Kartawidjaja v Rowe

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2019 05898

ANNI KARTAWIDJAJA	Plaintiff
v
DONNA ROWE	First Defendant
and
COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	TAYLOR J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2020
DATE OF JUDGMENT:	31 March 2021
CASE MAY BE CITED AS:	Kartawidjaja v Rowe & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 143

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JUDICIAL REVIEW – Application for Certiorari – Plaintiff charged with and convicted of offences of allowing or continuing to allow a non-citizen to work in breach of a visa – Finding that the charges were known to the law – Finding that the charges were not duplicitous, uncertain or ambiguous – Finding that the date on which the offences were committed was not a material allegation – Whether findings amounted to an error on the face of the record – Charges were latently ambiguous – Error established – Judicial review granted – Migration Act 1958 (Cth), s 245AC(1) – Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; Walsh v Tattersall (1996) 188 CLR 77 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Nash QC	Access Law
For the First Defendant	Mr K Armstrong	Office of the Commonwealth Director of Prosecutions

HER HONOUR:

This is an application for judicial review of a decision of the County Court of Victoria in which the plaintiff was convicted of nine charges of allowing or continuing to allow a non-citizen to work in breach of a visa condition.

By originating motion dated 20 December 2019 the plaintiff seeks an order of, or in the nature of, Certiorari quashing the order of the County Court by which she was convicted and fined.

The plaintiff alleges his Honour Judge Smith erred in finding that the charges preferred by the first defendant were not unknown to the law nor duplex, uncertain or ambiguous. The plaintiff argues further that his Honour erred in concluding that the date on which the offences were committed was not a material allegation or an essential part of the offence as charged.

The application raises complex issues of statutory construction and criminal pleading.

For the reasons that follow, the application is granted.

History of the Proceedings

This is a matter with an extended history.

Magistrates’ Court

In July 2013 the plaintiff was charged with 22 offences contrary to s 245AC(1) of the Migration Act 1958 (Cth) (‘Act’).

On 17 September 2013 the office of the Commonwealth Director of Public Prosecutions (‘CDPP’) served the plaintiff with 111 charges. These were ‘unrolled’ charges and replaced the original 22 charges.

The 111 charges were heard by the Magistrates’ Court of Victoria over a number of days in August 2014. On 3 February 2015 the magistrate found all 111 charges proven. On 31 March 2015 the plaintiff was convicted and fined an aggregate sum of $75,000.

The plaintiff appealed to this Court on a question of law.[1] On 21 April 2016, T Forrest J quashed the convictions and remitted the charges to the Magistrates’ Court for rehearing by a different magistrate.[2]
[1]Criminal Procedure Act 2009 (Vic), s 272(1).
[2]Kartawidjaja v Rowe [2016] VSC 176. His Honour found that the Magistrate had approached all 111 charges globally, rather than giving each charge individual consideration in light of the evidence admissible in relation to that particular charge.

When the matter was once again before the Magistrates’ Court, the CDPP elected to press only 21 of the original charges and subsequently withdrew three of those.

On 14 February 2019 the plaintiff was convicted of nine of the remaining 18 charges and fined an aggregate of $10,000.

County Court

On 8 March 2019 the plaintiff appealed to the County Court of Victoria against her conviction of the nine charges. The appeal was heard before his Honour Judge Smith on 1 August 2019.

On 11 December 2019 Judge Smith dismissed the appeal, convicted the plaintiff and imposed an aggregate fine of $10,000.

The Charges

The nine charges upon which the plaintiff was convicted covered the period 1 February 2009 to 15 November 2010. Section 245AC of the Act at that time provided as follows.

245ACAllowing a non-citizen to work in breach of a visa condition

(1) A person commits an offence if:
(a)the person allows, or continues to allow, a person (the worker) to work; and
(b)the worker is a non-citizen and the person knows of, or is reckless as to, that circumstance; and
(c)the worker holds a visa that is subject to a condition restricting the work that the worker may do in Australia, and the person knows of, or is reckless as to, that circumstance; and
(d)the worker is in breach of the condition and the person knows of, or is reckless as to, that circumstance.

(2)An offence against subsection (1) is an aggravated offence if the worker is being exploited and the person knows of, or is reckless to, that circumstance.
(3)An offence against this section is punishable on conviction by whichever of the following applies:
(a) in the case of an aggravated offence – imprisonment for 5 years;
(b) in any other case – imprisonment for 2 years.

The terms ‘work’ and ‘allows a person to work’ are both defined in s 245AG of the Act. Work means any work, whether for reward or otherwise. A person allows a person to work if, and only if, the first person employs the second person under a contract of service or the first person engages the second person other than in a domestic context, under a contract for services.

It is necessary to also refer to regulations 8104 and 8105 of the Migration Regulations 1994 (Cth) (‘Regulations’) which relevantly provide as follows.

Reg 8104
(1)Subject to subclauses (2) to (6), the holder must not engage in work for more than 20 hours a week while the holder is in Australia
…

(6) In this clause:
week means the period of 7 days commencing on a Monday.

Reg 8105
(1)Subject to subclause (2), the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session.
(2)The holder must not engage in any work in Australia before the holder’s course of study commences. …

(3) In this clause:
week means the period of 7 days commencing on a Monday.

Each of the nine charges relate to the employment of a foreign student who had been granted a visa enabling him or her to reside in Australia to study. Each of the visas were subject to a condition that upon arrival in Australia, the holder could not work before the commencement of their course of study and could not work more than 20 hours during the study term. The visas permitted each student to work unlimited hours in holiday periods.

Each of the nine students were employed at one or more businesses known as ‘Nando’s’ or ‘Chaddy Mart’ in Melbourne over various periods in 2009 or 2010.

The employer in each case was a company which was linked in various ways to the plaintiff.[3]
[3]The prosecution relied upon s 493 of the Act as to the conduct of directors, employees and agents of a body corporate and upon the extended form of criminal responsibility provided for by s 11.2 of the Criminal Code Act 1995 (Cth). No issue arises in the instant proceedings with respect to these matters.

Agreed statement of facts

The factual basis of the allegations was without controversy and before his Honour by way of an agreed statement of facts. It is convenient to reproduce it in full.

Agreed Statement of Facts

1. Each of the student workers was a lawful non-citizen during the period alleged in each charge with which each of them is associated (‘associated charge’) as described in table A below.

2. During the period of the offence alleged in each charge, each of the student workers held a visa (‘the visa’) that was subject to a work-related condition (‘the work-related condition’).

3. The work-related condition was that the visa holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training was in session (the work-related condition). (sic)

4. The applicable work-related condition was:

a. In respect of Condition 8104(3):

‘If the holder is able to engage in work in accordance with sub-clause (2), the holder must not engage in work for more than 20 hours a week while the holder is in Australia unless sub-clause (4) or (5) applies’;

b. In respect of Condition 8105(1):

‘Subject to subclause (2), the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session’.

5. During the period of the dates of the offence the student workers worked in excess of 20 hours (‘the work’).

6. Each student worked during the period specified in Table A the total hours shown against his/her name in that Table.

7. The student workers each performed the work for a body corporate as described in Table A below with which the appellant was associated.

8. The number of weeks for which the student worker worked when the holder’s course of study or training was in session was as described in table A below.

9. The word ‘week’ means a period of seven days commencing on a Monday.

10. Each of the charges was laid more than 12 months after the date on which it is alleged the relevant offence was committed.

Table A

Associated Charge

Student Worker

Body Corporate

Dates of offence

Number of ‘weeks’

Hours worked

46

Fery GUNATRIY-ANINGRUM

Chaddy Mart Pty Ltd (as operator of two stores

16/7/09

-

31/08/09

8[4]

334

53

Abednego HARTANTO

Multiline Distributors ATF Juliandos UT

1/3/09

-

15/3/09

3

109

64 Melanie JULIANA Chaddy Mart Pty Ltd
16/7/09

–

31/8/09
8 305.75

71

Yobel LIMANTO

Multiline Distributors ATF Juliandos UT

16/4/09

-

1/5/09

7

257.75

79

Oscar Suseno LUKITO

Multiline Distributors ATF Juliandos UT

16/10/09

-

30/11/09

8

193.5

90

Maria MACADELENI

Chaddy Mart Pty Ltd (as operator of two stores

1/10/10

-

15/11/10

7

302

101

Mira SARI

Multiline Distributors ATF Nathan UT

1/2/09

-

15/3/09

7

264.75

128

Prima Yoga SUKMANA

Multiline Distributors ATF Nathan UT

1/2/09

-

15/3/09

7

209.25

133

William WIYONO

Ozan Quatro

16/4/10

-

31/5/10

7

264.25

[4]This figure seems to be inaccurate. It is in fact 6 weeks and 4 days. In his decision Judge Smith referred to this as being a period of ‘about six weeks’.

