the 1991 Act (s 46) amended s 122 by inserting s 122(3a). This provides:

"A prosecution for an offence against this Act must be commenced within three years after the date on which the offence is alleged to have been committed."

There are difficulties in applying s 122(3a) if par (a) of the new s 120(1) is construed as permitting the rolling up in the one count of a number of acts of obtaining, which, in the context of the Act, must span a period of time, perhaps a considerable period. On the other hand, if par (a) be read according to its terms, the difficulty disappears and in any given case it will be clear whether the prosecution has been commenced within time.

Moreover, as Kirby J points out in his reasons for judgment, the giving to par (a) of the specificity which it bears on its face assists in the determination, upon conviction, of the sentence appropriate to the offence and in determining the availability, if it be relevant, of pleas of autrefois acquit and autrefois convict.

Section 120(3) is consistent with the construction considered above, whilst not itself of particular significance. It provides, in certain circumstances, for the making of an order obliging the person who committed the offence "to make good any loss to the applicant resulting from the commission of the offence" and "to reimburse costs incurred by the applicant in investigating and prosecuting the offence". The phrase "any loss to the applicant" is designed to include not only such matters as the payment or other benefit obtained by dishonest means, but also any loss resulting from the making of a dishonest claim (s 120(1)(b)) or dishonestly making a statement in relation to a claim (s 120(1)(c)).

Section 22 of the Acts Interpretation Act 1915 (SA) states:

"(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.

(2) This section does not operate to create or extend any criminal liability."

Section 26 of that statute provides:

"In every Act -

...

(b) every word in the singular number will be construed as including the plural number;

..."

Speaking of comparable provisions to those of s 26 set out above[24], the Privy Council said in Blue Metal Industries Ltd v Dilley[25]:

"Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole."

If that course be followed with the Act, then the result is that the appellant was not charged with an offence created by the Act. The Act taken as a whole, in the manner we have indicated, displays the intention to create an offence in the direct terms used in s 120(1)(a), and not otherwise. A discrete offence is completed upon the receipt of any one payment or benefit, whereas count 1 spoke of "payments or benefits" which were made under the Act and obtained by dishonest means.

In conclusion, it may be observed that the present case is to be contrasted with those dealing with an offence defined in terms of a course of conduct or state of affairs, such as keeping a disorderly house or being a rogue or vagabond[26]. There, upon proof of a series of material facts, guilt of the offence may follow, although no particular fact suffices by itself.

Further, the offence created by s 120(1)(a) of the Act may be compared with that with which this Court was concerned in Montgomery v Stewart[27]. There the statute fixed upon the single act of giving authority to issue a prospectus containing an untrue statement or wilful non-disclosure, and the character of that act did not depend upon or vary with the number of untrue statements or wilful non-disclosures to be found in the prospectus. Again, Johnson v Miller[28] turned upon the creation by s 209 of the Licensing Act 1932 (SA) of, as Dixon J put it, a distinct liability as for a separate offence in respect of each person seen coming out of licensed premises, unless, perhaps, a number of persons acting in combination were seen to come out of the premises at the same time[29].

These two authorities also concerned a characteristic not found here. This was the effect of exculpatory provisions upon the proper construction of the statute at hand. Thus, in Montgomery v Stewart the unsuccessful submission for the appellant was that the exculpatory words found in the section creating the offence so operated that, when a prospectus contained a number of untrue statements, it was impossible to give literal effect to the exculpatory words unless the section was regarded as creating separate offences in respect of each false statement. The submission was that[30]:

"the accused, in order to exculpate himself, must show that all the statements were immaterial or that he believed them all to be true whereas if he were charged separately with an offence in respect of each alleged statement he would be at liberty to show in respect of some, that they were immaterial and in respect of the others that he believed them to be true".

In the event, this Court, by majority, held that a defendant might be exculpated as to some but not others of the alleged statements in the prospectus.

Such considerations are not involved in the construction of s 120(1) of the Act.

The appeal should be allowed and the order of the Full Court of the Supreme Court of South Australia dismissing the appeal to the Supreme Court should be set aside. In place thereof it should be ordered that the conviction on count 1 in the complaint be quashed and that count 1 be quashed.

It will be for the complainant or any other appropriate authority to determine whether any further prosecution be commenced by fresh complaint.

KIRBY J. This appeal involves consideration of the rule against duplicity in criminal pleadings. It was so argued before the Full Court of the Supreme Court of South Australia, on the special leave application and when the appeal was heard by this Court. It is therefore the basis upon which I will approach the issues in contest.

Criminal pleadings: original strictness and modern relaxations

The common law developed the rules of criminal pleadings for the protection of the liberty of the subject. It required that a person, accused of the commission of a crime, should be informed fully and precisely of the charges contained in the accusation. One rule which evolved from this general principle was the rule against duplicity. No count in any indictment, presentment, information or complaint might charge a person with the commission of more than one offence[31].

The rule against duplicity in common law procedure may be traced to decisions of the courts in England at least as early as the 17th century[32]. But in this century, and in this Court, it has been upheld and stringently applied in a consistent series of decisions: Johnson v Miller[33]; Iannella v French[34]; and S v The Queen[35]. The same strictness has been evident in the Federal Court of Australia: Dillon v Chin[36]. It may also be seen in a number of decisions of State Supreme Courts and Courts of Criminal Appeal: see Byrne v Baker[37]; R v Traino[38]; R v McMullen[39]; and Stanton v Abernathy[40].

In recent years, courts in England have embraced a less stringent approach to complaints about duplicity. They have done so by taking what they have described as a "practical" or "commonsense" approach and by rejecting what they have called "technicalities which have no relevance to modern procedure in criminal prosecutions": Director of Public Prosecutions v Merriman[41]. This approach has gained a degree of support from some academic writers, impatient about the potentiality of the rule against duplicity to afford a technical refuge to an accused person otherwise lacking a case with substantive merit: see for example Glanville Williams, "The Count System and the Duplicity Rule"[42]; Solhany, "Duplicity - Is the Rule Still Necessary?[43]" and Hunter, "Prosecutors' Pleadings and the Rule Against Duplicity[44]". The English authorities, and some of the impatience with technicality that lay behind academic criticisms, have lately led a number of Australian courts to depart from the rule of stringency suggested by the old line of authority: see for example Giretti and Giretti[45]; Daly v Medwell[46]; R v Locchi[47]; and Hamzy[48]. In South Australia, the Merriman approach was favoured in Weinel v Fedcheshen[49]. That decision was substantially embraced by the Full Court of the Supreme Court of South Australia in this case[50].

