Tuck v The Queen
[1999] TASSC 135
•8 December 1999
[1999] TASSC 135
CITATION: Tuck v R [1999] TASSC 135
PARTIES: TUCK, Suzanne
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: Appellate
FILE NO/S: CCA85/1999
DELIVERED ON: 8 December 1999
DELIVERED AT: Hobart
HEARING DATE: 9 November 1999
JUDGMENT OF: Cox CJ, Slicer J, Evans J
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Joinder - By statute - Other cases - Whether appropriate to charge one count based on general deficiency or several counts of admitted general thefts.
Evidence Act 1910 (Tas), s114.
S v R (1989) 168 CLR 266; Johnson v Miller (1937) 59 CLR 467 at 487; R v Greenfield (1973) 57 Cr App R 849, distinguished.
R v Lawson [1952] 1 All ER 804; Walsh v Tattersall (1996) 188 CLR 77, referred to.
Taylor v R (1996) 6 Tas R 310; R v Moussad [1999] NSWCCA 337, considered.
Aust Dig Criminal Law [723]
Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Averments - Uncertainty, duplicity and ambiguity - Whether trial judge erred in refusing the appellant's application to quash the indictment pursuant to the Criminal Code, s352(1) - Appeal dismissed.
Criminal Code (Tas), s311(2).
Evidence Act 1910 (Tas), s114.
Walsh v Tattersall (1996) 188 CLR 77; R v Greenfield (1973) 57 Cr App R 849; R v Wright 7 Cox CC 413, considered.
R v Bookman 5 C & P 300; R v Richardson 8 Cox CC 448; R v Lambert 2 Cox CC 309, referred to.
Aust Dig Criminal Law [713]
REPRESENTATION:
Counsel:
Appellant: S J N Brown
Respondent: M A Stoddart
Solicitors:
Appellant: Clarke & Gee
Respondent: Director of Public Prosecutions
Judgment Number: [1999] TASSC
Number of paragraphs: 44
Serial No 135/1999
File No CCA85/1999
SUZANNE TUCK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
SLICER J
EVANS J
8 December 1999
Order of the Court:
Appeal dismissed.
Serial No 135/1999
File No CCA85/1999
SUZANNE TUCK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
8 December 1999
The appellant was charged with one count of stealing, the particulars being that:
""suzanne tuck at Launceston in Tasmania between on or about the 1st day of July 1993 and on or about the 30th day of August 1994 stole approximately $53,000.00 in cash the property of the Ravenswood Over 50's Club."
On being arraigned, her counsel moved to quash the indictment pursuant to the Criminal Code, s351(1), submitting that although the indictment charged a single count of stealing the sum of $53,000 on one day in the 14 month period specified in it, the Crown case was that between those dates she regularly stole either $1,000 or $2,000 by wrongfully taking those sums entrusted to her by the club for the purposes of being banked and that trial on that single count would prejudice and embarrass her in her defence. The submission was over-ruled and in due course she was convicted.
Although there was no patent duplicity in the indictment which did allege a single act of stealing, there was latent ambiguity, for that indeed was the Crown case, as very soon emerged. The appellant had been the wife of the treasurer of the club, which virtually every Thursday and Sunday nights throughout the year, conducted bingo sessions. The takings from this activity, along with other takings from raffles and other games of chance, were entrusted to the appellant and her husband and taken by them to their home for banking in the club's account the following day. Prior to leaving for home, the appellant and her husband each night counted the notes, while other club members counted the coins, but no record of the actual takings appears to have been made before the Tucks removed them for banking. After August 1994, club officials commissioned an audit and by comparison with the takings for previous years, the auditors expressed the opinion that there was a probable deficiency of $40,000 - $50,000 for the year ending 30 June 1994 and a further short-fall of about $7,500 for the ensuing two months.
The appellant was interviewed by the police and made a number of admissions which were not challenged on the trial, although it was suggested that she was in a distressed state which might cast doubt upon their reliability. She admitted that she regularly went to the Launceston Casino each Thursday and Sunday nights after returning home with the evening's takings from the club and extracting therefrom, on average, $1,000 per night in the first twelve months and $500 per night in the last two months, which sums she invested in gambling. She admitted to losing a large amount of the money, but claimed that from her winnings, she had repaid about one-half the money she had taken. The charge of stealing $53,000 represented approximately the deficiency suggested by the auditors and roughly coincided with the amount she admitted taking, less an allowance of half of that amount in recognition of her repayments. At the conclusion of the Crown case, she neither gave nor adduced evidence in her defence.