Decision of Judge Smith

Relevant to this matter, counsel for the plaintiff (then appellant) submitted to his Honour that the charges were duplex, uncertain or ambiguous. That argument and his Honour’s reasons for rejecting it are contained in the following extract of the judgment.[5]
[5]Kartawidjaja v The Queen [2019] VCC 2038, [28]-[49] (citations to exhibit numbers omitted).

Were the Charges, Duplex, Uncertain, or Ambiguous
28.Each of the 9 charges are worded identically save for the name of the student relevant to the particular charge and the period in which the offence is alleged to have occurred.

29. The wording of each is:
Between [the dates of commencement and end of the period] at Melbourne in the State of Victoria, you did, contrary to subsection 245AC(1) of the Migration Act 1958, allow, or continue to allow, a person, namely [Name of Student], to work, knowing or being reckless as to the following circumstances:
a. The person was a non-citizen;
b.The person held a visa that was subject to a condition restricting the work that the worker may do in Australia; and

c. The person was in breach of the condition.

30.Each of the periods referred to in the 9 charges covers one or more pay periods. Each of those pay periods covers a fortnight.
31.It is not disputed that each of the students were paid twice monthly – once mid-monthly and again at the end of the month. Because a ‘week’ is defined in the Regulations as commencing on a Monday and ending at midnight on a Sunday night, a month would sometimes contain 3 pay days.
32.Wage records of each of the relevant corporate employers contain details of the hours worked per fortnight in the period but do not particularize how many hours were worked by the student in any single week.
33.The appellant submits that the inability of the prosecution to identify the particular week or weeks in which each of the students were employed for more than 20 hours is fatal to each of the charges on the basis that each charge is bad for duplicity, uncertainty, or latent ambiguity.
34.The appellant submits that it is incumbent on the prosecution to nominate and prove in which particular week or weeks each student worked in excess of 20 hours.
35.The prosecution submits that it is not required to nominate a particular week or weeks. Rather, it submits that it is required to establish, and has established, that in each of the nominated periods, the student must have worked in excess of 20 hours in a week within the nominated period.
36.It is convenient to take, as an example, the facts agreed upon in relation to the first charge (charge 46) involving the employment of Fery by Chaddy Mart Pty Ltd.

37. It is not disputed that:

· Fery was employed by Chaddy Mart Pty Ltd at its Burwood and Chadstone businesses over a period of time including the period nominated in the Charge – 16 July to 31 August 2009.

· The nominated period covered about 6 weeks and 3 pay periods ending on 31 July, 15 August and 31 August 2009, each relating to a fortnight worked.

· These 3 pay periods each fell within the academic term of the educational institution attended by Fery (as opposed to a holiday period).

· For those three pay periods, Fery worked 128 hours, 111 hours, and 95 hours respectively, a total of 334 hours.

38.For the fortnight covered by the pay document on 31 July 2009, Fery worked 128 hours. The prosecution is unable to prove the hours worked in each of those two weeks. But arithmetical logic leads to the conclusion that Fery must have worked in excess of 20 hours:
i.        in the first of those 2 weeks; or
ii.        in the second of those two weeks; or
iii.       in both of those two weeks.
39.On the basis of those records, it is mathematically impossible for Fery to have worked 20 hours or less in each of those two weeks. This was conceded by Senior Counsel for the appellant in the submissions referred to in paragraph 23 above.
40.The same logic applies to the second and third fortnights covered by the pay documents on 15 August and 31 August 2009, in which Fery worked for 111 hours and 95 hours respectively.

41. The appellant submits that each charge should be dismissed.
42.I do not agree. I consider that the prosecution need only establish the elements of the offence in question.
43.The charges here are not charges where time is of the essence. The alleged dates are not a material allegation or an essential part of the offence.
44.It is often the case that the exact date of an offence cannot be established. An obvious example is where a complainant in a sexual offence matter cannot recall a specific date when an offence occurred but can only nominate a particular year, month or other period. In some matters the actual date is crucial – for example, where proof of the complainant’s age at the time of the offending conduct is a crucial element.

45. In R v R.H.McL,[6] Batt JA said
[6][1999] 1 VR 746, 754.
‘… an allegation in an indictment, presentment or information of the date upon which an offence has been committed is, at common law, not a material allegation unless the date is an essential part of the offence.’

46.It might be the case, in some instances, that a person charged is at a disadvantage in not knowing the particular date (or week) of an alleged offence. His or her ability to establish a defence or alibi might be inhibited. There is no suggestion that this is the case here. In any event, such disadvantages are usually the subject of a caution to jurors in a Judge’s charge with regard to forensic disadvantages faced by such an accused.[7]
47.I consider that it is sufficient for the prosecution to establish beyond reasonable doubt that the student in question must have worked in excess of 20 hours in a week during the period nominated in the charge.
48.The appellant submitted that the High Court decision in S v R[8] her submission. (sic) However, in my view that case is distinguishable from this appeal. There, the appellant was charged with 3 counts of incest, each alleged to have occurred during a specific period. There was no evidence to link the evidence of intercourse with any one of those periods. This is not the case here. Likewise in Johnson v Miller[9], the prosecution was unable to identify any of the persons alleged to have been seen leaving licenced premises in breach of licencing provisions. It followed that the persons observed leaving the premises outside of permitted hours could not be identified as customers. Those facts are very different to those in this appeal.
49.With regard to matters of autrefois convict or autrefois acquit, I do not consider that these principles are offended by the wording of these charges. In the event that the appellant was later charged with a further offence under s 245AC concerning the same student and relating to the same period as alleged here, the principles of autrefois convict or acquit would apply in the normal manner so as to protect the appellant from such charges.
I am satisfied that the charges, as they are particularized, are not duplicitous, uncertain, or latently ambiguous.
[7]Part 4, Division 5 Jury Directions Act 2015.
[8](1989) 168 CLR 266; [1989] HCA 66 (‘S v The Queen’)
[9](1937) 59 CLR 467 (‘Johnson v Miller’).

Submissions of the parties

The arguments on this application largely rehearsed those made before his Honour.

The plaintiff submitted that the prosecution case in respect of each charge was that the student ‘must have worked more than 20 hours in a week’ during the period covered by the relevant charge. The plaintiff submitted that the charges were not known to the law or, alternatively, each charge was duplex and ambiguous. The plaintiff further argued that the offence dates were a material allegation.

Relying upon Johnson v Miller, S v The Queen and Walsh v Tattersall,[10] it was contended that there is no offence at law of working more than an average of 20 hours per week in any multiple week period. The offence section displayed an intention to create a discrete offence based on hours worked in a period of seven days commencing on a Monday. The plaintiff was entitled to be apprised of the particular act, matter or thing alleged as the foundation of the charge. The inability of the prosecution to do so due to the payment cycle of the students was immaterial and the plaintiff should not be prejudiced by it, even if she is without merit.
[10](1996) 188 CLR 77 (‘Walsh v Tattersall’).

The first defendant submitted that the essential characterisation of the offence is of allowing a non-citizen to work in breach of a visa condition. It is not a discrete offence based on hours worked in a period of seven days beginning on a Monday.

The first defendant identified the elements of the s 245AC(1) offence as follows:

a.the person allows, or continues to allow, a person (the worker) to work; and
b.the worker is a non-citizen; and
c.the worker holds a visa that is subject to a condition restricting the work that the worker may do in Australia; and

d.the worker is in breach of the condition,

where the person knows of, or is reckless as to b., c. and d.

