South Australian Police v Robert Michael Stephen Durbridge No. 4241 Judgment No. SCGRG 93/1700 Number of Pages 8 Criminal Law and Procedure (1993) 61 Sasr 22

[1993] SASC 4241

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN J

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - information, indictment or presentment - Practice and Procedure - Criminal Law - charges on information - duplicity - some charges of larceny of a drug were shown during evidence to allege two acts of larceny on the one day - 'latent' duplicity - duty of magistrate to require prosecutor to elect. Justices Act 1921-1936 (SA) 5182. Johnson v Miller (1937-38) 59 CLR 467; R v S (1992) 58 SASR 523 and Stanton v Abernathy and Anor (1989-90) 19 NSWLR 656 at 669-671, applied. Jemmison v Priddle (1972) l QB 489, discussed.

HRNG ADELAIDE, 22 October 1993 #DATE 3:11:1993
Counsel for appellant:     Mr A D Wainwright
Solicitors for appellant:    Crown Solicitor
Counsel for respondent:     Mr M T Boylan
Solicitors for respondent: White Berman

ORDER
Appeal allowed.

JUDGE1 BOLLEN J At all material times the respondent was a nurse employed by and at the Yalata/Maralinga Health Service. Amongst other things he was charged with the duty of administering injections of pain-killing drugs to patients. We are concerned with pethidine. He was authorised to do this only if a doctor had prescribed the drug for the patient. The respondent was required to enter the date of the injection, the amount, the time and the name of the doctor in a book. That book became an exhibit. It was referred to in the evidence as the "DDA Book". The respondent was required also to make an entry which showed the extent to which the stock of pethidine was diminished by the injection given. Someone else checked the book. 2. The respondent was charged by "the Police" upon information with sixteen offences on stated days, each of which was thus worded:- "On the...at Yalata in the said State, being a clerk or servant to the Yalata Maralinga Health Service, stole a quantity of pethidine of value. Section 176 of the Criminal law Consolidation Act." 3. Each charge was designated a minor indictable offence. It will be realised that each charge as drawn (should have been typed "8-16") suggests that one act of larceny occurred on each day charged. 4. The case for the informant was that the respondent had entered in the book a notation that he had at a certain time administered a dosage of pethidine by injection to a named patient on the authority of a named doctor. The "diminution" entry had been made, too, by the respondent. The respondent denied each charge. The informant called the relevant patient to say that he or she had not had a relevant injection. The informant called the doctor to say that he had not prescribed the injection of the drug for that patient at that time. 5. At the end of the case for the informant Mr Boylan, counsel for the respondent, submitted as to most counts that there was no case to answer. The transcript reads thus:-
"SUBMISSIONS BY CONSENT COUNTS 1-7 NO CASE TO ANSWER
    SUBMISSIONS RE COUNTS 88-16 INCLUSIVE AS TO CASE TO ANSWER BY MR
    BOYLAN COUNTS 8, 9, 10 AND 11 SUBMISSION OF NO CASE TO ANSWER ON
    BASIS OF DUPLICITY COUNT 12 - NO SUBMISSION COUNT 13 -
    SUBMISSION ON BASIS OF DUPLICITY COUNT 14 - SUBMISSION NO
    EVIDENCE TO SUPPORT COUNT - BY CONSENT NO CASE TO ANSWER COUNT
    15 - SUBMISSION ON BASIS OF DUPLICITY COUNT 16 - NO CASE TO
    ANSWER - BY CONSENT GENERAL SUBMISSIONS COURT ADJOURNS AT 12.45
    pm COURT RESUMED AT 2.50 pm REPLY BY APP WOJTASIK FOR
    PROSECUTION HIS HONOUR: I have considered the matters and read
    the authorities cited and it seems to me that the evidence in
    relation to this trial has given rise to ambiguity in relation
    to the charges that have been laid other than for Count 12 which
    causes me to come to the conclusion that the charges other than
    Count 12 are bad for latent duplicity. FURTHER SUBMISSIONS BY
    MR BOYLAN IN RELATION TO COUNT 12 OTHER THAN ON THE BASIS OF
    DUPLICITY REPLY BY APP WOJTASIK HIS HONOUR GIVES HIMSELF A
    PRASAD DIRECTION IN RELATION TO COUNT 12 AS TO COUNTS 1-7
    INCLUSIVE AND COUNTS 14 and 16 - HIS HONOUR FINDS NO CASE TO
    ANSWER AS TO COUNTS 8-11 INCLUSIVE AND COUNTS 13 and 15 - CHARGES
    DISMISSED ON BASIS OF DUPLICITY AS TO COUNT 12 - HIS HONOUR
    GIVES HIMSELF A PRASAD DIRECTION AND DISMISSES THE CHARGE." 6. The appeal is concerned only with counts 8, 9, 10, 11, 13 and 15. The informant appeals. The grounds of appeal speak of the counts which I have mentioned minus count 10. But I think count 10 is covered by the appeal or intended to be covered because it will have been seen that before the magistrate dismissed counts 8-11 inclusive and counts 13 and 15 on the basis of duplicity. It is a finding of duplicity about which the informant complains. The grounds of appeal are:-
    "(i) The learned Stipendiary Magistrate erred in ruling that
    there was no case to answer and consequently erred in dismissing
    these counts.