The principal ground of appeal was initially stated to be that:
"The learned trial judge erred in law in refusing the appellant's application to quash the indictment pursuant to section 352(1) of the Criminal Code in that
…
(c)the indictment was calculated to prejudice and/or embarrass the appellant in her defence to the charge."
Reliance on that ground was, however, abandoned at the hearing of the appeal and placed on the proposition that "(c) the indictment and the conviction founded upon it are bad for duplicity and/or uncertainty". We granted leave to amend the grounds of appeal accordingly. Counsel for the appellant expressly conceded that he could not advance any reason for us to conclude that she was embarrassed in her defence or in any way prejudiced by the verdict on the single count.
On the Crown case, there clearly was a succession of individual thefts committed on 100 or more occasions in the 14 month period covered by the indictment. Having regard to the appellant's confessional statements, an indictment containing some 105 counts alleging the theft of approximately $1,000 twice weekly in the first twelve months (less some weeks over the Christmas season) and of $500 in the following two months could easily have been framed and proven, the deficiency evidence strengthening the overall Crown case. In fact, when initially charged by the police, the complaint was framed in that way and until a day or so before the trial, a draft indictment in such a form with 105 individual counts was delivered to the solicitors acting for her in the hope of there being a plea. However, when it became clear that the matter would have to go to trial, the prosecutor filed the indictment based on a single count. She cannot complain of any loss of the right to elect summary trial, as she chose trial in the Supreme Court when initially charged with multiple counts.
Although counsel at the trial sought to rely upon the Code, s352(1) inasmuch as the indictment was said to be calculated to prejudice or embarrass the accused in her defence to the charge, that subsection enables the judge to quash the indictment if it is formally defective. A duplicitous indictment is formally defective. Prima facie only one offence may be proved under each count of an indictment (Johnson v Miller (1937) 59 CLR 467 at 487). The reason for the rule is said to arise as a matter of "elementary fairness" (Gee v General Medical Council [1987] 1 WLR 564 at 570 - 571) or as "a basic consideration of fairness" (S v The Queen (1989) 168 CLR 266 at 284). In Walsh v Tattersall (1996) 188 CLR 77, Kirby J dealt with the principles governing duplicity in criminal counts (at 104 et seq), acknowledging the difficulty courts had often experienced in detecting in any given case whether the common law rule against duplicity has been infringed, and concluded, at 109:
"Exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature; and in other anomalous cases. However, such cases apart, although the courts in England and New Zealand have taken a more lenient view, this Court has, until now, favoured a rule of strictness."
The wrongful activities of the appellant alleged in this case cannot be viewed realistically as "one composite activity", nor, although they formed a repeated pattern of criminal conduct, can they be said to constitute an offence which is continuing in nature, like supplying or trafficking in drugs (eg, Hamzy v The Queen (1994) 74 A Crim R 341) nor, with respect, do I see the cases fitting into the anomalous category of cases referred to by Kirby J. The references he cited were R v Lawson [1952] 1 All ER 804 and R v Tomlin (1954) 38 Cr App R 82. In the former case, a solicitor had fraudulently converted funds in her client's account by drawing against that account, paying it into her office account and then applying parts of it, from time to time, to her own purposes. She was charged on a single count for stealing the deficiency. Lynskey J dismissed an objection that the count was duplicitous, saying (at 808):
"In my opinion, this is a proper case for the indictment to go forward in this form. I agree that in the ordinary case, where it is possible to trace the individual items and to prove a conversion of individual property and money, it is undesirable that one should include them all in a count alleging a general deficiency. Such a count may be bad for uncertainty, but in a case like this, where the individual items cannot be traced in detail, but where the evidence, if the jury accept it after hearing evidence for the defence, makes it clear that there has been a fraudulent conversion, it seems to me that the prosecution are entitled to frame their counts in the indictment in the way in which they have been framed here."