The first defendant submitted that the charges as particularised were known to law. The error of the plaintiff’s submission, counsel contended, was to confuse proof of element d. of the offence with the evidentiary basis for proof of the offence.

Further, the first defendant submitted the charges were not duplicitous, uncertain and/or ambiguous because it was not necessary for the prosecution to prove a particular week wherein the worker worked more than 20 hours. The prosecution was only required to prove the elements of the offences. It was open to his Honour to be satisfied of guilt by inferential proof by ‘arithmetical logic’.[11] The first defendant had submitted to Judge Smith that ‘[o]nly one offence was alleged – i.e. that the student worked the average number of hours in one week during the alleged period.’[12] The convictions would permit the plaintiff to claim autrefois convict. It would also be open to a subsequent court to order a permanent stay to prevent an abuse of process in the event of a further prosecution with the same particulars as to date, non-citizen worker and visa breach.
[11]Reference was to the fact that the means by which an offender has offended are not settled by a verdict of guilt: Cheung v The Queen (2001) 209 CLR 1, 8 [5].
[12]First Defendant, ‘Respondent’s Submissions in Reply’, Submission in Kartawidjaja v The Queen [2019] VCC 2038, 19 August 2019, [19], (Court Book, 451).

And, the first defendant submitted, his Honour was correct that the date of the offence is not an essential part of it and therefore not a material allegation.

The second defendant did not join issue with the matters before the Court.

Analysis

I turn to the three errors on the face of the record alleged.

Are the charges unknown to the law?

The charges are expressed to be between dates. The period covered by the each of the nine charges ranges from three weeks to eight weeks.

The plaintiff submitted before Judge Smith and again in this Court that it is an element of the 245AC(1) offence that in a specific week she allowed or continued to allow a student to work more than 20 hours. And, it follows, that an offence is committed each and every week in which that occurs. As none of the charges allege a specific week in which the relevant student worked more than 20 hours, the plaintiff argues that none allege an offence under s 245AC(1) of the Act.

This argument relies upon the judgment of Gaudron and Gummow JJ in Walsh v Tattersall. It is therefore necessary to examine that decision.

Walsh v Tattersall

In that case the appellant had been charged with an offence contrary to section 120(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) (‘WRC Act’). The information alleged that between dates, he obtained by dishonest means payments of income maintenance and also of medical/rehabilitation expenses by dishonestly pretending he was ill and incapacitated for work. The legislative provision referred to the dishonest obtaining of ‘any payment or other benefit’ and dishonest claiming of entitlement to ‘a payment or other benefit’ under the WRC Act.

While the arguments before the High Court centred on the issue of duplicity, and the joint judgment of Dawson and Toohey JJ (in dissent) and that of Kirby J analysed the issues in those terms, Gaudron and Gummow JJ stated that the appeal turned upon ‘an anterior question’.[13] That was, whether the appellant was charged with any offence created by the relevant legislation.
[13]Walsh v Tattersall (1996) 188 CLR 77, 87.

Their Honours held that an offence was completed when a payment or benefit was first obtained dishonestly. There was no offence of obtaining by dishonest means payments or benefits under the WRC Act. That was because dishonesty was an essential element of the offence and had to be assessed at the time that each payment or benefit was obtained.[14] That construction was also supported by the structure of the WRC Act as a whole.[15] Adopting the reasoning of Kirby J (who, as noted, analysed the question in terms of duplicity), giving such specificity to the offence provision assisted in arriving at the appropriate sentence and determining the availability, if relevant, of pleas of autrefois acquit and autrefois convict.[16]
[14]Ibid 89.
[15]Ibid.
[16]Ibid 90.

Kirby J, after identifying considerations suggesting that the legislature contemplated that each payment or benefit under the WRC Act obtained by dishonest means was to constitute a separate criminal offence said:

These considerations therefore confirm that the [WRC] 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.[17]

[17]Ibid 101-102 (footnotes omitted).

Thus Walsh v Tattersall turned on the direct language of the legislative provision itself and the context of that provision in the structure of the WRC Act as a whole. Dishonesty had to be shown with respect to each payment or benefit obtained.

The offence against s 245AC of the Act

I accept that elements of the offence identified by the first defendant in paragraph 27 above are correct.

The conduct prohibited by the statute is allowing or continuing to allow a person (the worker) to work in prohibited circumstances, knowing of or being reckless to the existence of those circumstances. The prohibited circumstances are threefold: the worker is a non-citizen; holds a visa that is subject to a condition restricting the work that the worker may do in Australia and the worker is in breach of the condition.

Neither party referred the Court to any authority considering the proper construction of s 245AC or like provision, such as s 245AB of the Act. That is unsurprising given its legislative history and use.[18] The offence provision has been rarely subject to contested litigation.
[18]The Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007 (Cth) found that at that point in time there had been no contested matter under those provisions. The offences were subsequently amended in 2012 and civil penalty provisions introduced. The explanatory memorandum to the Migration Amendment (Reform of Employer Sanctions) Act 2012 (Cth) details an enforcement strategy of issuing warning notices at first instance, followed by infringement notices for repeated non-compliance, with civil penalty or criminal proceedings only used in the most serious cases or in circumstances of ongoing repeated non-compliance.

However there are two authorities involving s 245AC charges.

Nantahkum v The Queen[19] was an appeal raising issues of double punishment in relation to offences against s 270.3(1)(a) of the Criminal Code (Cth) of possessing a slave and s 245AC(1) of the Act in its aggravated form. The decision contains no relevant discussion of the construction of s 245AC, but it is clear that the two s 245AC charges of which the appellant was convicted related to periods of approximately four weeks and three months respectively. The relevant visa in relation to one charge prohibited the person from working at all. It is not clear from the judgment what visa condition was breached in relation to the second charge.
[19](2013) 279 FLR 148.

R v Simonetta[20] is a sentence following a plea of guilty to five charges of allowing a non-citizen to work in breach of a work-related condition contrary to s 245AC(1) of the Act. The relevant visa conditions in relation to the charges prevented the non-citizens from working at all. The date range of the charges varied between about one and four and a half months.
[20][2017] VCC 2015

Although the point was not agitated in either case, these authorities suggest that individual charges for each day or occasion on which the accused allowed or continued to allow the worker to work were unnecessary. Rather, the offending conduct was either continuous or a single transaction.

Whilst the relevant visa condition in those cases prohibited any work at all, it is to be remembered that a particular visa condition is not an element of the offence. The elements that the prosecution must prove do not change depending upon whether the visa prohibits work completely or limits permissible work to a certain number of hours during certain periods or some other variation.

The point may be illustrated by analogy with Dietman v Feast,[21] where a construction issue arose with respect to s 120(3) of the Fisheries Management Act 1991 (Cth) (‘FMA’). The statutory provision provided:

If a registered boat is used in or in connection with the commission of an offence against this Act, the registered owner of the boat is guilty of an offence and liable to the same penalty as is prescribed for the principle offence.

[21](2016) 126 SASR 165.

The appeal considered whether the identity of the person(s) who committed the principle offence was an element of the s 120(3) offence.

Chief Justice Kourakis stated that a literal construction of the provision showed that the offence had two elements: that the defendant is the registered owner of a boat and the boat is used in, or in connection with, the commission of an offence against the FMA. His Honour said that it strained the grammatical structure of the section to read it as including an element that a particular person or particular persons committed the principle offence.[22] To hold otherwise was to equate proof of the commission of an offence against the FMA with proof of the commission of an offence by a particular person.[23] This would frustrate the purpose of the FMA which was to burden ‘the registered owner with a responsibility to secure the use of his or her vessel against breaches of the [FMA] by whomsoever committed.’[24]
[22]Ibid 178 [74].
[23]Ibid 179 [79].
[24]Ibid 178 [77].

His Honour later observed:

[T]he boat use offence can be committed in many ways depending on the referential offence which is charged. Each of the two counts alleged one referential offence. The counts were neither duplex nor uncertain because the identity of the perpetrator is not an element of the boat use offence. Finally, as a matter of procedural fairness, the respondent was aware of the case against him.[25]

[25]Ibid 182 [95].