Thus, behind the resolution of this appeal lies an important question of legal policy. Scholarly analysis of judicial decisions on this subject has produced scathing criticisms, suggesting a failure on the part of the judiciary to identify the applicable principles[51]. Only by clarifying the essential reasons for the earlier stringent approach of this Court, for example in Johnson v Miller[52], will a coherent doctrine be found which can accommodate demands for a more "modern", "practical" and "commonsense" rule but which is still appropriate to the accusatory character of criminal procedure in Australian courts.

A disputed compensation claim and criminal charges

Some of the complex facts of this case need to be understood for the resolution of the point now before the Court.

Between 1975 and 1991, Mr Patrick Walsh ("the appellant") was employed by the South Australian Health Commission ("the Commission") to perform clerical duties in public hospitals in Adelaide. On 23 July 1991, he was given leave with pay. Upon return, however, he was immediately stood down on leave without pay. Thereafter, he did not work again for the Commission. The standing down arose out of an accusation that he had stolen and fraudulently embezzled certain moneys received by him as an employee of the hospital. On 3 October 1991 a summons was served upon him charging him, on information, with two offences. The first involved theft as a servant of the sum of $1,255 and the second fraudulent embezzlement of $100.

Pending the resolution of the criminal charges and a "formal disciplinary inquiry" which might follow, the appellant was offered alternative duties in another hospital but under condition that it was "inappropriate ... for you to return to your cashier duties until this matter is resolved". Through his solicitors, he rejected this offer, which was subsequently repeated. At all times, he protested his innocence of the allegations of theft and embezzlement.

The appellant's pay having been stopped, on 25 October 1991, he instituted a claim for compensation against the Commission pursuant to s 30 of the Workers Rehabilitation and Compensation Act 1986 (SA), ("the Act"). A notice of disability with the supporting medical certificate were supplied to the Commission, the latter dated 7 October 1991. The appellant claimed that he was suffering from anxiety and depression caused by the false accusation and its consequences.

The Commission rejected the claim. The appellant applied for review pursuant to s 95 of the Act. The hearing of the review was delayed pending the outcome of the criminal charges which were heard in May 1992 by Mr T Iuliano SM. On 22 June 1992, the magistrate dismissed the charges. The workers' compensation review hearing was then listed to take place on 25 August 1992. Again the Commission offered the appellant work but in a different capacity and at a different hospital. Through his solicitors, the appellant again declined the offer. He supplied medical reports supporting a diagnosis of depression and anxiety "directly related to his recent work experience". The solicitors supplied a psychiatric report from Dr David Kutlaca. The specialist reported that the appellant's mental state had improved dramatically after the dismissal of the criminal charges but had relapsed when he became aware that the Commission "retained the right to take internal disciplinary proceedings against him". In July 1992, Dr Kutlaca expressed the opinion that the appellant:

"is presently fit to return to duties within his abilities and experience, provided these are at all times carried out in circumstances of interpersonal equity".

On 28 August 1992, the same specialist reported in new circumstances where the proposal of internal disciplinary proceedings had been dropped and the claim for compensation had been accepted. Because of continuing upsets, Dr Kutlaca reported:

"I am of the view that [the appellant] is not presently fit to return to work, although this ought to occur relatively soon ... I can see no psychiatric objection to deployment elsewhere if he agrees to this."

On the basis of the appellant's incapacity for work, supported by certificates provided (the last of which from Dr Kutlaca was dated 12 October 1992), the Commission directed its insurer to notify the appellant that it accepted the claim "for the closed period 7 October 1991 to 14 November 1992". What happened then is the subject of evidence in the proceedings brought against the appellant which gave rise to the present appeal.

According to a statement of agreed facts and documents tendered in the Adelaide Magistrate's Court in those proceedings[53], it was agreed:

" Following acceptance of the claim the Hospital commenced making payments of income maintenance and paid also the defendant's medical and rehabilitation expenses. The Hospital continued to make the said payments on the basis of continuing representations of incapacity as conveyed by medical psychiatric and psychological reports together with medical certificates."

By June 1993, however, the Commission had evidence which suggested that the appellant had been engaged in employment whilst in receipt of payments under the Act. The Commission reported its discoveries to the police. The materials before this Court demonstrate that, on 27 June 1993, an interview took place between the appellant and a Detective Senior Constable in the Anti-Corruption Branch of the South Australian Police. The police notified the appellant that he was to be charged with "30 counts of obtaining a benefit by dishonest means under Section 120(1) [of the Act]". For the moment, it is sufficient to note the date and the foreshadowing of 30 counts. Curiously enough, notwithstanding the interview and the foreshadowed charges, the Commission continued to make payments to the appellant under the Act. On 1 July 1993 the appellant supplied a statement in which he acknowledged that he had performed various employment tasks, including in the offices of a public accountant and of his former solicitor. He asserted that the hours were irregular, that they were based on friendship and were performed to keep his mind occupied rather than sitting at home doing nothing. He denied receiving any income from this employment.

Prosecution of the appellant was delayed. The reasons are unexplained. The Commission arranged for the appellant to be examined by Dr Alan Cotton, another specialist psychiatrist. Dr Cotton's report, dated 27 July 1993 included in the recorded history an acknowledgment by the appellant that he had undertaken office and other work throughout 1992 and 1993 but, allegedly, with no, or only minor, remuneration. It concluded with the following opinion:

"[The appellant] said, despite being distressed, he coped reasonably well with the Court proceedings throughout the early part of 1992 and, when he was exonerated in June of that year, from his point of view, and his psychiatrist's point of view, he was quite fit, from an emotional point of view, to return to his old duties if they be available to him.

He said that has persisted ever since, namely, that although at times he gets upset and distressed about what has happened, he feels that all would be put to rights if he received an apology and was given his old job back which he feels sure he could do if given the opportunity. He said he certainly could work in a similar capacity elsewhere ...

He said he has also kept himself occupied, attending a lawyer friend's office for some hours per week to help out with a little office work for no remuneration ... this work recently having ceased when ... the office [was]... shut down.

Taking all of the above into account, then, although no doubt at times he gets upset and distressed about what has happened, my over-all view was that he did not really give a history of signs or symptoms of an emotional disorder of sufficient severity or perseverance to warrant the diagnosis of a disabling psychiatric illness which would prevent him from returning to his clerical duties, if they be available to him.

I understand this has been the case now for many months, and that at this time, as for some time now, he would be quite fit to return to clerical work without any residual psychiatric impediment.