In the latter case, an employee in a shoe shop was charged with embezzlement of a sum equal to the value of shoes found to be missing on stock-take. He admitted the deficiency and paid back the value of the missing goods. It was not clear whether he had stolen the goods or the proceeds of their sale, and in either case, as one transaction or as many. The Court of Appeal dismissed the appeal but said, at 89 - 90:
"We desire to make it plain in conclusion, agreeing therein with Lynskey J, that in the ordinary case, where it is possible to trace the individual items and to prove a conversion of individual property or money, it is undesirable to include them all in a count alleging a general deficiency.
What we are not willing to do is to elevate a rule of practice, applicable to circumstances where it may be required to avoid injustice, into a rule of law applicable to circumstances where it will defeat justice."
In Tasmania since the Evidence Act 1910 was passed, it has contained the following provision:
"114 (1) On the trial of a person charged with the stealing or embezzlement of money, an entry in any book of account shown to be kept by the accused person, or kept in, under, or subject to his charge or supervision, purporting to be an entry of the receipt of any money, shall be evidence that the money so purporting to have been received was so received by him.
(2) On the trial of a person charged with any such offence, it shall not be necessary to prove the stealing or embezzlement by the accused person of any specific sum of money if, on examination of the books of account or entries kept or made by him, or kept or made in, under, or subject to his charge or supervision, or by any other evidence, there is proof of a general deficiency, and if the jury are satisfied that the accused person was guilty of stealing or embezzlement of the deficient money or any part of it."
Since 1924, embezzlement has been subsumed by the Criminal Code under the crime of stealing. Proof of the receipt of money by an offender may be facilitated by entries in books of account and if any general deficiency is revealed, he may be convicted if the jury are satisfied he stole it or any part of it; but the section is expressed in wide terms so as to apply to any case of stealing money where a general deficiency in moneys received by him is proved by any means ("or by any other evidence"). There are similar statutory provisions elsewhere (Crimes Act 1900 (NSW), s161; Criminal Law Consolidation Act 1935, s169; Queensland Criminal Code, s568(1); and Western Australian Criminal Code, s2586(1)). No similar provision appears to have been in force in the United Kingdom, at least when Lawson (supra) and Tomlin (supra) were decided on the basis of the common law. The present single count of stealing is accordingly authorised, notwithstanding that the conduct extended over 14 months and, on the basis of the appellant's admissions and other evidence which was available as to when bingo had been held, the individual acts of theft could be identified with sufficient particularity to enable a jury to be satisfied beyond reasonable doubt of her guilt on each and every count.
In my opinion, the appeal should be dismissed.
File No CCA85/1999
SUZANNE TUCK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
8 December 1999
The appellant was convicted of the crime of stealing the sum of $53,000 in cash, the property of a social club, contrary to the Criminal Code, s234.
Originally, the appellant had been charged jointly with her husband, who was, at all relevant times, the treasurer of the club from which the money had been taken. She was charged by complaint which comprised over 100 separate charges. Before trial, a draft indictment comprising 105 counts was supplied to her solicitors, but never filed. The indictment was in accordance with a calculation made by accountants as to the amount of money missing from the income and assets of the club and statements made by the appellant that she had improperly taken some $2,000 per week over a 56 week period, of which approximately one half had been replaced.
Discussions were held between the Office of the Director of Public Prosecutions and the solicitors for the appellant, doubtless to explore whether the prosecution could be resolved by a plea. When the discussions were found to be non-productive, an indictment in general terms was filed, addressed solely to the appellant. It had been decided that the appellant and her husband should be tried separately. The indictment proffered one count of stealing, whilst the particulars stated that:
"suzanne tuck at Launceston in Tasmania between on or about the 1st day of July 1993 and on or about the 30th day of August 1994 stole approximately $53,000.00 in cash the property of the Ravenswood Over 50's Club."
Following concerns expressed by members of the club, the husband of the appellant was replaced as its treasurer in September 1994. An investigation was undertaken by a firm of accountants which resulted in the preparation of two reports in January and February 1995. The relevant conclusions of the investigation were:
"There appears to be money unbanked from Bingo during 1993/94 however it is hard to be exact as to the amount without proper records to support our findings. It would appear that an amount of between $40,000 to $50,000 has been misappropriated."