In the instant case, the purpose of the s 245AC(1) offence is to burden an employer with a responsibility to ensure that he or she does not allow or continue to allow a non-citizen to work in breach of whatever visa condition circumscribes their ability to work in Australia. The unique limitation of any particular visa condition is not an element of the offence.

Discussion

It follows that the s 245AC(1) offence is distinguishable from the legislative provision considered in Walsh v Tattersall.

First the offence does not criminalise a singular event, unlike the dishonest obtaining of a payment. In its own terms it is committed where a person ‘allows, or continues to allow’ a worker to work in breach of a visa condition. The words contemplate an ongoing state of affairs.[26] It follows that where the visa condition concerned arises from regulations 8104 and 8105 of the Regulations, the offence is not necessarily completed the minute a non-citizen worker is allowed to work beyond 20 hours in a single week. The words contemplate that between dates, an accused may continue to allow work in breach of a visa over a period.[27]
[26]In the language of the Criminal Code (Cth), a circumstance in which conduct, or a result of conduct, occurs.
[27]The issue of whether this might, depending upon the specific visa under question and the factual matrix of the allegations, be duplicitous or be properly characterised as an ongoing offence or a single criminal transaction is considered below.

Second, the ‘breach of the condition’ formulation in s 245AC(1)(d) is broad. It is not specific to regulations 8104 and 8105 of the Regulations. That element of the offence does not include a time frame. Indeed, that element does not require proof of any particular detail other than that the worker was in breach of the condition. But, how that may be established is dependent upon the facts in the individual case, the particular visa being one of those facts.

Third there is no temporal nexus between the physical and fault elements beyond knowledge or recklessness as to the worker being a non-citizen, holding a restrictive visa and working in breach of it. That is, unlike the need to show the particular dishonesty by which a payment on a date was obtained, which may be different from the dishonesty by which a previous or subsequent payment was obtained, the fault element of this offence remains constant. If a person knows of or is reckless as to the worker being a non-citizen, holding a restrictive visa and working in breach of it, that fault element is fixed whether the person works 20 hours and one minute in a single week, 100 hours in a single week or any permutation of more than 20 hours in multiple weeks.

Conclusion

Accordingly, his Honour Judge Smith did not err in finding that the charges as laid are known to law.

Are the charges duplicitous, uncertain and/or ambiguous?
Concepts and language

The rule against duplicity is well established.[28] It prevents any single count in an indictment or complaint from charging a person with the commission of more than one offence. It also prevents latent uncertainty or ambiguity.[29] If a count charges a single offence and evidence is led of more than one instance of such offending, then if the accused is convicted the verdict will be uncertain or ambiguous as to which instance he or she has been found guilty.
[28]S v The Queen (n 8) 284 (Gaudron and McHugh JJ); Walsh v Tattersall (n 10) 103-107 (Kirby J).
[29]Johnson v Miller (n 9) 489 (Dixon J) cited in subsequent cases by the High Court: S v The Queen (n 8) 277 (Dawson J), 281 (Toohey J), 285-287 (Gaudron and McHugh JJ) and 271 (Brennan J, dissenting in the result); and Walsh v Tattersall (n 10) 86 (Dawson and Toohey JJ, dissenting in the result), 93 (Kirby J).

There are two recognised exceptions to the rule against latent uncertainty or ambiguity. The first is where the alleged offence is of a continuing nature. The oft-given example of such an offence is maintaining a brothel, where prohibited conduct continues over an extended period, any part of which would constitute the offence. The second exception is that a single charge may be laid in respect of multiple acts, each of which may amount to a separate offence, if those acts are sufficiently connected with each other to amount to a single transaction. An obvious example of single transaction offending is Giretti[30] trafficking in drugs.
[30]Giretti v R (1986) 24 A Crim R 112.

It is to be noted that the strict approach to resolving questions of duplicity advocated by Kirby J in Walsh v Tattersall, and followed in Australian jurisdictions since,[31] allows for these exceptions:

This Court should adhere to its longstanding insistence that, save for statutory warrant and of 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.[32]

[31]R v Gian [1999] NSWCCA 53 at [23]; and R v Khouzane and Saliba [1999] NSWCCA 173.

[32]Walsh v Tattersall (n 10) 112.

The rule against duplicity is underpinned by concepts of fairness[33] and regard for the orderly administration of criminal justice.[34]
[33]S v The Queen (n 8) 285 (Gaudron and McHugh JJ).
[34]Ibid.

Historically, the terms duplicity, ambiguity and uncertainty have varied in their use. As Edelman J explained:

There is sometimes confusion between the different concepts of patent duplicity, latent duplicity, ambiguity and uncertainty. Historically the labels have been used in different senses from those in which they are commonly used today.
Duplicity arises on the face of the indictment or prosecution notice if more than one offence is contained, either conjunctively or disjunctively, in the indictment or prosecution notice. Such cases are now commonly described as one of patent duplicity, although historically the term ‘uncertainty’ was used to describe formal errors in in an information which joined more than one offence disjunctively.
Alternatively, ‘duplicity’ might emerge from the facts at trial, in the sense that the way that the prosecution case is to be, or has been, conducted gives rise to the possibility of the accused person being convicted of one of a number of distinct offences. In that case, the prosecution notice or indictment is sometimes now described as giving rise to ‘latent duplicity’. Historically, the notice or indictment would have been described as being bad for ambiguity.[35]

[35]McDonald v Higgins (2013) 227 A Crim R 130, [24]-[26] (citations omitted).

Recently, in Ma v Police,[36] the Full Court of the Supreme Court of South Australia made a number of observations regarding the terminology used in cases involving latent ambiguity. Peek J (Kourakis CJ and Stanley J agreeing) stated:
[36][2020] SASCFC 99.

[F]or some time there has been a deal of inconsistency in the terms used to analyse the doctrines of duplicity and uncertainty of convictions. I think it fair to say that the waters have been somewhat roiled by the advent of the ‘latent duplicity’ terminology in cases that would hitherto have been referred to as examples of ‘uncertainty’ rather than duplicity; the High Court has referred to that use of terminology though not, I think, entirely embraced it.[37]
[37]See generally S v The Queen (1989) 168 CLR 266.
In R v McCarthy,[38] the distinction between duplicity and uncertainty of verdict was considered in this Court. As to uncertainty, it was said:
[209] Uncertainty of conviction is an old common law doctrine. It is most often encountered in the situation where a count charges only one offence, but evidence is led of two (or more) incidents, each of which could constitute that offence. In such a case, the charge itself will not be bad for duplicity but the verdict or conviction may be bad for ‘uncertainty’ because it is unclear exactly what has relatively recently come to be known as ‘latent duplicity’.
[210] An application of the doctrine of uncertainty often referred to is the decision in Parker v Sutherland where a barman was charged with permitting patrons to ‘treat’ another person to a drink contrary to a World War I regulation, but the evidence disclosed two possible offences on the specified date, on occurring at 7.55 pm and the other 35 minutes later at 8.30 pm. The conviction did not state to which the incident it referred and was found to be bad for uncertainty. Viscount Reading CJ stated:
Although not bad for duplicity, it has left it in doubt in respect of which of the two offences the appellant was really convicted; no one can say whether it is the offence at 7.55 or the offence at 8.30. We must be careful so as to administer the criminal law that the offence of which a person is convicted shall be plain and certain. Otherwise the person convicted would be in a difficulty if charged again, for he would not be able to plead autrefois convict to either of two offences, if it is not made quite clear which of the two was the real ground of the conviction. [citations omitted]

Thus, in cases such as Parker v Sutherland,[39] only one offence is involved but the evidence potentially establishes a number of instances of commission of that same offence. Australian courts have regularly quashed convictions in cases of this type, sometimes referring to the underlying doctrine of uncertainty and sometimes referring to ‘latent duplicity’.[40]

[38](2015) 124 SASR 190.

[39](1917) 86 LJKB 1052.

[40]Ma v Police (n 36) 37 [128].