He is quite clearly of this view himself."

Pursuant to this report, the Commission notified the appellant that it intended to stop his compensation payments. The appellant again applied for review. On 4 November 1993, payments to the appellant under the Act ceased. On the same day, Mr Geoff Tattersall ("the respondent"), authorised by the Commission to make a complaint, caused another summons to be issued out of the Magistrate's Court in Adelaide. It charged the appellant with five counts alleging offences against s 120(1) of the Act.

Conviction, appeal and decision of the Full Court

The first count in the complaint charged the appellant with obtaining payments under the Act by dishonest means. The particulars of the offence alleged payments of "income maintenance", as weekly compensation payments are described under the Act, amounting to $21,891.20, and payment of medical, rehabilitation and like expenses amounting to $6,789.79. The particulars alleged that the appellant had obtained such payments "by dishonestly pretending that by reason of the effects of alleged injuries namely anxiety and depression allegedly suffered by him in the course of employment in July 1991 ... he required and thereby incurred medical and ancillary expenses and was incapacitated for work whereas he was not so incapacitated".

The second count charged the appellant with making a statement in connection with a claim under the Act knowing the same to be false or misleading in a material respect. The particulars specified the appellant's statement to Dr Cotton concerning his alleged office work for no remuneration. The third count also alleged the making of a statement in connection with a claim for compensation under the Act knowing the same to be false or misleading. The particulars were similar to those given under the second count. The fourth count was in like terms. It was accompanied by like particulars. The fifth count was in like terms but the particulars related to statements made by the appellant to Dr Kutlaca concerning employment and non-remuneration whilst in receipt of compensation.

The summons was heard by Metanomski SM. On 16 December 1994, he delivered his decision. He found the elements of the charge relating to count 1 had been proved beyond reasonable doubt. He dismissed the charges contained in counts 2, 3 and 4 as not proved beyond reasonable doubt. He did not appear to deal with count 5; but it has been treated as having been withdrawn. On the first count, he convicted the appellant. He sentenced him to imprisonment for nine months. That sentence was suspended upon the appellant's entering a three year good behaviour bond and on condition that he perform 300 hours of community service work. It was ordered that the appellant repay to the respondent, representing the Commission the sum of $28,680.99, being the loss found to have been occasioned as a result of the commission of the offence. The appellant was also ordered to pay costs.

The appellant appealed against his conviction and sentence. The appeal raised various grounds. However, only one of these is presently relevant. For the first time, by his notice of appeal, the appellant complained that "[t]he complaint and/or the conviction founded thereon are bad for duplicity and/or uncertainty".

In the Supreme Court of South Australia, Lander J ordered that the appeal be referred to the Full Court[54]. The Full Court (Doyle CJ, Prior and Williams JJ) on 2 November 1995 dismissed the appellant's appeal. It rejected all of the other grounds agitated by the appellant. It dealt quite briefly with the complaint about the alleged duplicity and/or uncertainty of the count upon which the appellant had been convicted. Giving the reasons of the Court, Prior J said that it was open to the appellant to raise the objection as to the form of the complaint before the Full Court although he had not taken it before the magistrate. He referred to the recent decision of Perry J in Weinel v Fedcheshen[55] which he regarded as correct and indistinguishable from this case in its analysis of the rule against duplicity in criminal pleadings. Prior J then went on[56]:

"The same dishonest means applies to each payment made in the period referred to in the charge, namely a false pretence that the appellant was incapacitated for work between October 1992 and October 1993. Here there is no uncertainty as to the criminal act of which the appellant is convicted: [R v Traino[57]]. That being said, it must be acknowledged that there is much to favour refraining from laying charges of this compendious kind. To do so often attracts arguments when specific or representative counts are clear and unassailable. In some cases the so called compendious charge will fail for duplicity. In others, a valid compendious charge may render obscure the particular dishonest means or other ingredient of an offence that must be proved to make good a particular charge. As a general rule, individual counts are to be preferred. Nevertheless, this particular charge is not bad for duplicity. It was not unfair to charge in this way in this case. One activity of a continuing kind was involved here, an ongoing false pretence as to incapacity for work resulting in the receipt of a substantial sum of money by that one continuing dishonest means: Director of Public Prosecutions v Merriman[58]... All payments were obtained by the same means ... It was legitimate to charge in a single count one activity even though that activity involved more than one act of obtaining each of which amounted to an offence: [R v Locchi[59]]."

From the consequent order dismissing the appeal and confirming the conviction, the appellant, by special leave, has appealed to this Court.

The relevant legislation

The appellant's conviction was of an offence against s 120 of the Act. As first enacted in 1986, s 120(1) read:

"A person who fraudulently obtains any benefit under this Act is guilty of an offence.

Penalty: $5,000 or imprisonment for one year."

Subsequently, by the Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1991 (SA)[60], s 120 of the Act was repealed and replaced by the provision applicable at the time of the prosecution of the appellant. At that time, the section read, relevantly:

"(1) A person who -

(a) obtains by dishonest means any payment or other benefit under this Act;

(b) dishonestly claims to be entitled to a payment or other benefit under this Act;

knowing the statement to be false or misleading,

is guilty of an offence.

Penalty: $10,000 or imprisonment for one year.

(2) ...

(3) Where a court convicts a person of an offence against this section ... the court must, on application by the Corporation or an exempt employer, order the person who committed the offence -

(a) to make good any loss to the applicant resulting from the commission of the offence;

and

(b) to reimburse costs incurred by the applicant in investigating and prosecuting the offence."

In addition to these provisions of the Act, it is appropriate to note certain provisions of the Summary Procedure Act 1921 (SA)[61]:

"Description of offence

22A.(1) Every information, complaint, summons, warrant or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.

(2) The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.

...

Joinder and separation of charges

51.(1) A person may be charged with any number of summary offences in the same complaint (either cumulatively or in the alternative) if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character.

(2) The Court may direct that -

(a) charges contained in a single complaint be dealt with in separate proceedings; or

(b) charges contained in separate complaints be dealt with together in the same proceedings."

Indicia of the creation of separate criminal offences

The appellant's challenge to his conviction on the ground of the duplicity and/or uncertainty of the count of the complaint on which he was convicted was based partly on legal principle and partly on the application of that principle to the facts of his case.

So far as principle was concerned, the appellant argued that it was fundamental to the common law system of pleading of the counts of criminal charges (whether in a complaint, indictment or otherwise) that a high degree of specificity must be observed so that the one count does not contain duplicity which is either patent (that is, obvious on the face of the document) or latent (that is, not demonstrable on the face of the document but clear from the way in which the prosecution case is conducted).

