Walsh v Tattersall

[1996] HCATrans 243

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A22 of 1996

B e t w e e n -

PATRICK BERNARD WALSH

Appellant

and

GEOFF TATTERSALL

Respondent

DAWSON J
TOOHEY J
GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 1996, AT 11.47 AM

Copyright in the High Court of Australia

MR D.J. PEEK:   May it please the Court, I appear with my learned friend, MR M.J. WAYE, for the appellant in this matter.  (instructed by D.P. Waye)

MR D.W. SMITH:  If the Court pleases, I appear with my learned friend, MR D.C. LOVELL, for the respondent.  (instructed by Finlaysons)

DAWSON J:   Yes, Mr Peek.

MR PEEK:   I think the Court has copies of the appellant’s summary and, in this matter, there has been, by agreement between the parties, produced two separate books, one of the cases to be referred to and the other of the legislation to be referred to.

DAWSON J:   We have those, do we?

MR PEEK:   I understand your Honours do have those.If it please the Court, if I could first go to the complaint in this matter, which is at appeal book page 1.

KIRBY J:   Could I just get one factual matter clear at the outset?

MR PEEK:   Yes, certainly.

KIRBY J:   Is it the case that certain of the events that took place and were the subject of the charge were outside the limitation period for the prosecution of offences under section 121, or is that a theoretical possibility?

MR PEEK:   No, your Honour, that is not the case.

KIRBY J:   It is not the case?

MR PEEK:   It is not the case.

KIRBY J:   It was raised during the special leave argument by Justice McHugh and, I think, as a factor to be taken into account in determining whether it would be appropriate to proceed by separate counts.

MR PEEK:   Your Honour, I think that ‑ ‑ ‑

KIRBY J:   But it was not, in fact, a fact in the particular circumstances of this case?

MR PEEK:   No.  It has never being suggested that any portion of the time span was out of time.  I think that Justice McHugh was rather raising the question of a time limit as an illustration of the proposition that these are separate charges, because you have got to delineate when the time runs.  That is as I understood what his Honour was saying.

KIRBY J:   Yes, thank you, that is correct, I think.

TOOHEY J:   Yes, that may be true.  I must say, I read the transcript - and I was not a member of the Court - as suggesting that that question had been raised  But at any rate, you say it is not in issue before us.

MR PEEK:   Well, I certainly did not raise it any stage.  We never put that ‑ ‑ ‑

TOOHEY J:   No, I do not mean raised by you, but raised by the Court in argument.

MR PEEK:   Well, I am sorry, your Honour, if there is any misunderstanding.  Certainly, as I have just put it to Justice Kirby, that is as I understood what Justice McHugh was doing, using it as an illustration.

TOOHEY J:   While we are preventing you from getting under way, Mr Peek, could I just ask you, is there any provision in relevant South Australian legislation that deals with offences of a continuing nature?  I mean, there are, I think, in some of the criminal codes.

MR PEEK:   No.  I have given the Court a reference and, indeed, it is reproduced, to the relevant sections in the Summary Procedure Act and those are the only sections that are relevant.  There is no section that addresses a question of continuing offences.

TOOHEY J:   But it is not all that uncommon, or is it, to charge a person with stealing over a period of time, involving various amounts?  Perhaps I should not say “involving various amounts”; involving a totality, as it were.

MR PEEK:   Yes.  You are getting into the area, if I can say, of perhaps a general deficiency type of case, which I do touch upon in my outline, and that it is an area that is governed by particular rules and perhaps the exception rather than the rule in relation ‑ ‑ ‑

TOOHEY J:   All right.  For my part, I will not hold you up any longer.

MR PEEK:   I will come to that anyway, your Honour.  But in relation to the complaint, the Court can see that of course there were, in fact, some five counts but the appellant was acquitted of counts 2 to 5 inclusive and, hence, were only concerned with count 1, which appears at page 1 of the appeal book.

TOOHEY J:   Was he acquitted of count 5?

MR PEEK:   Well, either that or it was withdrawn on a submission, I am not sure; but certainly the only adverse finding was in relation to count 1.  Perhaps it was withdrawn by the prosecution after certain submissions but - dismissed, if I can use that neutral term.