Following the investigation, the appellant met with police officers and the accountant, after which she was formally interviewed by those police officers. The account of that interview, recorded in audio/visual form, was not challenged, although counsel suggested in the course of cross-examination that the emotional state of the appellant rendered it unreliable. During the course of the interview, the appellant admitted that:
(1)she was "responsible for stealing on an average about two thousand dollars per week from the Ravenswood Over Fifties Club Bingo money";
(2)the moneys were taken from the proceeds of the Thursday evening and Sunday afternoon activities between 1 July 1993 and August 1994;
(3)that much of the money was used for the purpose of her own gambling;
(4)that approximately one half of the moneys had been replaced;
(5)that on some, but not all, occasions she was responsible for the banking of the proceeds;
(6)that her husband, as treasurer, also had responsibility for, and the conduct of, banking;
(7)that few records were kept and the primary method of defalcation was by under-banking the proceeds of the bingo activities;
(8)that she did not take issue with the calculations of the accountant, although at one stage it would appear she admitted that she took two thirds of the $40,000 to $50,000 which was missing;
(9)she was unable to identify, with precision, details of particular amounts of money taken on specific dates.
The Crown case was based on the position of the appellant and her husband in the affairs of the club, her admitted involvement in the receipt and banking of moneys, the general deficiency as found by the accountant and her admissions to investigating police. The appellant neither gave nor adduced evidence on the trial.
The amount specified in the particulars of the indictment was to the advantage of the appellant. She had admitted the stealing of a far greater amount, but the prosecution was content to proceed on the basis of the sum of money not replaced.
Before the jury was empanelled, counsel for the appellant sought to quash the indictment, on the ground provided by the Code, s352(1), which states:
"The accused person may before pleading apply to the judge to quash the indictment on the ground that it is calculated to prejudice or embarrass him in his defence to the charge, or that it is formally defective."
Although counsel at the trial advanced specific prejudice to the appellant as a basis for the quashing of the indictment in that it did not adequately disclose the Crown case, it is clear that his central contentions were:
(1)the indictment involved duplicity;
(2)its framing deprived the appellant of a right of election for amounts of $500;
(3)the jury might convict of the crime of stealing whilst not being satisfied as to the whole amount stolen.
There could have been no prejudice by reason of lack of notice or incapacity to elect summary trial. The appellant had a right of election in relation to the 105 charges contained in the complaint. She had been provided with proper notice as to the basis on which the Crown was putting its case and the delivery of the draft indictment would, without more, have provided her with adequate detail of how the evidence related to the crime charged. Indeed, the indictment, as filed, was to her advantage.
The notice of appeal, as amended, claims error in that:
"a On a proper construction of the Code, each crime alleged must be charged by separate count, or alternatively
b In the circumstances of the case each crime of stealing alleged ought to have been the subject of a separate count, or alternatively
c The indictment and/or the conviction founded upon it are bad for duplicity and/or uncertainty."
The Code, s311(2) provides:
"… charges of more than one crime may be joined in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character. In any other case an indictment shall charge one crime only."
In this case, there were a large number of acts of taking. The law has long permitted the presentment of one indictment where a number of items have been taken. In the United Kingdom Act 24 - 25 Vict c 96, s6 provided:
"… if upon the trial of any Indictment for larceny it shall appear that the property alleged in such indictment to have been stolen at one time was taken at different times, the prosecutor shall not by reason thereof be required to elect upon which taking he will proceed, unless it shall appear that there were more than three takings, or that more than the space of six months elapsed between the first and the last of such takings; and in either of such last-mentioned cases the prosecutor shall be required to elect to proceed for such number of takings, not exceeding three, as appear to have taken place within the period of six months from the first to the last of such takings."