The appellant contended that this was a case of patent duplicity or, if not, at least of latent duplicity. It was patent because, from the terms of the Act and the benefits it provided, it would be clear on the face of the charge in count 1, that included in the count were many acts of obtaining payments or other benefits, each of which would individually constitute an offence against the Act. Indeed, so much was clear from the particulars which specified different amounts alleged for "income maintenance" ($21,891.20) and for "medical, rehabilitation and like expenses" ($6,789.79). As such obtaining of payments and benefits would necessarily occur at different times, the ascertainment of the essential element of dishonesty on the part of the appellant would have to be tested at different times. This represented the essential reason why separate counts were required by law. It also explained why, originally, in the police interview, 30 counts were foreshadowed (up to 27 June 1993). According to the appellant, first thoughts were best thoughts and the course earlier contemplated by the prosecution and later recommended as desirable by Perry J in the Full Court, was the one which the law required.

The foundation for the appellant's argument was an analysis of the provisions of the Act. There are several indications in the language and history of s 120 of the Act which suggest that the legislature contemplated that each payment or benefit under the Act obtained by dishonest means was to constitute a separate criminal offence. These are:

1. Section 120, the provision for criminal offences appears in a statute which provides for periodic payments and for payments of "medical, rehabilitation and like expenses" where recoverable which, of their nature, accrue periodically.

2. Section 120(1)(a) of the Act, under which the appellant was convicted, uses the word "any" to describe a "payment or other benefit" which constitutes the offence. But the succeeding paragraph uses the indefinite article "a". These words are apt to give rise to a separate offence for a single occasion of dishonesty occasioning each payment.

3. The history of the section reinforces this conclusion by the greater specificity of s 120(1) after the amendment of the Act in 1991. Whereas previously the Act talked in terms of "any benefit", thereafter the section was expressed in terms of "a payment", "a statement" and "a claim".

4. The addition of the provision contained in sub-s (3) requiring an order to "make good any loss" and to reimburse costs of "investigating and prosecuting the offence", following conviction of an offence against the section, indicates the importance being attached to identifying "the offence" in respect of which the loss and costs were to be recoverable by such order.

5. The amendment of s 122 of the Act to insert a new sub-s 3(a) requiring that a prosecution for an offence against the Act must be commenced "within three years after the date on which the offence is alleged to have been committed" also indicates a legislative purpose of attaching consequences to the act of obtaining a particular payment or benefit. Otherwise, if all charges could be rolled up in a single count, certain payments and benefits might be outside the three year limit and hence incapable of founding a prosecution at all. Whilst this was not so on the facts of the present case involving the appellant, it was clearly a possibility envisaged by the legislature.

These considerations therefore confirm that the Act is concerned with individual payments. Offences must therefore be charged individually. In that way the Court's attention is addressed to the specificity of each offence, avoiding any temptation, upon finding dishonesty in one payment, to infer dishonesty in all. Only by such precision will the accused, and those representing the accused, know exactly what is being alleged and how the accused should plead. Similarly, such precision is necessary for proper rulings on the relevance of evidence given during the trial; upon conviction, the determination of the sentence appropriate to the offence; and the availability, should it become relevant, of pleas of autrefois acquit and autrefois convict[62].

I did not take the appellant's arguments before this Court to stop there and to assert that a rolled up count charged an offence unknown to law. The appellant's argument, as signified by his ground of appeal, was one of criminal pleading, not substantive criminal law. In most cases of alleged duplicity of criminal pleading the court, considering the challenge, is obliged to examine the substantive basis of the criminal charge or charges in question. It must then consider whether pleading rules permit the collection of several offences known to law under one count or charge or require that they be separately expressed in individual counts or charges. As that is the way (and the only way) that the parties argued the appeal, I do not consider that I should decide it upon a new and different basis.

The appellant's arguments of form and justice

The appellant insisted that his complaint in the appeal was that his conviction rested on a count which was fundamentally flawed by the form in which it had been expressed. Authority exists to the effect that in cases of duplicity, the issue is one of form, not of evidence or of injustice as such: Greenfield[63].

Nevertheless, to illustrate the reasons which sustain the rule against duplicity and the potential for injustice which duplicity may cause, the appellant also complained about the result of the "rolled up" count 1 upon which alone he had been convicted. The magistrate found that the entire amount alleged in the charge had been dishonestly obtained. But the appellant argued that there was a real question in his case as to when the dishonesty which the magistrate found proved beyond reasonable doubt existed in fact. The charge in count 1 covered the period from October 1992 to October 1993. Even assuming that dishonesty had been proved at the beginning of the period covered by the charge (as must by inference be accepted as necessary to the conviction) there were real questions to be resolved as to whether such dishonesty endured throughout the entire period. This was especially so (it was submitted) because, on 27 June 1993, the prospect of criminal charges against him under the Act was first raised by the police. It was also in issue on 27 July 1993 when the appellant was interviewed and examined for the Commission by Dr Alan Cotton. The appellant's recorded statements on that occasion indicate clearly enough that, at least by July 1993, he was presenting himself as able to return to his clerical duties and agreeing with the specialist's view that he was quite fit to work without residual psychiatric impediment. At least arguably, this recorded admission indicated that, by that time, (whatever had earlier been the case) the appellant was not obtaining any payment from the Commission by dishonest means. On the contrary, he was candidly and honestly representing his condition to the Commission's medical adviser in terms which tended to contradict a dishonest deception of the Commission. This interpretation is strengthened by the rejection by the magistrate of count 2 which alleged the giving of a false or misleading statement to Dr Cotton.

According to the appellant, the failure of the prosecutor to specify all of the offences of which he was accused with particularity (identifying separately each dishonest obtaining of a payment or other benefit under the Act) resulted in a fundamental miscarriage of his trial. Because of that failure the magistrate had not addressed, as he should have, precise attention to each individual payment or benefit, and hence to the possibility (not irrelevant on the facts) of different conclusions about dishonesty at different stages of the period encompassed by the single charge.

The respondent's arguments of "practicality"

For the respondent, these were arguments without merit, a fact confirmed by the failure of the appellant or his legal representative to raise any challenge to the count before or at the trial or to seek particulars. This is what would have been done if there was a real suggestion of a live issue of duplicity or uncertainty. The respondent denied that there was any conflict between the authority of this Court and the decision of the House of Lords in Merriman[64] or the Australian cases which have applied its approach.