KIRBY J:   My final question on the preliminaries is, is Justice Perry’s judgment which is referred to available to us?  Is that reported now or not?

MR PEEK:   Your Honour, that is reported and it is in the book - the composite book, which is, in fact, before you, yes.  That is Weinel v Fedcheshen, your Honour is referring to, yes.  The complaint then spanned a year in time, between October 1992 and October 1993, and what is involved is quite obvious; that during that time payments every fortnight were paid to the appellant of income maintenance.  What has occurred is that all of those payments between those dates have been lumped together and come to that figure of $21,891-odd.  Above and beyond that, from time over that same period, various payments of medical, rehabilitation and like expenses were made which, when added up, came to $6789-odd.

Now, the Court notices that the count runs from October 1992 to October 1993 and, just to set the scene factually before I go straight into the outline, it will be noticed that the appellant was interviewed by a police officer in June 1993, so, well before that time span had finished, and that interview was P21 at trial.  It is not reproduced, but the relevant - the first two pages are all that your Honours require, and that is before you, and I wonder if the Court can just briefly look at that.  That has been handed up this morning.  Really, I do not propose to read it, but it is simply to set the date which your Honours can see at the top there, 27 June 1993, and that the officer put to the appellant, at page 2, that he was going to be charged with some 30 counts of obtaining a benefit by dishonest means under section 120:

You’re going to be charged, right -

question 10 - and “you will be charged,” et cetera.  Now, that is the only relevance of that.  Then the appellant was seen by a doctor appointed by the respondent - the prosecution - a Dr Cotton, and if I can take the Court to the appeal book, page 52, that is where Dr Cotton’s report, in consequence of that consultation, commences.  Now, I do not read all of that, of course, but can I just go to the conclusion at page 57, where Dr Cotton says, between lines 10 and 15, that in his view there is nothing:

which would prevent him from returning to his clerical duties, if they be available.

And then importantly, at line 15:

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

He is quite clearly of this view himself and, over-all -

and he goes on from there.

TOOHEY J:   To what ground of appeal is this relevant, Mr Peek?

MR PEEK:   Your Honour, this goes fairly and squarely to the duplicity matter, because the Court will see that this consultation, as indeed is the certificate on the very next page, page 58, occurs in July 1993, well within that time span, well before October 1993.  Yet, after this, fortnightly payments are continued to be made and the appellant is charged, at the end of the day, with a lump sum inclusive of those payments.

DAWSON J:   The point being that even if there was no duplicity, if the appellant had remained in the same state throughout the period concerned when the payments were made, when his medical condition changed, that is, his suitability for employment changed within the period, there is duplicity because it is different circumstances applying to different payments.

MR PEEK:   Yes, it is a way that I can strikingly, as it were, demonstrate very quickly an aspect of duplicity.

GAUDRON J:   But that depends, does it not, on a change having occurred?  It does not go to anything if - he was never, at any stage in this period, unfit for work.

DAWSON J:   Which is the view the magistrate, if I may add, adopted, is it not?

MR PEEK:   Yes.  But what I am saying, if it please the Court, is that as at the interview in June, it plainly is the position of the prosecution that this man is going to be charged in relation to the previous obtainings; and yet, what transpires is that payments continued to be made.  So, it really cannot be said thereafter that they are in any way being paid on the pretence of the appellant.  Then, of course, one gets to July ‑ ‑ ‑

KIRBY J:   But can I ask you:  can you answer Justice Gaudron’s question by reference to an earlier medical report that demonstrates that at an earlier time he was asserting that he was not fit for work?

MR PEEK:   No, your Honour, I was referring to that interview with the police in June, the two pages ‑ ‑ ‑

KIRBY J:   I know you are, but her Honour pointed out that 57 may not say much if, right throughout the whole period of a year, he was saying the same thing:  no indications, no complaint.

MR PEEK:    You see, what we are saying is that it was a complicated matter factually and ‑ ‑ ‑

KIRBY J:   This is a complication that has occurred to you since the trial because I think it is common ground, is it not, that you did not take a point on the counts at the trial.