The provision repeated that earlier enacted in 14 & 15 Vict c 100, s17. The reason for requiring election and the statutory amelioration of such requirement was that while duplicity was a doctrine of form rather than evidence (R v Greenfield (1973) 57 Cr App R 849), the crime specified in the indictment governed the admissibility of evidence. Acts of stealing might involve the taking of a number of items, but might be properly described as one crime. An earlier statutory provision, 14 & 15 Vict c 100, s17, permitted a jury to consider the case as a whole (R v Johnson 7 Cox CC 379). In R v Wright 7 Cox CC 413, a conviction of a bank officer who had been found to be some £3,000 short in his accounts and who had admitted the acts of stealing, was upheld. The court held that it was not necessary that the jury should find any specific amount to have been stolen on any particular day. The problems which arose from the need to particularise the crime and the nature of embezzlement were addressed by the enactment in 24 & 25 Vict c 96, s71, which further provided:
"… for preventing difficulties in the prosecution of offenders in any case of embezzlement, fraudulent application or disposition, it shall be lawful to charge in the indictment and proved against the offender for any number of distinct acts of embezzlement, or of fraudulent application or disposition, not exceeding three, which may have been committed by him against her Majesty or against the same master or employer, within the space of six months from the first to the last of such acts;
And in every such indictment where the offence shall relate to any money or any valuable security it shall be sufficient to allege the embezzlement, or fraudulent application or disposition, to be of money, without specifying any particular coin or valuable security;
And such allegation, so far as regards the description of the property, shall be sustained if the offender shall be proved to have embezzled or fraudulently applied or disposed of any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved;
Or if he shall be proved to have embezzled or fraudulently applied or disposed of any piece of coin or any valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, or to some other person, and such part shall have been returned accordingly. (Former provision, 7 & 8 Geo, 4 c 29, s 48)."
The enactment of 24 & 25 Vict c 96, s71 (which repeated 7 - 8 G4, c 29, s48), was held to permit an indictment for embezzlement supported by proof of a general deficiency of moneys not accounted for without showing any particular sum received (R v Grove 7 C & P 635; see also R v Lambert 2 Cox CC 309).
Objection could be had to the form of indictment on the basis of prejudice in not knowing the specific acts alleged, but that prejudice could be met by adjournment and the provision of particulars (R v Hodgson 3 C & P 442; R v Bookman 5 C & P 300). The requirement that the indictment be limited to a number of acts or occasions was further relaxed by the enactment of the Falsification of Accounts Act 1875, 38 - 39 Vict c 24 (see Archbold 24 edn 658). However, the statutory amendments impacted on the question of whether evidence of the taking of small amounts of money was admissible to show the accumulation of a general sum or to rebut a defence of mistake or accidental recording. It became settled law that such evidence was receivable (R v Richardson 8 Cox CC 448; R v Proud 9 Cox CC 22; R v Stephens 16 Cox CC 387).
The Tasmanian Parliament adopted, in similar but not identical form, the English provisions. Consolidating legislation 27 Vict No 8, s5 (Tas), permitted the insertion of:
"… several counts in the same information against the same person for any number of distinct acts of stealing, not exceeding three, which may have been committed by him against the same person within the space of six months from the first to the last of such acts, and to proceed thereon for all or any of them."
while s6 provided:
"If, upon the trial of any information for Larceny, it shall appear that the property alleged in such information to have been stolen at one time was taken at different times, the prosecutor shall not by reason thereof be required to elect upon which taking he will proceed, unless it shall appear that there were more than three takings, or that more than the space of six months elapsed between the first and the last of such takings; and in either of such last-mentioned cases the prosecutor shall be required to elect to proceed for such number of takings, not exceeding three, as appear to have taken place within the period of six months from the first to the last of such takings."
In R v Smythe and Blanton (1912) 8 Tas LR 28, the Full Court held valid a single information alleging acts of larceny of postal articles occurring over some 10 months. The information was governed by the above provisions, ss5 and 6. In relation to the crime of embezzlement, the Act, 27 Vict No 8, s62, stated:
"For preventing difficulties in the prosecution of offenders in any case of embezzlement, fraudulent application or disposition, hereinbefore mentioned, it shall be lawful to charge in the information and proceed against the offender for any number of distinct acts of embezzlement, or of fraudulent application or disposition, not exceeding three, which may have been committed by him against Her Majesty or against the same master or employer, within the space of Six months from the first to the last of such acts; and in every such information where the offence shall relate to any money or any valuable security it shall be sufficient to allege the embezzlement, or fraudulent application or disposition, to be of money, without specifying any particular coin or valuable security; and such allegation, so far as regards the description of the property, shall be sustained if the offender shall be proved to have embezzled, or fraudulently applied or disposed of any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved, or if he shall be proved to have embezzled, or fraudulently applied or disposed of any piece of coin or any valuable security, or any portion of the value thereof, although such piece of coin or valuable security, may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, or to some other person, and such part shall have been returned accordingly."
and in the event that larceny was established rather than embezzlement ( or vice versa), s63 permitted the jury to return an alternate verdict.