The respondent laid emphasis upon the finding of adverse credibility made by the magistrate against the appellant. There was a clear basis for that finding once the magistrate had accepted the evidence of witnesses called for the prosecution who attributed to the appellant statements to the effect that he was "putting it over the shrink", that is, deceiving the psychiatrist, in order to continue to receive payments and benefits under the Act and to avoid having to return to work at the hospital. The respondent argued that, although it might theoretically be contended that each individual payment and benefit made to or on behalf of the appellant was a separate offence, as a matter of practicality and in the light of the way the case had been conducted at trial, the appellant knew that the prosecution case was, in effect, one for a "continuing offence". The initial dishonest representation of incapacity had been made and not withdrawn. Thereafter, all payments made and benefits received were tainted with the same dishonesty. It was open to the magistrate to so find.

To support the foregoing arguments, the respondent relied heavily on Lord Diplock's statement in Merriman[65]:

" The rule against duplicity, viz that only one offence should be charged in any count of an indictment ... has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."

This statement has been applied in a number of Australian decision such as Beck v The Queen[66]; Giretti and Giretti[67]; R v Traino[68]; and Hamzy[69]. As a matter of practicality, the respondent submitted, the payments to the appellant were part of a continuous course of conduct, intimately connected with one another, so as, in effect, to constitute the one continuing criminal enterprise. This Court was urged to reject such meritless technicalities. So went the arguments for the respondent.

Principles governing duplicity in criminal counts

In order to resolve the point of principle presented by this appeal, it is useful to examine a number of previous decisions in which questions of duplicity in criminal pleadings have arisen:

1. The rule against duplicity has its origin in the history of English criminal procedure. It is a product of the accusatorial trial which has long insisted upon precision in the statement of the charge which the accused has to meet: John L Pty Ltd v Attorney-General (NSW)[70]; R v Thompson[71]. Under the rule of precision, no one count of the indictment should charge the accused with having committed two or more separate offences[72]. The rule has long been regarded by this Court as an important one[73]. Even where the Court was satisfied that the accused, taking the point, had no substantive merits, except the legal merit of the objection to duplicity, the latter was held to be sufficient if the complaint as to form were made out[74]. In that event, the count of the indictment would be bad for duplicity. It would have to be quashed[75].

2. The exact origins of the rule are lost in time. But the rule can certainly be traced to periods in the history of the common law where there was severe technicality and precision with respect to pleadings generally, in some ways inimical to modern approaches to such matters which tend to be impatient with strict rules when they become obstacles to the perceived goal of attaining substantive justice. Some authors explain that the strict approach was developed by judges in a humane desire to alleviate the extreme severity of the law. They would seize upon the slightest defect in the indictment to declare it a nullity[76]. The need for such extreme strictness was in part ameliorated by the reform of criminal punishments. The passage of Jervis's Act in England[77] led, in turn, to legislation such as is now found in the Summary Procedure Act 1921 (SA). By such enactments the excessively technical approach to criminal proceedings, apt for the past, was no longer universally required. Just as in civil procedure there has been a loosening of the rigidities of technical rules where these would defeat the merits, so in criminal procedure and pleadings, there has been, to some extent, a retreat from technicality. This is evidenced in Australian decisions such as Byrne v Baker[78] and in England by Merriman[79]. Allowing for their different history and purposes, it is desirable that the same rationality and concern with justice should inform criminal as well as civil pleading and procedure.

3. Nonetheless, there are special features of criminal procedure which continue to sustain the general tendency in favour of a rule of precision and specificity which has hitherto been enforced in this branch of the law. The reasons have been given many times, including in this Court. In Johnson v Miller[80], Evatt J gave a classic exposition[81]:

"It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer."

More recently, and after Merriman was decided in the House of Lords, the same strict rule was followed in this Court in S v The Queen[82]. Gaudron and McHugh JJ explained why[83]:

"The rule against duplicitous counts in an indictment originated as early as the seventeenth century ... It may be ... that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict ...

The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet."

4. For the foregoing reasons of history, good prosecution practice and fair conduct of criminal trials, the general rule of our legal system is still this: that a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law. In the present case, the Full Court recognised that this was the general rule and the preferable prosecution practice. So much is borne out by many authorities: Marshall[84]; Willis[85]. But certain questions remain. They are: what exceptions to, or modifications of, the strict rule are allowed, and what is to happen where, as here, no objection is taken at the trial but only later on appeal?

5. The apparent artificiality of insisting on applying the rule against duplicity in its full rigour has been highlighted by actual and theoretical instances that have arisen, or been contemplated, where criminal acts occurred in very close proximity to each other. If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count[86]? If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England[87]. If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible[88]. Many of the apparently conflicting judicial opinions, so criticised by the commentators, represent nothing more than attempts by judges to characterise multiple acts upon which the prosecution relied and to decide whether or not they could be fairly viewed as the one transaction or criminal enterprise so as to escape an attack on the ground of alleged duplicity: Jemmison v Priddle[89]. The usual explanation given for adopting this approach is that, only by doing so, would the judges be able to avoid reducing the law to technical absurdity: Ballysingh[90]. See also Merriman[91], per Lord Morris[92] and S v The Queen[93], per Brennan J[94].

6. Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment[95] and trafficking in drugs[96]. Obviously, nice questions arise as to whether individual acts of supply of prohibited drugs create the same, or substantially the same, offence so as to sustain a single count and to resist an allegation of duplicity[97]. Various verbal formulae have been offered as a suggested test for whether the criminal acts are sufficiently close in time and space as to "fairly and properly be identified as part of the same criminal enterprise or the one criminal activity"[98]. These valiant attempts by judges have been criticised as "glib"[99]. Judges themselves have acknowledged that judicial views in particular cases are not always easy to reconcile: see for example Stanton v Abernathy[100]. Ultimately, what is presented is a question of fact and degree for decision in each case: Eades[101]. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct[102]. Perhaps an indication of the considerable difficulty of the task to be found in is the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion. For instance, Latham CJ dissented in Johnson v Miller[103]; Kitto J dissented in Montgomery v Stewart[104]; and Brennan J (as he then was) dissented in S v The Queen[105].