MR PEEK:   On the duplicity aspect?  No, that is quite right, your Honour.  But in relation to the factual matter, it was a situation where there is a great deal of negotiation as to this man’s placement in the overall industrial scene, because what had to be taken into account was a certain amount of antipathy that had arisen mutually concerning these allegations of which he was subsequently acquitted of misappropriating money at work.  So, accordingly, what happened is that certificates by doctors were given up to a point but not thereafter and he, the appellant, was then in the hands of certain representatives of the hospital as to his placement.

Now, he, from time to time, was saying, “I want to go back to work.  I am fit to go back to work”, and so forth, and there is a certain amount of equivocality, I agree.  But what I am putting to the Court at this moment is that one can be quite plain that at the very latest, by the time that he saw Dr Cotton, he was saying, “Look, I am fit to go back to work.  I want to go back work.”  As Dr Cotton says, and reiterates in his certificate at page 58:

He is now relatively asymptomatic and has felt quite capable of returning to work for some months.

TOOHEY J:   I am still having difficulty with seeing quite how this fits in to the duplicity argument.

MR PEEK:   It is simply this, that one can see that one is charging this man under the umbrella of one count with obtainings before the interview with the police, at which time it was made manifest that he was going to be charged and, indeed, right up to the interview with Dr Cotton, and still beyond that, despite all of those matters.  What we submit is that you do not have the concurrence of actus reus and mens rea at the latest when it is shown that the prosecution have already determined to charge this man and, as I say, when Dr Cotton is confirming that the man is saying to him, “I want to go back to work.”

TOOHEY J:   What, even if the Crown can make good the case that up to that date there were false statements - or money was obtained by dishonest means, falling short of the totality that is set out in the complaint?

MR PEEK:   I do submit that because my submission is that once it appears, or it is alleged that the appellant has received, say, a fortnightly payment, then an offence has occurred and the time limit, indeed, runs from that point.  It then behoves the prosecution to charge in relation to that matter and, if there are different matters of obtaining, then there should be a count in relation to each such obtaining.

TOOHEY J:   I understand that but that seems to me to be a somewhat different proposition to the one that depends upon the medical certificate.

MR PEEK:   It is slightly different, I agree, but, in my submission, the scenario, as it were, gives point, if I can put it that way, to the importance of the duplicity point because it certainly would seem surprising if the prosecution can, as it were, determine basically how much is going to be the composite sum at the end of the day under this count simply by the expedient of determining when they will lay a charge, in other words, what I am saying is that if charges had been laid at the time of the interview, then the overall apparent seriousness of criminal offending, if proven, would have been far less, and that that, of course, would flow from a strict application of the rule against duplicity by the charging of individual counts in relation to individual obtainings.

TOOHEY J:   That assumes that he could not obtain by dishonest means, or that he did not obtain by dishonest means, payment or benefits under the Act after that time.

MR PEEK:   It is my submission that - you mean after the time of the Dr Cotton report?

TOOHEY J:   Yes.  I am not sure what the foundation was for the magistrate being satisfied that moneys were obtained by dishonest means.  But your argument involves, and it may turn out to be correct, that he did not obtain money by dishonest means once he recognised, himself, that he was fit to go back to work.

MR PEEK:   Your Honour, I think what I am really putting is this; that the magistrate was faced with a long period of time, and a composite sum, and a deal of evidence which was led to demonstrate dishonesty and so forth, and he found against the appellant.  But if the matter had been broken up, as we submit it should have been, into separate counts in relation to separate obtainings, then the matter would be brought into much more stark relief, because, for example, if you are looking at an alleged obtaining post the interview with the police, or post Dr Cotton, the question that immediately arises is, “Well, the actus reus might be the receipt of the cheque, but where is the concurrent mens rea in relation to that particular obtaining?”, and it would then be seen that the general evidence of dishonesty, or whatever you wish to label it, really tells us very little about that, and that is why I say that brings into focus the real evil, if I can say so, of duplicity.