     (ii) The learned Stipendiary Magistrate erred in holding that
    each of these counts was bad for duplicity.
     (iii) In the alternative to (ii) above; if there was duplicity
    within each of these counts the learned Stipendiary Magistrate
    erred in dismissing them without first giving the informant the
    opportunity to cure the duplicity by election." 7. Mr Boylan, for the respondent, took two counts to illustrate his point about duplicity. He is recorded in the transcript before me as saying:-
"MR BOYLAN: Count 11 relates to a patient called Mr May. Mr
    May gave evidence at the first part of the trial in Ceduna, that
    is count 11, and the date on the count is 14 April 1992. I will
    just find the relevant entry in the records. It is acknowledged
    that on 14 April last year the accused, the respondent, stole
    Pethidine, and they rely upon entries on p4 of exhibit P1 which
    say: 14 April, 1500 hours, name of patient Jack May, dose 50 mg,
    and a signature said to be the respondent's, authorised by Dr
    Thomas. And then at 1535 hours Jack May, another 50 mg with a
    further signature authorised by Dr Thomas. So the records show
    two abstractions. HIS HONOUR: 35 minutes apart. Do we know
    what was wrong with Mr Jack May? MR BOYLAN: I can find out, but
    I think it was suspected chest problem probably heart. He was
    given Pethidine, given an injection, an ambulance was called
    straight away, and he was taken to Ceduna, so it wasn't
    apparently some minor ailment, there was a sufficient problem.
    And Your Honour will note a 50 mg injection, not the larger one.
     Now, one charge of larceny is preferred in respect of Mr May,
    but Mr May gave evidence at p31 that he received one injection
    and there's no evidence that it wasn't Pethidine, none at all.
    Dr Thomas said he thought perhaps there was a mistake on the
    record because, when he looked at the hospital notes, Dr Miller
    was shown as the authorising doctor and Dr Miller was not asked any
    question at all about this. So there's no evidence from anywhere to
    suggest that it is not Pethidine, and the patient says that he
    received an injection.
     Now, I haven't got the hospital notes here, but I think
    there's a suggestion that he may have been given another one in
    the ambulance, and there's some suggestion in the evidence that
    it is a long trip to Ceduna, and if the patient is uncomfortable
    that Pethidine is administered. Certainly in the case of a man
    named Dodd, in respect of whom there's no appeal, one doctor
    said, 'Well, it is a long trip, and that is not uncommon'.
    Indeed, he said he authorised it for him, I can't remember but
    there may not be any evidence for this man.
     But what is the position of the respondent if the magistrate
    says, 'Well, you have charged that he has taken Pethidine.