The Act, 27 Vict No 8 was repealed by the Criminal Code and the crime of embezzlement has been subsumed by the Code, PtVI, in particular by ss226 and 234.
Although duplicity in an indictment is a matter of form, rather than evidence (R v Greenfield (supra)), and legislative enactment had made special provision for repeated acts of larceny or embezzlement, the terms of an indictment or information (as to use of both terms, Gow v Davies (1992) 1 Tas R 1 at 57 - 60) continued to govern the relevance of evidence which could be received on the trial of the issue raised by the indictment. It would appear that the Evidence Act 1910, s114, complemented the form of indictment with admissibility of evidence on a trial of larceny or embezzlement by providing:
"114 ¾ (1) On the trial of a person charged with the stealing or embezzlement of money, an entry in any book of account shown to be kept by the accused person, or kept in, under, or subject to his charge or supervision, purporting to be an entry of the receipt of any money, shall be evidence that the money so purporting to have been received was so received by him.
(2) On the trial of a person charged with any such offence, it shall not be necessary to prove the stealing or embezzlement by the accused person of any specific sum of money if, on examination of the books of account or entries kept or made by him, or kept or made in, under, or subject to his charge or supervision, or by any other evidence, there is proof of a general deficiency, and if the jury are satisfied that the accused person was guilty of stealing or embezzlement of the deficient money or any part of it."
The Queensland Parliament did not enact a separate evidentiary provision, but included the equivalent to s114 in the Criminal Code 1899 (Qld), s641.
A charge based on "general deficiency" is one permitted by the Code and the evidentiary problems associated with the previous crime of embezzlement are dealt with by the provisions of the Evidence Act, s114. The Code, s320 (despite amendment to s229) continues to provide:
"In an indictment for obtaining property by a false pretence, or for stealing by a clerk or servant, or person acting in the capacity of a clerk or servant, an averment as to obtaining or stealing money shall be sustained by proof that the accused obtained or converted any coin or bank note, or any part of the value of either, although such coin or note was delivered to him in order that some part of the value thereof should be returned to the person who delivered the same or to some other person, and has been returned accordingly."
The Code permits the presentment of an indictment on the basis of a general allegation in a form similar to that of "general deficiency".
Duplicity and general deficiency
In R v Lawson [1952] 1 All ER 804, Lynskey J held that where it was possible to trace and prove the conversion of individual items of property, it was undesirable to include them in a general count alleging deficiency. It is contended that in the circumstances of this case, it was possible to identify the dates on which particular sums were taken by reference to the licences issued for the holding of bingo events, the dates of banking and the admissions of the appellant that she took the money on a regular basis each Thursday and Sunday. There is a difference between what might be desirable and what is prejudicial (Tomlin v R (1954) 38 Cr App R 82).
The paucity of records rendered it impossible for the prosecution to specify the amounts under-banked on each Friday and Monday. The appellant was not the sole person responsible for the banking of money. Her admissions were as to approximate amounts and given her statement that approximately one half of the money was repaid, it would be impossible to specify whether a greater or lesser sum than her estimated average was taken on a particular occasion. The investigation conducted by the accountant disclosed a general deficiency during the course of a 14 month period. His report did not state that certain amounts (greater or lesser than the average) were taken at particular times. There was little, if any, purpose to be served by requiring the prosecution to conduct a trial by framing an indictment based on the dates of each Thursday and Sunday occurring during the relevant period and alleging an approximate figure (likely to be incorrect if the moneys replaced were taken into account) as admitted by the appellant. Even had such been realistic, there remained the problem of intent. It was not certain from the evidence that the appellant had a requisite intent immediately at the conclusion of each bingo event. She might have not decided to take a particular sum of money until some days after such event. In considering the term "undesirability", regard ought be had to the converse position if each act of taking was specified, an artificial exercise fraught with danger. Evidence that community illness, the vagaries of weather, holidays, acts of banking by the husband, and a general decline in takings during the winter months, would serve to distract the jury from the essence of the Crown case. The jury might be required to consider the occasions on which money was replaced from the gambling winnings of the appellant, although such a reasoning process was irrelevant to the verdict. The jury might have been required to consider particular occasions when it might have been the husband who had stolen a particular sum of money. Again, such a process would have been distracting and irrelevant to the ultimate issue.