DAWSON J:   But why as to an evil?  I mean, the magistrate, if he had felt some doubt - no doubt this was put to him, that not all payments were on the same footing, if he felt any doubt about that he could have allowed an amendment to the information to avoid the duplicity  But in the circumstances, as he found them, there was no duplicity, and it is said that whether there is duplicity or not is a practical matter.

MR PEEK:   Yes.  The situation about the course of the trial is referred to in an affidavit of the solicitor who conducted the trial, which is at page 96 of the appeal book.

KIRBY J:   This was before the Full Court, was it?

MR PEEK:   It was, indeed, your Honour.  Without reading all of that, it recites, at paragraph 3 that he was instructed to brief counsel after the conviction.  He was subsequently asked why no objection had been taken at trial on the ground of duplicity.

TOOHEY J:   But that does not answer Justice Dawson’s question, does it?  Let us assume that the matter was raised before the magistrate; would it not have been open to the prosecution to move for an amendment of the count?

MR PEEK:   It would have been a very drastic amendment, if it could be termed an amendment.

TOOHEY J:   May be.

DAWSON J:   Not really, it just breaks it up.  You see, if a man goes into a department store and in the same department thieves a certain number of items, one count of theft is perfectly permissible.  But, of course, if there are circumstances which do apply to each actual taking of an article which are different, then it may be necessary to break the count up.  But it is not approached in any theoretical way, it is a practical matter.

MR PEEK:   I will certainly come to that, and that is the question of the Merriman principle and just how far that applies, I suppose.  But we submit that when you have got a time span of a year, and many individual obtainings during that time, then that factual situation is outside the scenario that your Honour Justice Dawson puts to me.  That is the basic submission that we advance.  The fact of the matter is, as deposed to in the affidavit at page 97, that the solicitor at trial simply did not turn his mind to or address this question of duplicity, and the matter of its being admitted in the Full Court is referred to at the following page, page 98 of the appeal book.  I do not pause to read that, but that is where it was admitted before the Full Court.  If I can go, then, to the outline ‑ ‑ ‑

GUMMOW J:   Is there any decision of this Court applying Merriman?  I mean, post-Merriman, obviously.  One knows there are pre-Merriman cases.

MR PEEK:   Well, I do not think so, your Honour.  Obviously one always has to be cautious - unless something came down last Friday, as it did the previous appeal, but not to my knowledge.  Now, if I can take the Court to section 120 of the legislation, and that is at page 1 of the small bound book of legislation.

GUMMOW J:   Is this is the right form at the right time?

MR PEEK:   Yes, your Honour.

GUMMOW J:   There has been a number of changes.

MR PEEK:   Yes, indeed.  Now:

120. (1) A person who

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

and then (b) and (c), different offences, obviously.  Then an aiding and abetting provision which fastens upon “the commission of an offence.” 

Now, we submit that the primary approach to such legislation should be that where a particular offence is created and delineated, then it should not be viewed, for example, as a continuing offence but should be viewed as a specific offence which is completed on the obtaining of the payment or the benefit.  Section 122, in its present form, you can see a little bit further down that same page - it is actually under section 46 of the amending provision - but that is as how it was at the relevant time:

(3a)  A prosecution for ran offence against this Act must be commenced within three years after the date on which the offence is alleged to have been committed.

Now, we submit that for such a time limit provision to operate - and it is to be remember that that is significantly greater than the usual six month time limit under our Summary Procedure Act - for this three-year time limit to operate, it must fix upon a known and ascertainable date and we say that date is when the actual payment, the particular payment, is received.  Were it not so, and you could simply charge a continuing offence of unknown duration, which, as I have already said, can be brought to an end at the discretion of the prosecution by deciding when they will charge, does create a good deal of difficulty in relation to a computation of a time limit.

TOOHEY J:   It may do or the defence may do what is often done in these cases, ask for particulars; ask the Crown to be specific and then, in relation to those payments that are outside the time limit, if that be the case, seek to have those struck out.