7. Because of the foregoing, it must be accepted as correct that "the courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide ... as to whether the common law rule [against duplicity] has been infringed"[106]. A choice of legal principle or policy is therefore presented in this appeal which this Court should resolve. Not a great deal of help is given to decisions in a particular case by saying that the test is to look to "the gist of the offence"[107]. Nor is much help afforded by saying that the test is whether multiple acts can "fairly and properly" be identified as part of the same criminal enterprise or activity[108]. With respect, it is not very useful to say that it is "desirable" or "preferable", where separate offences are arguably shown, that the prosecution should formulate separate charges[109]. Unless courts are prepared to support such homilies with sanctions in the case of breach they are unlikely to much influence day to day prosecution practice. Not a great deal of help to the primary decision-maker is given by suggesting that the test is whether the charge, as formulated, has the potential to confuse or embarrass the accused[110]. Clearly, a great deal depends on the nature of the offence. Where the alleged duplicity in the charge is latent, it may only be manifested by the way in which evidence is presented to support the charge[111]. It may not be until the prosecution's case is concluded that it becomes apparent that the prosecution cannot prove all of the acts that have been rolled together in a single composite charge, making plain the unsuitability of the process reliant on that charge[112]. Exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature[113]; and in other anomalous cases[114]. However, such cases apart, although the courts in England[115] and New Zealand[116] have taken a more lenient view, this Court has, until now, favoured a rule of strictness. The question is whether this Court should now soften that stance.

8. Although some writers have suggested that the law should be changed to prevent a duplicity objection being first taken on appeal (see for example Glanville Williams[117]), this is not the common law. There are many cases in England and Australia where the accused has been permitted to raise the point for the first time on appeal: R v Molloy[118]; Wilmot[119]; R v Traino[120]; Stanton v Abernathy[121]. The availability of this facility is sometimes explained on the basis that duplicity in the originating charge affects all that follows and hence the jurisdiction of the court of trial: Jemmison v Priddle[122]. Other authorities doubt this explanation: Stanton v Abernathy[123]. Still others are content to explain the entitlement to raise the point belatedly on the footing that it challenges an essential requirement of the law that "goes to the root of the proceedings"[124]. No useful purpose is served in exploring the doctrinal foundation for the right of belated challenge on the ground of duplicity of the charges. In this appeal the availability of the challenge to the appellant was never contested[125].

9. A finding that the rule against duplicitous charges has been breached does not oblige the court, coming to that conclusion, to dismiss the charge. Where the defect is one of patent duplicity, the proper course is to put the complainant to an election to remove the embarrassment[126]. Where the defect is latent and the particulars do not remove it, the court may direct further particulars; require the complainant to elect and to identify the alleged offences; and/or exercise the power to permit an amendment[127]. If the latent defect, once exposed, suggests a risk that the accused might not have a fair trial on the charges as pleaded, the court should require correction: S v The Queen[128].

The policy of precision in criminal pleading

With all respect to those who are of a different view, I cannot agree to any reduction in the strict approach to resolving questions of duplicity in the pleading of criminal charges. A strict approach has been consistently applied by this Court from Johnson v Miller[129] through Iannella v French[130] and up to S v The Queen[131], the latter having been decided in 1989. Quite apart from the consistent application of the authority of this Court, there are reasons of legal principle or policy which favour the approach of this Court and which resist the approach which has apparently found favour in England and New Zealand. These reasons are:

1. Compliance with the rule of strictness is a correct practice to require of prosecutors. It obliges them, at the outset of criminal proceedings, to define with accuracy each criminal offence which they intend to prosecute and to identify, in respect of each, the elements of the offence necessary to secure a conviction.

2. The rule of strictness is also desirable for the fair trial of the accused, basically for the reasons identified long ago in Johnson v Miller[132] and restated in S v The Queen[133]. The rule helps to address the attention of the accused (and any legal representative the accused may have) to the elements of each alleged offence. It assists in decisions about how to plead. It clarifies contested questions about the admissibility of evidence relevant to the offences so specified. It contributes to accurate sentencing where a conviction is recorded upon those offences. It also avoids later problems with respect to pleas of autrefois acquit or autrefois convict.

3. Unless a tight rein is kept upon the prosecution practice of rolling up allegedly connected events and presenting them under a single charge, much prejudice can be done to an accused person by the admission of evidence of a generally inculpatory character which would not be allowed under the similar fact rule of evidence and if the rule of specificity of pleading criminal charges continued to be insisted upon. Nowhere is this risk more evident than in cases of alleged sexual misconduct as illustrated by S v The Queen[134]. But it is also a risk present in cases such as Weinel v Fedcheshen[135], this case and perhaps others.

4. In this case, as I hope I have demonstrated, the purpose of Parliament in creating the offence under s 120 of the Act was to create a separate offence for each payment or benefit. From the point of view of the prosecution, the advantages of reducing the 30 separate charges which were originally foreshadowed by police to a single composite charge were clear enough. Proof of dishonesty at some stage in the receipt of a payment or benefit would then be likely to contaminate all other payments and benefits received. But that would divert the attention of the judicial officer deciding the case from considering an issue which would be presented clearly by individual counts but not so clearly by one "rolled up" count. That issue is whether at some stage, any dishonesty found on the part of the appellant was displaced by a mere passive payment of benefits by the Commission. If each payments and benefits had been separately charged, it would still have been open to the prosecution to suggest that an inference of dishonesty, proved beyond reasonable doubt, carried over from one early payment or benefit to those that followed. But at least the attention of the prosecutor, the accused and the judicial decision-maker would then have been focussed upon each individual offence. I believe that that is what the Act required. Moreover, it was not irrelevant to the evidence adduced in the appellant's case, particularly having regard to his interview with the police in June 1993 and his statements acknowledging his fitness to work in July 1993 made to the Commission's medical adviser. Because a "rolled up" single count was charged, none of these issues was specifically addressed. The outcome of the prosecution might have been the same. But the process would have had the necessary integrity.

5. A holding which would diminish the stringency of this Court's past authority would encourage imprecision in criminal pleading where precision is desirable. It would condone a slackness in the pleading of criminal charges which this Court has hitherto rejected. It would substitute pious words for a strict legal practice which the courts uphold. As this case demonstrates, precision is often needed because the point is not immediately seen by the accused or those representing the accused. Not all accused are legally represented. Those who are may not be adequately represented. The availability of legal representation in cases involving offences such as those charged here may decline with other demands on public legal assistance. It is therefore desirable that this Court's instruction should be addressed to the practices of prosecutors and to the attention of judicial officers.