No particularity other than that disclosed by the Crown was feasible, and no other option desirable.
Duplicity and prejudice
This was not a case where the making of allegations in general form over a long period of time inhibited the capacity of a person to conduct a defence, nor one where the nature of the indictment permitted the reception of evidence of general conduct or unparticularised acts to the prejudice of the person charged (S v R (1989) 168 CLR 266). This was not a case where the terms of the complaint or indictment inhibited the capacity of the person charged to identify a particular person or occurrence upon which the conviction depended (Johnson v Miller (1937) 59 CLR 467), nor one dependent on the general allegation of conspiracy (Greenfield v R (supra)). Rather, it was akin to a course of conduct such as that involved in the course of supply or trafficking in a prohibited substance (Hamzy v R (1994) 74 A Crim R 341; F v R (1996) 90 A Crim R 356; Deng v R (1996) 91 A Crim R 80; Jacobs v R (1997) 94 A Crim R 15).
In Walsh v Tattersall (1996) 70 ALJR 884, the High Court was concerned with a case involving a person who had dishonestly obtained benefits contrary to the Workers Rehabilitation and Compensation Act 1986 (SA). The relevant charge alleged a course of conduct over a period of 12 months. In a joint judgment, Dawson and Toohey JJ did not accept that the form of the compendious charge produced duplicity. In the opinion of Gaudron and Gummow JJ, the question was not one of duplicity, but whether any charge at all had been alleged in the complaint, and concluded that it had not. In their opinion, they observed at 91:
"… that the … case is to be contrasted with those dealing with an offence defined in terms of a course of conduct or state of affairs …"
Kirby J, in reviewing the history of the procedural rules governing duplex charges, referred to the need for fairness in the sense that an accused person is entitled to know the case to be met and the requirements of the orderly administration of justice that it know what issues have been brought for resolution and the basis on which sanction is to be imposed. He accepted, at 107, that:
"If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible."
and at 109, there existed:
"Exceptions to the general rule against duplicity … where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature[113]; and in other anomalous cases,"
An allegation of stealing of the nature alleged in this case is both one of composite activity and, by reason of history, an anomalous case. In Taylor v R (1996) 6 Tas R 310, this Court was concerned with allegations of fraud involving a course of conduct consisting of 31 acts of deception. Each act of deception involved a representation of status or entitlement at a particular time. In his reasons for judgment, Underwood J applied the reasoning of Kirby J in Walsh v Tattersall (supra) at 323, on the basis that:
"The indictment and the particulars did not plead that there had been a continuous deceitful failure to disclose the true state of affairs. The pleaded case focused on precisely identified false representations, each made with the intention of obtaining the benefit. As pleaded, the case required the jury to decide with respect to each statement, whether it was false at the time it was made."
Wright J believed that the way in which the charges were formulated and the amendment made during the hearing had caused a miscarriage and had led to the improper reception of evidence, stating, at 327 - 328:
"It seems to me that despite having changed the nature and emphasis of the case by obtaining an amendment to the indictment during the trial, the prosecution case was nonetheless presented to the jury, both by the prosecutor himself in his final address, and by the learned trial judge in his summing up, as a case in which the appellant had actually received benefit payments which she would not have received if the true facts had been known to the Department. It is not really surprising that the trial went off the rails in this way because, despite the prosecution attempt to salvage proceedings by reformulating its case as one of economic imperilment, the real complaint was, and always had been, that the appellant had defrauded the revenue of specific identifiable sums of money by her deceitful representations. If she had failed to achieve that result by her conduct, it may well be that she should have been charged with attempting to defraud the Commonwealth rather than actually defrauding the Commonwealth by imperilling its economic interests."