MR PEEK:   I appreciate that, your Honour, but it is my submission that that rather predicates a base assumption that there are separate offences and separate obtainings by which route you can decide which are within and which are without a particular time limit and make the application to which your Honour refers me.  In any event, we submit that all of the indications go towards the type of specific offence for which we contend, and none go towards ‑ ‑ ‑

KIRBY J:   I suppose you could say there are three points in your favour in that:  first of all, the periodicity of payments under the Act; secondly, the words in the section mean any payment; and, thirdly, that by section 122 there is a time limit which predicates particular payments.

MR PEEK:   Yes, that is what I do say and, really, no consideration going to the opposite direction.

GAUDRON J:   But you, nonetheless, would have no difficulty with the concept of continuing dishonesty, that is to say, by not withdrawing an earlier dishonest statement.

MR PEEK:   As I submit, your Honour, there is that difficulty, because, I mean, here is this man saying, for example, to Dr Cotton ‑ ‑ ‑

GAUDRON J:   Yes.  Leave aside the facts of this case, it would seem, though, for you to adopt that analysis of section 120(1)(b), you have almost got to adopt the notion that the dishonesty can consist of failure to withdraw a previous dishonest statement, so that, in that sense, there is continuing dishonesty.

MR PEEK:   That is what the prosecution have to put forward, I suppose.  But we would submit that one has to look at each particular obtaining and ask the question, “What is the alleged dishonesty here?”, the positive dishonesty that is alleged against the accused, and where one goes from there depends on the facts of the particular case, I suppose.  But we submit that in this particular case, having looked at the complaint, it is a case of patent duplicity, and that the rule is very clear in relation to a case of patent duplicity; be it disjunctive or conjunctive.

I wonder if I can take the Court briefly to the case of Iannella v French because, of course, that case did address certain provisions of the South Australian legislation which, albeit they have changed somewhat, are still quite relevant to consider.  Now, that is in the large compilation book, commencing at 130 of that book, and I simply give the page references to Justices Taylor, Windeyer and Owen, and do not propose to read from their judgments.  However, each of their Honours found that the count was bad for duplicity.  But can I take the Court to the judgment of Chief Justice Barwick at page 89, or 132 of the book’s pagination?             It is about two-thirds of the way down that his Honour turns to the question and says in the new paragraph:

I have had the advantage of reading the reasons for judgment prepared by my brother Taylor.  I respectfully agree with his conclusion that the convictions entered by the Supreme Court cannot stand because of their obvious duplicity.

His Honour then goes to section 51 of the then Justices Act, which talks about joinder of a number of counts, similar to the Lord Jervis legislation, and there is still very similar legislation in force here.  There is no ‑ ‑ ‑

KIRBY J:   Do we have that, because that might be an answer to Justice Toohey’s opening question, give us some clue as to how it is to be done in this State?  Do we have the Justices Act provision that was in force?

MR PEEK:   You have the Summary Procedure Act provisions which have superseded those provisions.

KIRBY J:   Very well, thank you.

MR PEEK:   They are in the small legislation‑ ‑ ‑

KIRBY J:   Yes, I see that, thank you very much.

GUMMOW J:   That is section 51, is it?

MR PEEK:   Section 51 is at page 5 of the small book, and one can compare that to its predecessor, section 51 of the Justices Act as reproduced by Chief Justice Barwick.  For present purposes, in my submission, there is no relevant difference.  In other words, section 51 has always addressed the question, when can you join a number of counts on a complaint, thus abolishing the previous requirement, as it was in South Australia, that there could only be one count on a complaint, as was often the case in other jurisdictions as well.

So that his Honour, at the bottom them of page 89 of Iannella reproduces section 51, as it then was, and then, at page 90, said:

Apparently the informant in this case relied upon this section in two respects:  first, the complaint contained five counts treating the payment of the rent by the tenant on each of the days charged, not only as having been made on the demand of the applicant but as having in each case arisen out of the same set of circumstances within.....51(1):  in the second place, it treated the two offences in each count as alternatives and as also having arisen out of the same circumstances.  We are not presently concerned with the validity of the complaint but it should not be taken from anything said in this judgment that I hold the opinion that the course taken in the complaint was in any of the above respects regular and authorized by the Justices Act, that is to say, by s. 51 or by s. 55 which allows a complaint to describe an offence in the term of the statute creating it.  Suffice it to say that, in my opinion, those sections of the Justices Act do not authorize a conviction in the terms in which the primary judge in the Supreme Court entered them in this case, that is to say, in the alternative.