Conclusion and orders

As in Johnson v Miller[136], the present appellant has few merits on his side; except legal merits, which are sufficient. This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges. The Act under which the appellant was charged clearly contemplated that obtaining each payment or benefit was a separate offence. Each should have been the subject of a separate charge. This was apparently the original intention of the police and perhaps of the prosecutor. Unwisely, and in my view unlawfully, it was departed from. That departure resulted in a count which manifested the defect of latent duplicity. The significance of that defect was not really demonstrated until all of the evidence was produced. The result was that nobody - prosecutor, accused or magistrate - directed attention, or sufficient attention, to the ingredients of each individual offence. That is enough to strike at the validity of the trial. As it happens, some of the evidence suggests that, in this case, separate attention to the existence of the alleged dishonesty of the appellant at different times of payments and benefits might have produced a different result. His conviction, and the orders of repayment and for costs attached to it, cannot stand.

The appellant asked for an order dismissing the complaint. However, that is not the remedy which the law now provides for a case of established duplicity. Whether the respondent wishes to persist with the prosecution is for him to decide.

For these reasons I agree in the orders proposed by Gaudron and Gummow JJ.

[1] R v Traino (1987) 45 SASR 473 at 475.

[2] Acts Interpretation Act 1915 (SA), s 26.

[3] See s 51(1) of the Summary Procedure Act.

[4] Archbold, Criminal Pleading, Evidence and Practice, (1995), vol 1 at 75.

[5] R v GMC; Ex parte Gee [1986] 1 WLR 226 at 238-239. The need for the rule has been questioned by Professor Smith: [1993] Criminal Law Review at 141.

[6] Greenfield, Barker, Creek, Mendleson (1973) 57 Cr App R 849 at 855-856.

[7] [1989] HCA 66; (1989) 168 CLR 266.

[8] See [1989] HCA 66; (1989) 168 CLR 266 at 280-281.

[9] [1973] AC 584 at 607.

[10] Summary Procedure Act, s 51(1).

[11] Summary Procedure Act, s 51(2).

12 [1995] SASC 5216; (1995) 65 SASR 156.

[13] [1995] SASC 5216; (1995) 65 SASR 156 at 170.

[14] [1937] HCA 77; (1937) 59 CLR 467.

[15] [1937] HCA 77; (1937) 59 CLR 467 at 498 per Evatt J.

[16] [1937] HCA 77; (1937) 59 CLR 467 at 489.

17 [1967] HCA 11; (1967) 116 CLR 220 at 224.

[18] Director of Public Prosecutions v Merriman [1973] AC 584 at 593 per Lord Morris of Borth-y-Gest.

[19] See for instance Giretti and Giretti (1986) 24 A Crim R 112; R v Locchi (1991) 22 NSWLR 309; Hamzy (1994) 74 A Crim R 341.

[20] See s 122(3a) of the Act.

[21] Section 120 in this form had been inserted by s 45 of the Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1991 (SA) ("the 1991 Act"). Section 120 has since been further amended by s 32 of the Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995 (SA), which substituted a new s 120(1).

[22] Offences against s 120 are to be tried summarily (s 122(3)).

[23] At the relevant time, the reference in s 120 to the "Corporation" was to "the Workers Rehabilitation and Compensation Corporation established under Part II". Section 4(b) of the Workers Rehabilitation and Compensation (Administration) Amendment Act 1994 (SA) redefined "Corporation" to mean the "WorkCover Corporation of South Australia". The Women's and Children's Hospital was an "exempt employer" within the meaning of the Act and, accordingly, within the framework of the statute, itself provided for the rehabilitation and compensation of workers who suffered injuries or disabilities arising from their employment by it.

[24] Interpretation Act 1899 (NSW), s 21.

[25] [1969] UKPCHCA 2; (1969) 117 CLR 651 at 656; [1970] AC 827 at 846. See also Bunnings Forest Products v Bullen [1994] FCA 1460; (1994) 53 FCR 438 at 445; [1994] FCA 1460; 125 ALR 429 at 435-436.

[26] Loftus v Woodworth [1936] VicLawRp 46; [1936] VLR 279.

[27] [1967] HCA 11; (1967) 116 CLR 220.

[28] [1937] HCA 77; (1937) 59 CLR 467.

[29] [1937] HCA 77; (1937) 59 CLR 467 at 483.

[30] [1967] HCA 11; (1967) 116 CLR 220 at 227.

[31] See Salhany, "Duplicity - Is the Rule Still Necessary?" (1963) 6 Criminal Law Quarterly 205. The general rule of the common law is also reflected in modern international human rights law: see International Covenant on Civil and Political Rights, Arts 9.1, 9.2.

[32] R v Stocker (1695) 5 Mod 137 [87 ER 568].

[33] [1937] HCA 77; (1937) 59 CLR 467.

[34] [1968] HCA 14; (1968) 119 CLR 84.

[35] [1989] HCA 66; (1989) 168 CLR 266.

[36] (1988) 34 A Crim R 286 at 287 per Pincus J.

[37] [1964] VicRp 57; [1964] VR 443.

[38] (1987) 45 SASR 473. See also South Australian Police v Durbridge [1993] SASC 4241; (1993) 61 SASR 22.

[39] (1990) 54 SASR 55.

[40] (1990) 19 NSWLR 656.

[41] [1973] AC 584 at 607 per Lord Diplock.

[42] [1966] Criminal Law Review 255 at 265.

[43] (1964) 6 Criminal Law Quarterly 205.

[44] (1980) University of New South Wales Law Journal 248 at 267.

[45] (1986) 24 A Crim R 112.

[46] (1986) 40 SASR 281.

[47] (1991) 22 NSWLR 309.

[48] (1994) 74 A Crim R 341.

[49] [1995] SASC 5216; (1995) 65 SASR 156.

[50] Walsh v Tattersall, Unreported, Supreme Court of South Australia, 2 November 1995.

[51] See Hunter, "Prosecutors' Pleadings and the Rule Against Duplicity" (1980) 3 University of New South Wales Law Journal 248 at 267.

[52] [1937] HCA 77; (1937) 59 CLR 467.

[53] Pursuant to s 34 of the Evidence Act 1929 (SA).

[54] Pursuant to s 49 of the Supreme Court Act 1935 (SA).

[55] [1995] SASC 5216; (1995) 65 SASR 156.

[56] Walsh v Tattersall, Unreported, Supreme Court of South Australia, 2 November 1995 at 8.

[57] (1987) 45 SASR 473 at 475.

[58] [1973] AC 584 at 593.

[59] (1991) 22 NSWLR 309 at 312.

[60] s 45.

[61] The progenitors for some of these provisions were considered by this Court in Iannella v French [1968] HCA 14; (1968) 119 CLR 84 at 89-90.