In Victoria, the authorities have variously used the terms ambiguity, uncertainty and latent duplicity to describe the same vice.[41] And here, the plaintiff must be understood to use the terms interchangeably. The plaintiff directly employs the language of the Johnson v Miller formulation of the rule:

… the 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 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.[42]

[41]Pate (a pseudonym) v The Queen [2019] VSCA 170; The Queen v Yankovski [2007] VSCA 259; R v Senese [2004] VSCA 136; R v Trotter (1982) 7 A Crim R 8.

[42]Johnson v Miller (n 9) 489 (Dixon J) (emphasis added).

In this judgment, I will adopt the term latent duplicity.

Where latent duplicity emerges during the prosecution case, generally no injustice will arise if, at that point, the prosecution makes an election as to which of the incidents will be the offence charged in the count.[43] If no election is made, a conviction upon that count should not be left to stand because to do so may deprive the accused thereafter the opportunity to plead autrefois convict or autrefois acquit.[44]
[43]Ibid.
[44]R v VN [2006] VSCA 111; (2006) 15 VR 113, [74] (Redlich JA).

The role of particularisation of a charge is important in this context. In PPP v The Queen,[45] Redlich JA stated that an accused must be apprised not only of the offence with which he or she is charged, but also of the particulars of the act constituting the offence. His Honour identified seven distinct purposes of the provision of particulars, the first four of which reflect the right of an accused to a fair trial and last four of which inform the obligation to avoid duplicity.[46] They are:
[45](2010) 27 VR 68 (‘PPP’).
[46]The fourth factor was noted to serve both purposes.

(i) to enable the accused to exercise the right to object to evidence on the ground of relevance;

(ii) to permit the accused to know how the charge might be answered;

(iii) to provide the accused with the opportunity to test the credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count;

(iv) to enable the trial judge to instruct the jury properly as to the law to be applied;

(v) to ensure that there is a unanimity of view by the jury as to a specific act by the accused;

(vi) in the event of conviction, to enable the court to know the offence for which the defendant is to be punished;

(vii) to ensure that the record discloses 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.[47]

[47]PPP v The Queen (n 45) 80-81 [42].

Redlich JA later continued:

In the present case, evidence of the uncharged offences alleged by the complainant fell within the description of the offence described under each relevant count. There was, therefore, as Dixon J stated in Johnson v Miller a ‘latent ambiguity’ which had to be redressed if the applicant was to have a trial according to law. Where the evidence called establishes more than one instance of such offending, the latent uncertainty depends, not so much upon the terms of the count, as upon the case sought to be made by the Crown. The ambiguity might be removed by making an amendment or by giving particulars selecting one instance so as to make the count incapable of equal application to the other alleged acts. Importantly Dixon J stated in Johnson v Miller that there are more than one means by which the act, the subject of the charge, may be identified and distinguished from other acts, equally capable of supporting the complaint.[48]

Identifying latent duplicity

[48]Ibid 82 [45] (emphasis added)

Basten JA has identified two steps in the process of identifying duplicity.[49] First, identify the act or conduct prohibited by the law that creates the offence. Second, identify the act or conduct set out in the pleading as constituting the offence in the particular case.
[49]Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373, [9]. See also Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263, [26] (Fagan J, Hoeben CJ at CL and Rothman J agreeing).

I have already identified the conduct prohibited by the section, namely allowing or continuing to allow a non-citizen to work in breach of a visa condition. I turn to the offending conduct as pleaded.

The offending conduct as pleaded

The text of the charges and the agreed facts that are said to demonstrate the offending conduct are reproduced above.

Due to the timing of the employer’s pay cycles, in no case could the prosecution prove that the relevant visa was breached in a particular seven day period, commencing on a Monday. However, by application of mathematics, the prosecution could prove that a breach occurred in at least one such period. With respect to all charges, the application of mathematics meant that there was at least one such ‘weekly’ breach in each fortnightly pay cycle within the charged period. It follows that the matter must be analysed on the basis that there was more than one ‘weekly’ breach of the visa condition in each charge.

That being so, the exceptions to the rule against duplicity, of continuous offending or single transaction, must be considered.

Identifying continuous offending or single transaction offending

In Walsh v Tattersall, Kirby J identified indicia of a single criminal enterprise as being the connection of the events in point of time, the similarity of the acts, the physical proximity of the place where the events happened and the intention of the accused throughout the conduct.[50]
[50]Walsh v Tattersall (n 10) 108.

A review of authorities illustrates how such indicia have been applied to determine whether the conduct alleged to constitute the offence in any particular case is either continuous or amounts to a single transaction and also demonstrates the manner of their application. Some of these authorities, particularly the more recent, treat continuous offending and single transaction offending as being two distinct exceptions to the rule against duplicity, others treat the concepts as broadly encompassing the same thing. In either case, it is clear that ‘what falls for consideration is a question of fact and degree, a series of fact-specific decisions.’[51]
[51]R v Heaney (2009) 22 VR 164, [47].

In Kiangatha Holdings Pty Ltd v Water NSW,[52] the appellant had been charged with two offences of polluting waters contrary to s 120 of the Protection of the Environment Operations Act 1997 (NSW) (‘PEO Act’) arising from the construction of an unsealed road. The first offence was described as the ‘likely pollution offence’ and related to the placing of soil or sediment in a location from which it would be likely to descend into a gully. The second offence was described as the ‘actual pollution offence’ and related to the placement of soil or sediment directly in a gully or in a position from which it actually descended into a gully. The appellant contended that each charge disclosed multiple offences as the particulars alleged the pollution occurred at 35 different locations.
[52]Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 (‘Kiangatha Holdings’).

Fagan J concluded (Hoeben CJ at CL and Rothman J agreeing) that an offence would be separately committed on each occasion soil was placed in a location from which it would likely descend into a gully, or directly in a gully or a position from which it actually descended into a gully. His Honour considered that the charged offences were not continuing offences:

Each instance of placement of material in a position where it was likely to make its way into a dry gully was a complete offence against s 120 at the moment of placement. Each placement directly into a dry gully, for the purposes of the actual pollution charges, was likewise a complete offence at the moment of placement. A number of individual acts, each one complete at the moment of its performance, do not become something that is ‘continuing’ just by being drawn together under one charge. Taken together, they remain a number of completed acts. The combination of all the placements that are relied upon in this case under each charge respectively does not assume the character of a continuing infringement so as to be excused as an exception to the rule against duplicity.[53]

[53]Ibid [50].

That was not to conclude that an offence against s 120 of the PEO Act could never be a continuing offence. His Honour stated that where, for example, an owner of industrial property permitted waste to discharge into water continuously for days at a time, the offence would be appropriately classified as continuing.

Fagan J also rejected characterising the offending alleged as a single transaction. His Honour held that while the conduct involved similar acts in close proximity within a set period all necessary to build a road, that was insufficient to unify the conduct into a single criminal transaction. In so doing, his Honour noted:

There must certainly be a lower limit to the analysis of soil placements along this road into separate infringements of s 120. I accept that it would not be necessary, in order to avoid duplicity, for a prosecutor to lay a separate charge for each bucket load from an excavator or each thrust of a bulldozer. A number of such applications of a machine leading to a placement of material where it was likely to find its way into a single dry gully, could no doubt be properly charged as one offence. Depending upon the circumstances, it may be that even if such actions continued over more than one day they could properly be so charged. But what the respondent has endeavoured to consolidate into a single instance of infringement of s 120, to be prosecuted on one count, is far more ambitious than joint up as one event several bucket loads or dozer pushes at a single location near a single gully.[54]

[54]Ibid [60].

Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd[55] concerned offences against s 125(1) of the PEO Act for carrying out a development other than in accordance with a development consent. The PEO Act envisaged a continuing offence, with s 126 providing for daily penalties.[56]
[55](2018) 362 ALR 359 (‘Snowy Monaro’).
[56]Ibid 362 [12]. See also Kiangatha Holdings (n 52), where Fagan J similarly held that s 123 of the PEO Act provided a penalty for each day an offence against s 120 continued, at [47]-[48].