That, of course, was a case of disjunctive duplicity but, obviously, the Court’s comment applied, indeed a fortiori I would submit, to conjunctive duplicity. 

Now, his Honour then reproduces section 70a of what was then the Justices Act and that provision is now exactly the same in the Summary Procedure Act.  You do not have that in front of you but, in fact, the text is exactly the same as there reproduced by ‑ ‑ ‑

GUMMOW J:   What section is it?

MR PEEK:   Section 70a and 70, as referred to by Chief Justice Barwick at page 90 of Iannella.

GUMMOW J:   Yes, but the same numbers in the present ‑ ‑ ‑

MR PEEK:   Sorry, your Honour, same numbers, but now called the Summary Procedure Act.  I am sorry.

KIRBY J:   And it is little a, not big A, is it?

MR PEEK:   Yes, your Honour, quite right.

KIRBY J:   It must be a peculiarity of this State.

MR PEEK:   Yes, indeed.  I think still a little a in the Summary Procedure Act, but I stand to be corrected on that.  But what that provision did, and still does, is set out there, namely:

Where charges for more than one offence have been joined in the same complaint -

and then the next words are important:

pursuant to this Act -

now, that, of course, refers back to the joinder provision, which we have already examined - then certain consequences can flow, and section 70 is addressed to the same thing.  Now, his Honour Chief Justice Barwick, then said, four lines from the bottom of page 90:

Section 70a does no more than allow the conviction for more than one offence upon a complaint which is not limited to the complaint of one matter and permit the inclusion of convictions for more than one offence in the one minute.

But the section does not authorize the entry of a conviction in the alternative nor displace the fundamental rule that the conviction itself shall not be double.

And his Honour then goes on back to the facts of that particular case.  But it is those concluding lines I have just read which are important and, indeed, directly apply, in my submission, to the present situation.

TOOHEY J:   In what way do they directly apply?  Before you answer, let me just put this to you:  if the Crown had alleged an offence in respect of each payment as a separate count, those counts could have been joined, apparently, under the Summary Procedure Act, no problem of duplicity would have arisen, would it?

MR PEEK:   No, your Honour, they could have been joined under that provision.

TOOHEY J:     That was not done but, in a sense, a blanket charge was laid against the appellant.  Now, what then does Iannella v French have to say about that situation?

MR PEEK:   The fact of the matter was that a regular charge, I suppose, could have been laid in Iannella’s Case as well and, both there and here, we are faced at the end of the day with the fact that an irregular charge was laid and a conviction was recorded in the terms of charge.  So, my submission is simply that the application of Iannella means that there is a fundamental rule against duplicity which applies to the South Australian Summary Procedure Act, whose provisions are not relevantly different to those of the the Justices Act there under consideration.  Accordingly, no matter what might have been done regularly, the fact of the matter is this was not done regularly and the conviction cannot stand.

TOOHEY J:   It may be not only what might have been done regularly but what defects might have been cured during the currency of the proceedings had the point arisen.  In that respect, perhaps section 181 of the Summary Procedure Act, which is in your volume ‑ ‑ ‑

MR PEEK:   It is.

TOOHEY J:    ‑ ‑ ‑ has something to say.

MR PEEK:   Going to that, it is, of course, not in the form that one sometimes encounters which says that “no objection may be made” et cetera.  It is a more mild form, if I can look at it in that way.  In my submission, the correct construction is this; that an information or complaint is not invalid in the sense of being a nullity in depriving the court of jurisdiction because of a defect of substance or of form, but it proceeds on the assumption that such problems must be cured in due course.  So that the court, in order to do that, may amend an information or complaint to:

cure a defect of substance or form -

unless, using the words:

(but if the defendant has been substantially prejudiced by the defect, no amendment may be made)

Obviously that is proceeding on the assumption that one takes into account in a given case the question of prejudice at that stage; that for the prosecution to move forward or succeed, an amendment may need to be made but, in a particular case, an amendment should not or may not be made if there is substantial prejudice.  Than the section goes on:

or

(b) dismiss an information or complaint if the defect cannot appropriately be cured by amendment.