    Haven't said 50 mg. Haven't said 100 mg, haven't said 75 mg,
    and you haven't given any value by which the court might have
    some idea of the amount taken. All you have charged is
    Pethidine.' Now on Mr May's evidence the magistrate must accept
    as a reasonable possibility that he was given at least one
    injection of Pethidine, because Mr May said he got the
    injection, there is an injection recorded in the DDA book and
    the hospital notes, and there's no suggestion that that was not
    Pethidine. If he were convicted he is entitled to say, 'Well,
    what have I been convicted of?', and that leaves the magistrate
    and it leaves the prosecution in the position that the High
    Court found to exist in S v The Queen, which is on my learned
    friend's list, where the court simply cannot say on some
    occasions what something refers to. It is for that reason that
    I say the Crown should have said 'At 1500 hours', 'at 1535
    hours'. There may not be any magic in the time, but there is
    more than magic in two extractions. HIS HONOUR: You say it
    could be uncertain where he is convicted of a stealing at 3.00
    or 3.35? MR BOYLAN: Yes, and it may be important. If Your
    Honour goes to count 13, Gary Findlay was the patient, Mr
    Findlay gave evidence, 17 April, it is alleged in the
    information that there is one Pethidine. The records show two
    injections, interestingly, one at 10.30 hours of 100 mg, and one
    at 09.40 of 75 mg. Sorry, both of 75 mg, I got that wrong. But
    if Your Honour looks at the entries, one of those 75 mg amounts
    came from an ampoule containing 100 mg. The other appears on
    PIA, and came from an ampoule containing 50 mg. It does come
    from two ampoules, not one. But the point is it comes from
    different stocks. If it does come from different stocks - and
    it does on the records - then the prosecution should have
    pleaded that, because they are able to refer to two different
    things and they didn't. Mr Findlay's case is also interesting
    because he said in his evidence, 'I didn't receive any
    injections', but then he says 'There was an occasion when I
    received an injection', and there is confusion in his evidence
    about what he was suffering from on the occasion that he
    received that injection.
     Now, if the magistrate allowed this as a reasonable
    possibility, that he received one of those injections on the day
    charged, what is left? All of that could be cured or possibly
    cured - it may be incurable, but there's hope that it could be
    cured - if the Crown said, 'Well, there was one abstraction in
    respect of the 10.30 and one abstraction in respect of the
    9.40'. Now, I take my learned friend's point, 'Well, that is
    within the accused's or the defendant's knowledge', but that is
    not how the Crown chose to run its case. If the Crown wanted to
    run its base on that basis, then it should have proved the exact
    system obtaining in the hospital with respect to the DDA book,
    and it didn't.
     The very fact that people do make checks is sufficient to
    suggest to the prosecution that it is highly unlikely, to say
    the least, that this man would have taken one amount, all of the
    amounts at once, and filled out the books later because anybody
    going to the DDA cabinet who was required, in turn, to fill out
    the books, would have noticed, because they had to do accounts.
    If that point is proven, then the prosecution should tell the
    defendant exactly what they say with respect to each one so that
    he can say, 'Well, you used against me the evidence that I
    haven't had that signature countersigned. At 9.40 on that day
    there were no other nurses in the hospital because two of them
    had gone to Maralinga, two of them to Oak Valley, and one of
    them was out around the tent sites doing the morning rounds'.