The respondent was charged with three contraventions of the relevant development consent, all between dates 20 January 2015 to 18 March 2015. First, by engaging in a course of conduct by operating a temporary mobile asphalt batching plant ‘to a maximum daily production capacity of more than 150 tonnes’. Second, by operating the plant ‘to produce more than 150 tonnes per day’. Third, by operating the plant so that ‘more than 12 trucks per day were accessing and exiting its site … at any one time’. Neither the second or third charge specified a single day on which the breach took place.

The primary judge held that the first charge was not known to law and that the second and third charges were bad for duplicity. On appeal, the appellant argued that the second and third offences were continuing offences, whereas the respondent argued that discrete offences occurred on each day that the consent was breached. Of note, the prosecutor at first instance had submitted that if it could be proved that a contravention of the development consent had occurred on only one of the days in the period alleged, the offence as charged would be made out.

Chief Justice Bathurst discussed the relevant principles and their application at length. His Honour noted that acts forming part of a single transaction or enterprise can be charged as a single count and not be bad for duplicity. He referred to Hakim,[57] a case in which a charge of carrying out excavation work on protected land without a permit, contrary to s 22B(2) of the Rivers and Foreshores Improvement Act 1948 (NSW), which encompassed several distinct excavations occurring in three separate months over a five month period, was not found to be bad for duplicity. In so doing his Honour emphasised that the judgment of Spigelman CJ in that case was founded on the fact that nothing in ‘scope and purpose’ of the relevant legislation required a ‘specification of each distinct act capable of constituting, in some technical or other sense, a different excavation’.[58] His Honour emphasised that the subject matter and language, considered in their context, is determinative of whether a statutory provision creates one offence or several.
[57]Hakim v Waterways Authority (NSW) [2006] NSWCCA 376 (‘Hakim’).
[58]Snowy Monaro (n 55) 370 [49].

His Honour also stated that Australian law requires a strict approach to the question of duplicity and referred to the indicia of a single criminal enterprise identified by Kirby J in Walsh v Tattersall referred to above.[59]
[59]Ibid [50]-[53].

Bathurst CJ held the charges were bad for duplicity, finding that a separate contravention occurred on each day that the plant produced more than 150 tonnes or where more than 12 trucks entered or left the site of the plant on the day in question. His Honour found this to be consistent with the plain language of the conditions in the consent, which referred to the particular limitations imposed ‘per day’. His Honour continued:

The question may be tested in the following way: During the course of its submissions, the prosecutor indicated that it would seek to prove that the contraventions occurred on each day in the period specified in the Second and Third Charges. Notwithstanding if it could only be proved that a contravention occurred on only one of the days in the at period, the offence as charged would be made out. In my opinion, this demonstrates that the charge encompasses multiple separate offences rather than a single offence.[60]

[60]Ibid [60].

Another NSW Court of Criminal Appeal case arising from environmental legislation is Environment Protection Authority v Truegain Pty Ltd.[61] The case concerned s 64(1) of the PEO Act which created an offence for a licence holder to contravene a condition of their licence.
[61](2013) 85 NSWLR 125 (‘Truegain’).

The judgment of Leeming JA discussed the history and purpose of the rule against duplicity[62] and noted that the ‘question [of] whether a statute attached criminality to an ongoing criminal enterprise, as opposed to a particular act, is inevitably a question of construction’.[63]
[62]Ibid 135-140 [31]-[52].
[63]Ibid 140 [51].

His Honour found that s 64 of the PEO Act penalises conduct which contravenes a licence condition and concluded that the alleged breaches of the relevant condition involved conduct giving rise to separate and discrete omissions and thus separate offences.

[I]n my opinion, in circumstances where as here what is to be carried out competently are different (albeit related) activities, one of which is storage, another of which is treatment, the fact that the condition deals with that conduct collectively is not to the point. The element of the offence is the contravention of the condition. But the condition, no differently from the [PEO] Act, refers in terms to both storage and treatment, a contravention will occur when treatment is undertaken other than competently, and a contravention will also occur when storage is undertaken other than competently. In other words, it is not necessary in order to breach a condition requiring the carrying out of a scheduled activity competently to store waste incompetently and to process waste incompetently.[64]

[64]Ibid 141-142 [59].

It follows that his Honour found the charge to be duplicitous as it related to both forms of conduct.

Another case concerning environmental legislation comes from South Australia. Brinkworth v Dendy[65] was an interlocutory appeal concerning three alleged offences of clearing native vegetation from certain land contrary to s 26 of the Native Vegetation Act 1991 (SA). Two charges were said to be duplicitous on the basis that the particulars of the counts stated that the vegetation had been cleared from 27 separate areas of the land in question.
[65](2007) 97 SASR 461.

Chief Justice Doyle analysed the terms of the offence provision and found that a s 26 charge could be laid with respect to the clearance of a single native plant. He went on to consider whether it was necessary to lay a single charge with respect to each native plant, when more than one was cleared. His Honour said:

As a matter of ordinary language, there is no difficulty in saying that in the circumstances the defendant cleared native vegetation from the area in question, assuming always that the area can be identified.
…
The nature of the activity with which s 26 deals suggests that often it will not be possible to identify individually the plants that have been cleared. They might be too numerous to be so identified. Or, even though relatively few in number, the prosecution might be able to prove no more than that native vegetation (described in general terms) was present on the land and that after the relevant activity the native vegetation had gone. The vegetation might have been burned or removed.
Practical considerations suggest that while the prohibited act is the clearance of plants, it should be possible to charge an offence that consists of the clearance of an unspecified number of plants, and that it should be permissible to lay the charge in a form that identifies the place or area where the plants were before they were cleared. Unless this is so, in many situations the prohibition in s 26(1) will be unenforceable.
That in turn suggests that a charge of clearing native vegetation from or on a specified area of land must be a permissible form of charge.[66]

[66]Ibid [32], [34]-[36].

His Honour did note limitations to this approach, holding that upon a final analysis, the question is ‘whether, in all the circumstances, the area chosen can properly be regarded as an area within which conduct amounting to clearance (as distinct from separate and distinct acts of clearance) has occurred.’[67] While each case is necessarily fact specific, His Honour found that relevant factors included the manner in which the boundaries of the area are identified, the extent of the area, the relative locations of the vegetation, the nature of the act or acts alleged to have cleared the vegetation, the period over which those acts took place and whether the acts were part of an organised project or were unconnected.[68]
[67]Ibid [40].
[68]Ibid [41].

Doyle CJ continued:

To so conclude is not to abandon the rule against duplicity. It is to recognise that because a charge may properly be laid alleging the clearance of native vegetation from an area of land, the question of whether a charge so laid is duplicitous is unlikely to be able to be decided by reference to the form of the charge, and will turn upon whether, when the relevant circumstances are known, a consideration of the area identified and the other circumstances discloses that the conduct alleged cannot be regarded as one or a single activity of clearance.
In other words, if it is permissible to lay a charge in a form that alleges the defendant cleared native vegetation from an area which is identified (and in my opinion this is permissible), it will not be a fatal flaw that the particulars of the charge allege that within the area in question there were multiple areas or stands of native vegetation. In such a case the question is whether, once the facts are known, the activity relied on as amounting to the clearance of native vegetation from that area can, in all the circumstances, be treated as one act or activity of clearance.[69]

[69]Ibid [43]-[44].

Justice Debelle, who agreed with Doyle CJ, also observed that the offence of clearance of native vegetation was in a category different from the offence provisions considered in both Walsh v Tattersall and Johnson v Miller, both of which imposed a distinct liability for a separate offence. His Honour said:

As I have said, it would be absurd and render the Act unenforceable if a separate offence existed in respect of each item of native vegetation which had been cleared. At the same time, it is not a continuous offence. If the offence of clearing native vegetation has any parallel in terms of matters which must be proved, it is to be found in offences which require proof of a number of events to constitute one activity. Examples are the offences of the trafficking in drugs or keeping a house of prostitution. However, the issue is not to be resolved by seeking to categorise the offences under one heading or another. Instead, it is necessary to examine the nature of the offending which the legislation seeks to proscribe. Where the nature of the offending is constituted by a series of acts which together produce a result, the prosecution is entitled to charge them in a single count giving particulars of the acts which constitute the offence.[70]

[70]Ibid [62].