So that my submission is that what that section is saying is that if a court is faced with a charge that displays patent duplicity, then it must appropriately cure such a problem, either by an amendment - but it must not do that if, to allow an amendment would be to substantially prejudice the defendant, and, if that leads to no amendment being made, well then, that leads to dismissal.

So, it is a fairly harsh provision from the point of view of the prosecution; much more so than one finds in other comparable legislation and, indeed, harsher towards the prosecution than existed at the time of Ianella v French, for example.  So that it is my submission that really what is to occur is that, certainly, there is a responsibility on defence counsel, but your Honours have an affidavit about that.  There is equally a responsibility

on prosecution counsel to draw such a matter to a magistrate’s attention or, indeed, for the magistrate to notice it himself.  I think, in a case that I was going to come to with a brief reference only, later, of Byrne v Baker, can I just take the Court to that case, and an extract reproduced therein at 238 of the booklet of cases.  The extract I am referring to is that from Edwards v Jones, which is applied by the Full Court in Byrne v Baker.  Can I take the Court down to line 35 on that page 238, and Lord Goddard, who was presiding in Edwards v Jones, said:

“In the Summary Jurisdiction Act, 1848, it is laid down that an information shall be for one offence only.  There is also a provision in the same Act that no objection as to substance or form is to prevail, but that does not mean that the justices can, where a statute provides than an information shall be for one offence only, proceed to hear an information which charges two offences at the same time.  If magistrates find an information preferred which contains two offences and not one, they should take steps to see that it is amended.  The way that they should do it ‑ the authorities bear this out ‑ is by saying to the prosecutor ‘On which offence do you elect to proceed?’  The prosecutor can then say: ‘I will elect to proceed upon offence A’.  Thereupon the information should be amended by striking out the second offence charged, so that the defendant is only called upon to answer to the one offence.  On the other hand, if the prosecutor says: ‘I decline to elect’, then the information is bad.  No conviction could take place upon it, because any such conviction would be bad for duplicity.  Therefore magistrates in those circumstances should say: ‘If you will not elect we dismiss the information because it is bad’.....There is no ground for saying that if an information discloses two offences the magistrates can hear the two offences together and then say: ‘We will convict on one’.  That would be giving the go‑by to the provisions of s. 10 of the Act, which makes it clear that in a magistrates’ court a defendant can only be called upon to answer one charge at a time.”

Now, obviously, in this case charges can be joined, but those remarks, of course, apply, in our submission, directly to the situation where there is duplicity within the one count and, we say, with every bit of the same force.  So, the fact of the matter is that we are faced with a situation where, we submit, it is patently bad for duplicity and the conviction follows that form.  We submit that that leads to such conviction ‑ ‑ ‑

DAWSON J:   You say “patently”; why is it patent?

MR PEEK:   Because, on the face of the complaint, it does depose to the receipt of a number of payments of income maintenance which ‑ ‑ ‑

DAWSON J:   It does not.  It refers to the receipt of a sum of money.

MR PEEK:   Your Honour, it was quite clear that under the legislation what is being charged is the weekly benefits.

DAWSON J:   That is the evidence which establishes the sum of money.

MR PEEK:   Yes, but that is the legislative setting against which the charge is made.  In other words, when one reads what the charge is, one knows that it is referring to what the statute is, and that what is being charged against this man, as everyone appreciated, was a number of different receipts ‑ ‑ ‑

DAWSON J:   Resulting in the receipt, in the end, of a sum of money.

MR PEEK:   A number of receipts being received from time to time, and if one totals that up to the point at which the prosecution stops ‑ ‑ ‑

DAWSON J:   They did, and they said, “That is the sum of money you received dishonestly”.

MR PEEK:   That is the sum of money, yes.  And, not only that, but also, of course, various amounts of payments of medical expenses and so forth, which of itself totalled a different sum.  So that, one has two different totals within the one count.

DAWSON J:   I am only questioning the duplicity is patent.