[62] R v Surrey Justices; Ex parte Witherick [1932] 1 KB 450 at 452; cf Salhany, "Duplicity - Is the Rule Still Necessary?" (1963) 6 Criminal Law Quarterly 205 at 207.

[63] Greenfield, Barker, Creek, Mendleson (1973) Cr App R 849 at 855-856.

[64] [1973] AC 584.

[65] [1973] AC 584 at 607.

[66] [1984] WAR 127.

[67] (1986) 24 A Crim R 112 at 118.

[68] (1987) 45 SASR 473 at 475-476.

[69] (1994) 74 A Crim R 341 at 346.

[70] [1987] HCA 42; (1987) 163 CLR 508.

[71] [1914] 2 KB 99.

[72] S v The Queen [1989] HCA 66; (1989) 168 CLR 266 at 280-281 per Toohey J, citing Archbold, Pleading, Evidence and Practice in Criminal Cases, 43rd ed (1988) at 46. See also Director of Public Prosecutions v Merriman [1973] AC 584 at 599 per Viscount Dilhorne citing Archbold's Criminal Pleading (1822) at 25.

[73] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 492 per Dixon J.

[74] [1937] HCA 77; (1937) 59 CLR 467 at 498.

[75] Hawkin's Pleas of the Crown, Bk 2, c 25, s 82 referred to in R v Thompson [1914] 2 KB 99 at 100.

[76] Radzinowicz, A History of English Criminal Law, vol 1 (1948) at 97-103.

[77] Summary Jurisdiction Act 1848 (UK).

[78] [1964] VicRp 57; [1964] VR 443 at 458.

[79] [1973] AC 584.

[80] [1937] HCA 77; (1937) 59 CLR 467.

[81] [1937] HCA 77; (1937) 59 CLR 467 at 497-498.

[82] [1989] HCA 66; (1989) 168 CLR 266.

[83] [1989] HCA 66; (1989) 168 CLR 266 at 284.

[84] (1972) 56 Cr App R 263 at 265.

[85] (1972) 57 Cr App R 1.

[86] Jemmison v Priddle [1972] 1 QB 489.

[87] Director of Public Prosecutions v Merriman [1973] AC 584 at 607.

[88] Montgomery v Stewart [1967] HCA 11; (1967) 116 CLR 220.

[89] [1972] 1 QB 489 at 494-495.

[90] (1953) 37 Cr App R 28 at 30.

[91] [1973] AC 584.

[92] [1973] AC 584 at 595.

[93] [1989] HCA 66; (1989) 168 CLR 266.

[94] [1989] HCA 66; (1989) 168 CLR 266 at 270 citing Barwick CJ in Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 527. See also Hunter, "Prosecutors' Pleadings and the Rule Against Duplicity" (1980) 3 University of New South Wales Law Journal 248.

[95] Daly v Medwell (1986) 40 SASR 281; cf Timms v Van Diemen [1968] SASR 379 at 385-386; Romeyko v Samuels (1972) 2 SASR 529; Lafitte v Samuels (1972) 3 SASR 1.

[96] Giretti and Giretti (1986) 24 A Crim R 112; R v Locchi (1991) 22 NSWLR 309 at 312; R v Goodfellow (1994) 33 NSWLR 308.

[97] Hamzy (1994) 74 A Crim R 341 at 348.

[98] Hamzy (1994) 74 A Crim R 341 at 348.

[99] Hunter, "Prosecutor's Pleadings and the Rule Against Duplicity" (1980) 3 University of New South Wales Law Journal 248 at 267.

[100] (1990) 19 NSWLR 656 at 666 per Gleeson CJ.

[101] (1991) 57 A Crim R 151 at 156.

[102] Weinel v Fedcheshen [1995] SASC 5216; (1995) 65 SASR 156 at 170 per Perry J.

[103] [1937] HCA 77; (1937) 59 CLR 467 at 472.

[104] [1967] HCA 11; (1967) 116 CLR 220 at 225.

[105] [1989] HCA 66; (1989) 168 CLR 266 at 267.

[106] Stanton v Abernathy (1990) 19 NSWLR 656 at 666 per Gleeson CJ.

[107] Montgomery v Stewart [1967] HCA 11; (1967) 116 CLR 220 at 229 per Taylor J.

[108] Hamzy (1994) 74 A Crim R 341 at 348.

[109] As was done by Prior J in this case. See also Willis (1973) 57 Cr App R 1 at 8-9.

[110] cf S v The Queen [1989] HCA 66; (1989) 168 CLR 266 at 281 per Toohey J.

[111] R v Locchi (1991) 22 NSWLR 309 at 312. See also R v Traino (1987) 45 SASR 473.

[112] As was the case in R v McMullen (1990) 54 SASR 55 at 56.

[113] cf Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270.

[114] See for example R v Lawson (1952) 1 All ER 804; Tomlin (1954) 38 Cr App R 82.

[115] Notably in Director of Public Prosecutions v Merriman [1973] AC 584.

[116] See R v Accused [1993] 1 NZLR 385.

[117] [1966] Criminal Law Review 255 at 265.

[118] [1921] 2 KB 364.

[119] (1934) 24 Cr App R 63.

[120] (1987) 45 SASR 473.

[121] (1990) 19 NSWLR 656 at 665.

[122] [1972] 1 QB 489 at 494.

[123] (1990) 19 NSWLR 656 at 665.

[124] Hamzy (1994) 74 A Crim R 341 at 344; cf Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365.

[125] cf Stanton v Abernathy (1990) 19 NSWLR 656 at 666.

[126] Iannella v French [1968] HCA 14; (1968) 119 CLR 84 at 102 applying R v Molloy [1921] 2 KB 364; R v Disney [1933] 2 KB 138.

[127] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 490 per Dixon J, discussed in Stanton v Abernathy (1990) 19 NSWLR 656 at 670. See also Hamzy (1994) 74 A Crim R 341.

[128] [1989] HCA 66; (1989) 168 CLR 266 at 276.

[129] [1937] HCA 77; (1937) 59 CLR 467.

[130] [1968] HCA 14; (1968) 119 CLR 84.

[131] [1989] HCA 66; (1989) 168 CLR 266.

[132] [1937] HCA 77; (1937) 59 CLR 467.

[133] [1989] HCA 66; (1989) 168 CLR 266.

[134] [1989] HCA 66; (1989) 168 CLR 266.

[135] [1995] SASC 5216; (1995) 65 SASR 156.

[136] [1937] HCA 77; (1937) 59 CLR 467 at 498.

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