R v RODGERS - [2009] SADC 46

District Court of South Australia
(Criminal: Application for Stay of Proceedings)
R v RODGERS
[2009] SADC 46
Reasons for Ruling of His Honour Judge Clayton (ex tempore)
17 April 2009
CRIMINAL LAW - PROCEDURE
DUPLICITY – UNCERTAINTY OF CONVICTION – PROVISION OF CRIMINAL LAW CONSOLIDATION ACT AMENDED TO CREATE NEW OFFENCE
The accused was charged on Information with three counts of unlawful sexual intercourse contrary to s 49(1) of the Criminal Law Consolidation Act 1935 which were alleged to have been committed between 1 March 2004 and 22 November 2007.
Up until 15 May 2006 s 49(1) made it illegal to have sexual intercourse with a person under 12 years of age but an amendment which took effect from 15 May 2006 made it illegal to have sexual intercourse with a person under 14 years of age. At all material times the complainant was under the age of 12.
HELD: (1) The offence of unlawful sexual intercourse with a person under 12 years of age contrary to s 49(1) of the Criminal Law Consolidation Act 1935 as it was until amended on 15 May 2006 and the offence of unlawful sexual intercourse with a person under 14 years of age contrary to s 49(1) of the Criminal Law Consolidation Act 1935 as it was after 15 May 2006 are separate offences.
(2) The Information which referred to offences prior to and after 15 May 2006 was duplicitous because of uncertainty as to which of the two offences was alleged.
(3) The Crown should elect, but the Crown declined to do so.
(4) The proceedings should be stayed until the Crown makes an election.
Criminal Law Consolidation Act 1935 s 49(1), s 281(1), referred to.
Kailis v The Queen (1999) 21 WAR 100; S v The Queen (1989) 168 CLR 266; R v Traino (1987) 45 SASR 473; Question of Law Reserved (No 2 of 1996) (1996) 88 A Crim R 417, considered.