But he is not given that opportunity." 8. The suggested duplicity does not lie in the drawing of the charges in the information. It is duplicity sometimes called "latent duplicity". In the leading case of Johnson v Miller (1937-38) 59 CLR 467 it is called "latent ambiguity". The evidence offered in relation to each challenged offence set up two abstractions of drugs from the store and the giving of two injections on the same day at different times. The vice suggested in this manner of charging is that it at least handicaps the respondent in his defence. If he faces two suggested acts on the same day he cannot look back to that day and say, for example, "Oh, I was away from the Health Service for some of that day". It is really a question of lack of particularity. "But", says Mr Wainwright for the appellant, "the informant has no means of giving more particularity. It knows no more of abstraction from store and injection than is written by the respondent in the DDA book. Knowledge of timing of injection is within the knowledge of the respondent." 9. On the authority of (for example) Johnson v Miller (supra), R v S (1992) 58 SASR 523 and Stanton v Abernathy (1989-90) 19 NSWLR 656 especially at 669-671, I think that the giving of adequate particularity required the informant to lay one count, one charge, for each abstraction and injection. The informant could have done that by examining the DDA book. He could then, for those days on which the happening of more than one offence was to be suggested, have laid (speaking broadly) one charge of larceny at the time of one injection and one at the time of the later injection. "But", says Mr Wainwright, "even if there was imperfection in drafting there was no duplicity raised at the end of the case for the informant. Perhaps it would have emerged from the evidence of the respondent. Then it could have been dealt with." There is much to be said for these submissions by Mr Wainwright. But in Johnson v Miller (supra) it was held that there was a defect in particularity in the proceedings which did not in the end identify in relation to which of the 30 men seen to have emerged from the hotel the charge was laid. The order of dismissal was upheld largely by virtue of provisions of the then s182 of the then Justices Act. But at page 492 Dixon J (as he then was) said:-
"I am, therefore, of opinion that the learned magistrate was
    justified under s182 in the course he took. But there is
    another reason for the conclusion that the complaint made be
    dismissed if it covers equally two offences which cannot be
    distinguished but cannot be heard together. It is that relied
upon in Johnson v Needham (1909) 1 KB 626, namely, that, where a
    complainant does not pursue one charge as he is entitled to do,
    but asks for a conviction upon a plurality and will not by
    election do otherwise, a conviction upon this complaint may be
    refused. This reasoning applies a fortiori where he persists in
    refusal to identify the transaction upon which a conviction is
    sought." 10. And Johnson v Miller can be taken as authority for suggesting that each abstraction and injection should have been laid as a separate charge even if each occurred on the same day. I draw attention to the discussion of Johnson v Miller in Stanton v Abernathy (supra) by Gleeson CJ at pages 668-671. 11. In the course of his reasons Gleeson CJ said of the evidence then before the Court of Appeal of New South Wales (at page 669) -
     "Pausing there, it is to be observed that a very similar
    situation applies in the present case. The information charges
    the present appellant with an offence in the words of the
    statute, and on its face charges him with only one such offence.
    However the alleged facts as stated by the crown prosecutor in
    his opening and as contained in the evidence disclosed a latent
    ambiguity in the complaint. That ambiguity might have been
    removed by making an amendment or by giving particulars
    selecting one false statement alleged to have been made by the
    appellant. Yet such inadequate particulars as have been given
    demonstrate that it is alleged that a number of false statements
    have been made by the appellant. The particulars have not
    removed the ambiguity, but have compounded it." 12. I think it well for me to recite the headnote in Stanton v Abernathy. I think it accurately summarises the reasons for the decision of Gleeson CJ with whom the other members of the Court Appeal agreed. It is:-
"The Justices Act 1902, provides:
     '30. (1) No objection shall be taken or allowed to any
    information, summons, or warrant in respect of - (a) any
    alleged defect therein in substance or in form; or of (b) any
    variance between any information, summons, or warrant and the
    evidence adduced in support of the information at the hearing.
     (2) Where in the case of a summons or warrant any such defect
    or variance appears to the Justice or Justices present and
    acting at the hearing to be such that the defendant has thereby
    been deceived or misled such Justice or Justices may, at the
    request of the defendant, adjourn the hearing of the case to
    some future day.
     ... 145A.(1) The description of any offence in the words of
    the Act, or any order, by laws, regulation, or other document
    creating the offence, or in similar words, shall be sufficient
    in law.'
     By information the appellant was charged with giving 'evidence
    that was to the knowledge of (the appellant) false in certain
    material particulars' before the State Drug Crime Commission
    contrary to the State Drug Crime Commission Act 1985, s20. In
    response to a request for particulars the subject matter of the
    false evidence was identified but there was no specification of
    the particular evidence which was alleged to be knowingly false.
    The appellant sought various forms of relief in relation to a
    part-heard committal proceeding and appealed from the refusal of
    relief.
     Held:
     (1) Allegations of a contravention of s20 of the State Drug
    Crime Commission Act 1985 are in the same position as
    allegations of perjury or making false statements on oath. Each
    false statement involves a separate crime. Commonsense and
    fairness will determine how many statements ought to be taken to
    have resulted from a number of utterances. (662C) R v Traino
(1987) 45 SASR 473, 27 A Crim R 271, applied. R v M (1980) 2
    NSWLR 195, distinguished.