Noting the interlocutory nature of the hearing, Debelle J stated that there was nothing to show that the clearing was not the result of one activity conducted over a period of time, but acknowledged that should the evidence disclose otherwise, such as if the clearing occurred at ‘quite different times in quite different locations’,[71] then the question of duplicity may need to be reconsidered.
[71]Ibid [66].

Analysis

An offence against s 245AC(1) can be formulated in three ways, irrespective of the particular limitations of the visa concerned. First, the Crown could charge a specific date on which they allege a single breach to have occurred. Second, the Crown could charge a between dates range within which they allege an individual continuing breach or a single transaction (i.e. multiple, connected breaches) to have occurred. Third, the Crown could charge a between dates range within which they allege a single non-continuous, non-transaction breach to have occurred at some time.

Each formulation is expanded upon, below.

Single offence, specific date

If a specific date is nominated, the breach of the visa condition will be ‘allowed’ at some precise point during that day. When that occurs will depend upon the conditions of the non-citizen worker’s visa. So, if the visa prohibits any work at all, it will occur the second the person commences work. If the visa prohibits work in excess of 20 hours per week commencing on a Monday, the offence will occur the second after the person has completed 20 hours work from a Monday. In both cases, the breach will ‘continue to be allowed’ for the period the conduct endures thereafter on that day.

Continuing offence, between dates

If a between dates range is nominated alleging a continuous offence or single transaction, the breach will ‘continue to be allowed’ immediately after the breach has occurred and for so long as it endures. The legislation specifically contemplates that a single offence might be charged to capture continuing conduct. So much is obvious from the statutory formulation of ‘allows or continues to allow’.

Where the Crown frames the charge against the accused as an ‘individual continuing offence’, the relevant breach must be continuous, that is not materially interrupted. But where the Crown frames the offence as a ‘single criminal transaction’, they must be able to prove that the numerous breaches said to amount to a single transaction were sufficiently connected. This is crucial so as not to offend the strict approach emphasised by Kirby J in Walsh v Tattersall.[72] Whether the Crown can so prove, or not, is fact-specific. And, under s 245AC(1) of the Act, the unique prohibitions of the visa held by the worker are part of those facts. This does not elevate the terms of the visa to be an element of the charge. Rather, those terms become relevant to the question of fact and degree.
[72]Paraphrasing Kirby J’s “indicia” in Walsh v Tattersall (n 10): that multiple breaches be sequential, identical in nature, occur in the same location and manifest an identical intention on the part of the accused.

So, where the Crown frames the charge as an individual continuing offence and the visa prohibits any work at all, there will be continuous conduct for so long as the person continues to work once they have started to do so and until they stop. If instead the visa prohibits work in excess of 20 hours per week commencing on a Monday, there will be ongoing conduct for so long as the person works over 20 hours in a week commencing on a Monday and ending on the next Sunday in a sustained pattern that can be properly characterised as not materially interrupted.

Where the Crown frames the charges as a single criminal transaction and the visa prohibits work in excess of 20 hours per week commencing on a Monday, the offence will occur as a single transaction from the second after the person has completed 20 hours work from a Monday for so long as he or she continues to work in excess of 20 hours per week in sufficiently connected circumstances until they cease doing so. It may not always be the case that the person will work in excess of 20 hours in consecutive weeks. That is, depending upon the specific facts of the case, the fact that in a between dates period of a number of weeks a non-citizen worker might have worked 20 hours or less in one or more of those weeks does not necessarily mean that the period of employment, when taken as a whole, could not amount to a single transaction.

Single offence, between dates

If a between dates range is nominated alleging a single breach, the breach of the visa condition will be ‘allowed or continued to be allowed’ at some precise – but potentially unknown or unknowable – point during that date range. So, if the visa prohibits any work at all, it will occur the second the person commences work. If the visa prohibits work in excess of 20 hours per week commencing on a Monday, the offence will occur the second after that person has completed 20 hours work from a Monday until midnight on the next Sunday in the chosen period.

The Crown case

As noted above, Redlich JA in PPP stated that latent duplicity depends upon the case sought to be made by the Crown.

Here the Crown did not allege a single, ongoing activity or single transaction of allowing each worker to work in breach of his or her visa during the offence period. Rather, this matter was prosecuted in the manner of the third possible formulation of a s 245AC(1) offence noted above: a between dates range within which the Crown alleged only a single breach. The Crown consistently pleaded the case on this basis. There is no other way to construe the prosecution submission that in each of the charged periods the student in question must have worked in excess of 20 hours in a week within the nominated period.[73]
[73]Kartawidjaja v The Queen [2019] VCC 2038, 13 [35].

His Honour Judge Smith reasoned that it was unnecessary for the Crown to prove exactly which week a breach occurred, notwithstanding that in all of the charges there was obviously more than one week in which a breach of the visa was allowed.[74] It is to be recalled that his Honour noted, by way of example, with respect to charge 46 involving Fery that she must have worked in excess of 20 hours per week for at least one week in each of the three fortnightly pay periods covered by the approximately six-week between dates charge.
[74]So much was conceded in written submissions filed in the County Court by Senior Counsel for the then-appellant, and re-stated by Judge Smith in Kartawidjaja v The Queen (n 73) 13 [22]: “…it was submitted: … the evidence does establish that each student must have worked for more than twenty hours in some week or weeks during the specified period.”

It is at this juncture that the plaintiff’s reliance upon S v The Queen[75] must be considered.
[75]S v The Queen (n 8).

In that case the accused was indicted on three separate counts of incest. None specified the day upon which the act of incest was alleged to have occurred, but rather alleged an unknown date during a twelve month period. Two months of the third year-long period overlapped with the second such period. The pleading was not duplicitous, but the High Court held that there was latent ambiguity given that the complainant could only identify two occasions of intercourse with some precision but without any specificity as to time, while also stating that intercourse occurred ‘every couple of months for a year’. The Crown was not permitted to lead evidence equally capable of referring to a number of occasions, any one of which might constitute the offence charged, and invite convictions on any one of them.

It was held that there was prejudice to the accused in having to defend himself in relation to an indeterminate number of occasions, unspecified in all but two instances, any one of which might constitute one of the offences charged if it fell within one of the relevant years.[76] That prejudice took a number of forms.
[76]The additional prejudice was that if an occasion fell within the period of overlap between the second and third counts, it was not possible to determine whether it was an offence charged by the second or third count.

One was that the accused did ‘not know with any certainty the charge he has to meet.’[77] Toohey J referred to the extract of the judgment of Dixon J in Johnson v Miller as reproduced in paragraph 65 above and said:

Of course this does not mean that the prosecution must specify a particular date as the occasion on which it relies. But it does mean that, as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged.[78]

[77]S v The Queen (n 8) 281.

[78]Ibid 282.

Another was that the accused was precluded from raising specific, effective defences – such as alibi – and could only offer a general denial. Dawson J observed that:

Because the occasions on which he was alleged to have committed the offences charged were unspecified, he was unable to know how he might have answered them had they been specified. It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant. An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness.[79]

[79]Ibid 275.

Gaudron and McHugh JJ considered that the prejudice went deeper than the effective denial of an opportunity to call alibi evidence:

The evidence of a number of offences said to have been repeated at two monthly intervals over a period of one year (which period might fall anywhere within a period of almost three years) had the same practical effect that was noted by Evatt J in relation to the course proposed in Johnson v Miller. Effectively, the applicant was required to defend himself in respect of each occasion when an offence might have been committed. Additionally, by reason that the offences were neither particularized nor identified, the accused was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance.[80]

[80]Ibid 286.

Further prejudice was occasioned by the impossibility of the trial judge determining the admissibility of similar fact evidence[81] and the inability, should the accused be charged a second time, to plead autrefois convict or autrefois acquit.[82]
[81]Ibid, 275 (Dawson J); 279 (Toohey J).
[82]Ibid, 276 (Dawson J); 281 (Toohey J); 284 (Gaudron and McHugh JJ).

Here Judge Smith found that the plaintiff suffered none of these prejudices.

In my view, his Honour was correct to do, so except in one aspect.