Zeeman J agreed with the reasoning of Underwood J as to the element of deceit, and concluded, at 341:
"In the present case the Crown asserted that the appellant had made thirty-one separate dishonest pretences in various terms but all inconsistent with the true position, namely that she was then cohabiting with her husband, and that each had resulted in a number of payments of benefit being made to her. On the basis of what was said by each of Dawson, Toohey and Kirby JJ, at least thirty-one separate charges of defrauding the Commonwealth were encompassed by the three counts contained in the indictment. That placed the appellant in an impossible position because it diverted attention from the requirement that the Crown prove, as to each statement relied upon, that it was untrue at the time that it was made. I have already mentioned that, had their minds been directed to the relevant question, the jury might have taken a quite different view as to the first two of the statements relied upon than of the other statements."
Nothing stated by this Court in Taylor v R (supra) impacts on this appeal (Hill v R [1999] TASSC 29). Taylor was approved by the New South Wales Court of Criminal Appeal in R v Moussad [1999] NSWCCA 337 as an example of "the importance of the way in which the prosecution frames and conducts its case (Smart AJ at par53), who added, at par55:
"In some of the fraud cases, as part of a systematic and long term defrauding, small sums are taken by overclaims and other dishonest means. Each instance may well involve only a small sum which can be dealt with by a magistrate. Often the frauds continue for some years. The smaller the sum taken, the less likely it is to be investigated and discovered. Despite the arguments to the contrary, if there had been a series of separate counts, whether nine based on the false quarterly fee claims or forty-six based on the false statements. I would not have regarded separate counts as appropriate."
and concluded at par65:
"It is legitimate to conclude that all the acts complained of and set out in the particulars of criminal enterprise formed part of the same criminal enterprise and that they were linked by a common purpose."
It should not be thought that prosecutors can readily prefer a "rolled up" indictment. The principles prohibiting or inhibiting the use of duplex charges, as discussed by Kirby J in Walsh v Tattersall (supra), remain cogent. Those principles require:
(1)notification to the person charged of the precise nature of the crime charged;
(2)identification of discrete acts alleged where such acts give rise to a specific form of criminal responsibility;
(3)precision so as to prevent a charge in the nature of the prosecution case at trial;
(4)definition of the issue before the court or tribunal so that the relevant law might be applied;
(5)definition of the issue so that only relevant and admissible evidence can be adduced on trial;
(6)identification of the verdict of a jury or tribunal in a form which governs the relevant sanction or consequence.
(7)the admixture of allegations of disparate conduct.
In this case, one count only was charged. The particulars stated an amount determined by reference to the evidence available to the prosecution and notified to the appellant. The verdict of the jury carries the necessary implication that the appellant had engaged in a lengthy and consistent course of criminal conduct. Whether, on the basis of recalculation a sum less than $53,000 is determined by the sentencing judge as appropriate or required, is a matter to be considered at the time of sentence. It does not impact on the verdict.
In my opinion, the appeal ought be dismissed.
File No CCA85/1999
SUZANNE TUCK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
8 December 1999
I have had the benefit of reading the Reasons for Judgment prepared by Slicer J and agree that the appeal should be dismissed.
In Walsh v Tattersall (1996) 188 CLR 77, Kirby J drew a distinction between the stringent approach taken to the application of the rule against duplicity in Australia and the less stringent approach that has been taken to the rule by courts in England in recent years. He concluded, at 111, that there should be no relaxation in the strict approach and observed that a tight rein should be kept "upon the prosecution practice of rolling up allegedly connected events and presenting them under one charge". In making that observation, Kirby J recognised that in some circumstances connected events may be the subject of one charge.
In the course of his decision espousing the strict approach to resolving questions of duplicity, Kirby J said, at 109:
"Exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature; and in other anomalous cases."
The anomalous cases to which he referred were R v Lawson [1952] 1 All ER 804 and R v Tomlin (1954) 38 Cr App R 82. In my view these cases come under the rubric of general deficiency cases. In many jurisdictions, statutory recognition has been given to the validity of a charge of stealing which relies on an assertion of a general deficiency based on a number of defalcations or conversions over a period of time. In this State, the relevant statutory provision is the Evidence Act 1910, s114(2) which provides, amongst other things, that on the trial of a person charged with stealing money, it shall not be necessary to prove the stealing of any specific sum of money if there is proof of a general deficiency.
In my opinion, the charge against the appellant was properly based on an allegation of a general deficiency and as such it did not fall foul of the rule against duplicity.
I would dismiss the appeal.
8
1