     (2) The information was duplicitous as the prosecution
    conducted its case on the basis that a number of pieces of false
    evidence, on separate, although related, subjects was given yet
    the information charged a single offence in the terms of the
    statute and neither within the information nor elsewhere did the
    prosecution particularise the evidence alleged to be false or
    the material respects in which it was false. (665A-C) (3) The
    provision of the Justices Act 1902, s145A, would not save the
    information as that section did not do away with the common law
    rule that an information must identify the essential factual
    ingredients of the actual offence and s30 of the Act would avoid
    the consequences of technical defects but would not overcome the
    requirements of natural justice. (666E-667F). John L Pty Ltd v
Attorney-General (NSW) (1987) 163 CLR 508, followed. Hedberg v
Woodhall (1913) 15 CLR 531, considered. (4) Whilst the
    information was defective for duplicity and lack of particulars
    it was not incumbent upon a magistrate in committal proceedings
    to dismiss it. The magistrate had an implied power to direct
    the furnishing of particulars and require the prosecution to
    elect to charge the appellant with a single false statement to
    the exclusion of any others or amend the information and lay one
    charge in respect of each alleged false statement. (670D, 671F)
Johnson v Miller (1937) 59 CLR 467, applied. (5) Proper
    particulars would involve formulating the substance of the false
    evidence which the appellant was alleged to have given in the
    course of his examination. (671D-G)" 13. The solution to the case of Stanton v Abernathy was stated by Gleeson CJ as follows (p671):-
"In the present case the information suffers from latent

    duplicity. It contains no particulars, and the further and
    better particulars that have thus far been given are inadequate.
    They are, however, sufficient to expose the duplicity. As
    Yeldham J rightly observed, learned counsel who appeared for the
    appellant before the magistrate has not at any stage to date
    submitted that the prosecutor should be required to elect. His
    submission has been that the information is incurably defective.
    The problem has been complicated by uncertainty as to whether in
    truth the allegations made against the appellant, if sustained,
    would disclose one offence or more than one offence. As I have
    earlier indicated, I consider that they would, if all made out,
    disclose more than one offence. The authorities do not in my
    view justify a conclusion that the information is incurably
    defective, or not such as to found jurisdiction in the
    magistrate. However, the proper course now to be pursued, it
    being apparent that the prosecutor is alleging more than one
    offence, is for the prosecution to be required both to give
    further and better particulars in accordance with the following
    portion of this judgment, and either elect to charge the
    appellant with making one false statement to the exclusion of
    any others, or alternatively to frame and propound additional
    charges, laying one charge in respect of each alleged false
    statement. If the prosecution declines to adopt either of those
courses, then the information should be dismissed." 14. I think that the charges under challenge here were bad for duplicity. I would really prefer to say bad for lack of particularity. But I can see that the informant can give no better particulars than it already has given. 15. The law does not demand a dismissal of the charges. The informant should be required to elect on which event he proposes to rely as evidence of the offence in each charge. The complaint should not now be amended so long after the event. But where two injections appear to be recorded on the one day the informant should say now on which he relies. This course seems to me to be consistent with Johnson v Miller and Stanton v Abernathy. If those cases are contrary to the decision in Jemmison v Priddle (1972) 1 QB 489 then I think I should follow the Australian cases. 16. The magistrate should not have found that there was no case to answer on the score of duplicity. He should have called upon the informant to elect. A refusal to elect would lead to dismissal. Mr Boylan offered a very powerful argument against a remitting with a direction to require election. He said that the prosecutor did not seek to be put to election. He drew attention to the long history of delay in the matter. The transcript before the magistrate shows that the prosecutor did not ask to be put to his election. But I think that it fell to the magistrate to require the prosecutor to elect. I think that the magistrate should have distinctly required election. 17. I allow the appeal. I set aside dismissal of these charges. I remit them to the magistrate who was hearing them for him to proceed according to law.