The plaintiff was aware of the case she had to meet. She acknowledged that she employed each non-citizen worker and that each such worker worked in excess of 20 hours during a week commencing on a Monday at least once during the charged date range. The place of work, the nature of the work, the nature of the employment relationship between a worker and the plaintiff and the plaintiff’s understanding of the visa restrictions all remained constant. The distinction between this situation and the facts in both Johnston v Miller and S v The Queen are obvious.

No specific defence such as alibi was apposite.[83] More than a general denial of the allegations was (theoretically) possible. The formulation of the date ranges, between three and eight weeks, was not oppressively broad. This is far from the situation in S v The Queen where the appellant effectively had to defend himself against potential instances of offending at two monthly intervals over the course of a year, which period might have fallen anywhere in the three year window. Nor, given the nature of the charges and the form of the evidence did any issue with respect to a complainant’s credibility or reliability arise. The central evidence was pay records which showed (through mathematics) that during a fortnightly pay cycle the number of hours worked combined to be in excess of 20 hours per week during at least one week of that period. Further, no issue of coincidence evidence or tendency evidence arose.
[83] Kartawidjaja v The Queen (n 73) [46]. Judge Smith also referred to the availability of the ‘forensic disadvantage’ direction that may be given under the Jury Directions Act 2015 in circumstances where a potential defence or alibi might have been inhibited by the failure of the Crown to identify a particular date – or week – of an alleged offence.

However, in my view the plaintiff was prejudiced as to the availability of a plea in bar. And that reveals the latent duplicity in the case sought to be made by the Crown.

With respect to each charge, there are at least two possible weeks in which a breach of the visa condition occurred, either one of which would be capable of supporting a conviction. In the event that the plaintiff was charged with the same offence again, there is no way of identifying with certainty which of the instances founded the conviction.

If the application of arithmetical logic to the pay cycles was such that the worker could have only worked once in excess of 20 hours during a seven day period calculated from a Monday for the entire charged period, it would be immaterial that the Crown could not identify precisely which seven day period that was. But where, as here, the Crown relied upon a single ‘weekly’ breach and there was more than one ‘weekly’ breach, the prosecution formulation of the case leaves in doubt which of those breaches the plaintiff was in fact convicted. The case sought to be made by the Crown meant that the charge is equally capable of referring to a number of occasions, each of which constitutes the offence.

The conviction is thereby ambiguous and uncertain. It is not clear which of the visa breaches was the real ground of the conviction. If charged again, the plaintiff would not be able to plead autrefois convict. While my view is that it is likely that any such further prosecution, if attempted in those circumstances, would be stayed as an abuse of process, that is not an answer to the uncertainty of any plea in bar consequent upon the manner in which the prosecution framed its case.

The plaintiff suffers very little unfairness. She is without merit and, at most, is denied a hypothetical inability to enter a plea in bar in the almost non-existent possibility that the Crown would lay further charges relating to each non-citizen worker for the same period.

However, as noted above, the rule against duplicity is underpinned by the orderly administration of criminal justice, as well as considerations of fairness.[84] The question of duplicity is not answered by simply asking if an accused was treated unfairly.[85] The rule against duplicity is to be interpreted strictly. If a complaint as to duplicity is justified in law, it should be upheld.
[84]S v The Queen (n 8), 284-285 (Gaudron and McHugh JJ).
[85]Rixon v Thompson (2009) 22 VR 323, [83] (Maxwell P, Weinberg JA and Kyrou AJA).

The charges, as prosecuted, are latently ambiguous. His Honour Judge Smith erred in finding that they were not.

Further Discussion

Notwithstanding that I have found that the charges as prosecuted are bad for latent duplicity, it was open to the prosecution to frame its case in a manner where no such duplicity would have arisen. Both the charges and the evidence led to support them would have been identical.

Noting this to be a question of fact and degree, the indicia identified by Kirby J in Walsh v Tattersall of a single criminal transaction are, in my view, all met in this case. For each charge, the multiple ‘weekly’ breaches of the visa are close in time, identical in nature, occur in the same location, occur within the same employment relationship, which endures for a period of no more than eight weeks and manifest an identical intention on the part of the plaintiff. Even if there was a week or weeks in which the non-citizen worker did not work in excess of 20 hours, the employment of the non-citizen worker amounted to one connected criminal transaction, punctuated by a number of specific breaches of the relevant visa.

That is far from an ‘ambitious’ formulation of the charge, to use the descriptor of Fagan J in Kiangatha Holdings.[86] It does not gather together disparate actions, but reflects the reality of ongoing employment in prohibited circumstances, rather more akin to the continual discharge of prohibited waste than discrete, multiple placements of prohibited material. The scope and purpose of the Act supports this interpretation.
[86]See paragraph 80, above.

As noted above, the purpose of the statutory provision is to burden employers with a responsibility to ensure that non-citizen workers are not allowed or continued to be allowed to work in breach of whatever visa circumscribes their ability to work in Australia. If an employer employs a non-citizen worker for a number of contiguous weeks and knows or is reckless to the fact that during at least every second week of that period that worker has worked in excess of 20 hours in breach of his or her visa, the employer’s conduct remains a single transaction.

That conclusion is fortified by the fact that this formulation of the charges would have occasioned no prejudice or unfairness to the plaintiff. She would have been in no doubt as to the case to be presented, no specific defences were realistically available in relation to some weeks but not others and, she would be able to avail herself of a plea in bar should she be charged a second time in relation to the same period(s).

However, the Crown did not formulate its case in this manner. This matter must be determined on the actual case the plaintiff was required to meet.

Was the date of the offence a material allegation?

Given my finding as to second error alleged on the face of the record, it is unnecessary to address this alleged error in any detail. I simply note the following.

In criminal pleadings, the general rule is that the date of an offence is not a material fact. It need not be proven beyond reasonable doubt. Exceptions to the rule occur when the conduct of the trial renders a date material, such as when the defence raises an alibi with respect to a particular date, or when statutory provisions render the specification of a date material, such as requiring the laying of an information within 12 months from the date of the commission of the alleged offence, or in sexual offences where the age of the alleged victim is an essential element of the charge.

The rule and the exceptions to it are uncontroversial.[87]
[87]WGC v The Queen (2007) 233 CLR 66, 80-81 [43]-[44], [46]-[47], 83 [50] (Kirby J in dissent ) and 109 [156]-[158] (Crennan J).

None of the exceptions to the rule arise in the instant matter. His Honour Judge Smith was correct to conclude that the date of the offence was not a material allegation.

Conclusion

The plaintiff has demonstrated an error on the face of the record.

Accordingly, I propose to make an order in the nature of certiorari quashing the order made by the County Court on 11 December 2019, by which order the plaintiff was convicted on nine charges and fined an aggregate of $10,000. I will hear counsel as to the precise form of that order and as to whether any other orders are necessary or appropriate.

I will hear the parties as to costs.

Associated Charge	Student Worker	Body Corporate	Dates of offence	Number of ‘weeks’	Hours worked
46	Fery GUNATRIY-ANINGRUM	Chaddy Mart Pty Ltd (as operator of two stores	16/7/09 - 31/08/09	8[4]	334
53	Abednego HARTANTO	Multiline Distributors ATF Juliandos UT	1/3/09 - 15/3/09	3	109
64	Melanie JULIANA	Chaddy Mart Pty Ltd	16/7/09 – 31/8/09	8	305.75
71	Yobel LIMANTO	Multiline Distributors ATF Juliandos UT	16/4/09 - 1/5/09	7	257.75
79	Oscar Suseno LUKITO	Multiline Distributors ATF Juliandos UT	16/10/09 - 30/11/09	8	193.5
90	Maria MACADELENI	Chaddy Mart Pty Ltd (as operator of two stores	1/10/10 - 15/11/10	7	302
101	Mira SARI	Multiline Distributors ATF Nathan UT	1/2/09 - 15/3/09	7	264.75
128	Prima Yoga SUKMANA	Multiline Distributors ATF Nathan UT	1/2/09 - 15/3/09	7	209.25
133	William WIYONO	Ozan Quatro	16/4/10 - 31/5/10	7	264.25

[2021] VSC 143

31 March 2021