R v RODGERS
[2009] SADC 46

I think that sexual intercourse with a person under 12 and sexual intercourse with a person under 14 are separate offences. The Crown has now acknowledged that. I take that view, notwithstanding the fact that both offences are created by the same subsection of the Criminal Law Consolidation Act 1935.
The particulars in the information allege that each of the three offences was committed between 1 March 2004 and 22 November 2007. To the extent that the particulars refer to the period prior to 15 May 2006, they refer to the original offence and to the extent that they refer to the period after 15 May 2006, they refer to the new offence.
The problem is that the defendant does not know which of the two offences he has to answer. From a practical point of view, there may be no difference because both charges are unlawful sexual intercourse, contrary to s 49(1), and at all times the alleged victim was under the age of 12 years, that is the lower of the two ages.
I have read Kailis v The Queen (1999) 21 WAR 100, to which Mr Rofe QC referred. I have also had regard to S v The Queen (1989) 168 CLR 266, R v Traino (1987) 45 SASR 473 and the decision of Court of Appeal in Question of Law Reserved (No 2 of 1996) (1996) 88 A Crim R 417.
Before I go to Kailis, I might just mention Traino. In that case the Chief Justice, King CJ said at p 475: ‘The first point taken on the appeal was that the information was bad for duplicity. No objection was taken to the information at trial nor was there any application to quash it on the ground of duplicity. Nevertheless duplicity is a ground available to a convicted person on appeal, notwithstanding failure to take the objection at the trial, and if duplicity is shown on the appeal the appellate court will set aside the conviction (R v Molloy [1921] 2 KB 364; R v Wilmot (1933) 24 Cr App R 63), if the result is uncertainty as to the criminal act of which the appellant has been convicted …’.
It seems to me that if the Appeal Court can intervene notwithstanding the absence of an application (pursuant to s 281(1) of the Criminal Law Consolidation Act 1935) prior to the empanelment of a jury, the trial judge should have the power to do the same thing.
In Kailis there was a rather similar factual situation. As here, at a time within the range of the dates alleged in the information, the relevant Act was amended so that what was initially an offence of ‘Indecently dealing with a girl under the age of 13 years’ was transformed into an offence of ‘Indecently dealing with a person -’, not ‘a girl’ ‘- under the age of 16 years’, not ‘13 years’.
The head note to that case says at para (4) on p 102 of the report: ‘Where it is uncertain as to which of two or more possible offences a person has been convicted of, there must necessary have been a fundamental flaw in the proceedings which, in turn, necessarily involves are miscarriage of justice, not withstanding that no application had been made to quash the indictment, and no specific objection had been made to its form’.
Malcolm CJ referred to the South Australian case of Question of Law Reserved (No 2 of 1996) (1996) 88 A Crim R 417 where Olsson J said at p 433 with respect to a pleading which attempted to plead both a statutory offence and a common law offence: ‘Such an attempted form of pleading is plainly void for duplicity, because each count can only attract a single verdict and it would not be possible to determine, in relation to a count of this type, to which type of offence a verdict attached. In any event such a formulation is not authorised by and is contrary to the rules set out in Sch 3 to the CLCA. It is further objectionable because the relevant common law offence is said only to have existed up to 6 July 1992, whilst the relevant statutory offence only existed thereafter. It is simply not permissible to allege in a single count, two separate offences alleged to have been committed over a period of time spanning either side of that date, there not even being a specification of what type of offence was said to have been committed at what period of time’.
Malcolm CJ referred to S v The Queen, where Gaudron and McHugh JJ said at para (4) – para (23) of Kailis: ‘… 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 on 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’.
In the present case the danger is that the accused would not know whether he had been convicted or acquitted of an offence against a 12-year old or an offence against a 14-year old. Indeed, it may be six members of the jury could find him guilty of one offence and six guilty of the other. That possibility highlights the unsatisfactory nature of the duplicitous information.
I have relied generally upon what Malcolm CJ said. At p 114 His Honour said: ‘Where an indictment is bad for duplicity, at common law the court will take the point on appeal even though it was not raised at the trial…’.
As I said, it seems to me if the court can take the point on appeal then it should be open to the trial judge to do the same thing.
At para 49 Malcolm CJ said: ‘In my view where it is uncertain as to which of two or more possible offences a person has been convicted of, there must necessary have been a fundamental flaw in the proceedings which, necessarily involves a miscarriage of justice…’.
In the present case I think there is a latent ambiguity, because one could never be certain as to which of the two possible offences the accused was convicted or acquitted of.
In Kailis Malcolm CJ said at para 53: ‘In my opinion, even where no point is to be taken at the trial, there will necessarily be a substantial miscarriage of justice if it is uncertain of what offence the accused has been convicted: cf Jones v The Queen [1980] WAR 203’.
In comparing the charges in Kailis Malcolm CJ said at p 117: ‘In my opinion, counts (6) and (7) were more clearly bad for duplicity than counts (1) and (4) as the offences were constituted by entirely different provisions. Notwithstanding that the basic elements of each offence remained the same, they were, nonetheless, different offences. I note that counsel for the Crown did acknowledge that if there was a doubt whether the offences occurred before or after 1 August 1992, the jury being satisfied that they did in fact occur at some time, the doubt would have to be resolved in favour of the accused in terms of penalty. In my view, if the Crown were unable to prove whether the offence occurred before or after 1 August 1992, regarding the alternatives to be available, the appellant would be entitled to be acquitted on both. In the end, therefore, the same position arises in relation to counts (6) and (7) as in relation to counts (1) and (4). Both counts (6) and (7) were bad for duplicity’.
As I have said, the problem is that the accused would never know which of the offences he had been acquitted of or convicted of. In my opinion, there should be a stay until such time as the Crown makes an election. In those circumstances I should discharge the jury.
RULING COMPLETED 10.28 A.M.