MR PEEK:   In my submission, it is, in the sense that if one looks at that count, against the statutory background, that one sees that a number of different obtainings are charged.  In other words, I am simply concerned ‑ ‑ ‑

DAWSON J:   I was putting to you that a number of different obtainings does not necessarily mean that you have to have more than one count.  You can have a number of different obtainings and charge one count of theft in relation to those articles.  As Justice Toohey put to you, you can say what the count relates to by way of particulars.

MR PEEK:   That, of course, is the base question, obviously.

DAWSON J:   Well, that is what we are addressing.

MR PEEK:   Yes.

DAWSON J:   And I am willing to be convinced but at the moment, obviously, I am not

MR PEEK:   I understand that, your Honour, but what I am ‑ ‑ ‑

GAUDRON J:   I suppose one problem that might arise if you accepted that some part of the money had been obtained dishonestly but the other had not, what would then be done?

MR PEEK:   That is exactly right.

GAUDRON J:   Or, what would happen if the prosecution were able to prove only part of it?

MR PEEK:   Yes.

DAWSON J:   Well then, you may have to amend ‑ ‑ ‑

KIRBY J:   One can normally rely on counsel or somebody representing the accused to take the point if it leads to any injustice to them, but you did not do so in this case.  Is that not a ‑ ‑ ‑

TOOHEY J:   That must happen quite a lot in stealing charges where ‑ ‑ ‑

KIRBY J:   Is that not a better principle, that the court system can look to the accused to take the point if there is any chance, or risk, so long as the accused is represented?   I think there is some authority against that, that you refer to in your submissions, but it seems a practical principle, and one of the judges - I think it was Lord Diplock - said that you have to approach this not in the theoretical way but as a practical question.

MR PEEK:   It is my submission that that is something of a dangerous principle in these days of looming further cuts to legal aid budgets and so forth.  In other words, the question of representation and the degree to which one can be confident that there will be representation, and the level of representation, are imponderables.  So that, it is my submission that better that there be a known principle, which will apply across the board, rather than leaving it to the individual circumstances of a particular case.

KIRBY J:   May that not lead to the problem that when the man or woman goes into a store and takes a garment here, and a toaster there, and a wig somewhere else, then you have got to charge each one separately and individually when it is all really part of the pattern; there is no real dispute about it.

MR PEEK:   The principle for which we contend, if it please the Court, is at 6.1 in relation to that, that cases such as Merriman and the cases to which your Honour is alluding should be interpreted as demonstrating no more that cases involving multiple acts so close in time, space and type, that it would be a nonsense to say that they did not constitute one continuous activity.  If one can characterise a situation in that way, then the rule against duplicity may not be infringed.  So,in other words ‑ ‑ ‑

KIRBY J:   What can be more continuous than taking the same cheque at the end of each week or fortnight?

MR PEEK:   It is my submission that that is something that is extending over a long period of time.  I rather have in mind more the factually situation which being put to me and that is, a particular day, in a department store or, indeed, in a house, in which a person goes from room to room, the burglar, and steals a number of goods.  Now, I, of course, immediately say that, “Yes, that can be charged in one count, but for this reason:  that the acts are so close in time and place and type that it would be a nonsense to say that it was not a continuous activity”.  But that when one goes from there to a period of a year and, also, from the policy point of view, remembers that when one is dealing with questions of state of health and mind, one may well be encountering situations of fluctuations over a lengthy period of time.

GAUDRON J:   But the case against you was not really one of fluctuations, was it?  The case against you was one initial false statement which was never retracted.

MR PEEK:   It was various statements to doctors from which that is inferred, if I can put it that way.

KIRBY J:   Not only doctors; there was, I think, a legal practitioner and there were colleagues and others to whom it was said that your client had specifically asserted that he was “pulling the wool over the eyes of the shrinks”.

MR PEEK:   Sure, I understand that, but that, nevertheless, as time goes on, and remembering that the genesis of this problem was, of course, a very real matter, namely that the appellant came back from leave, was summoned unceremoniously by police officers and put in a room for quite some time, and interviewed ‑ ‑ ‑

DAWSON J:   But that is going to the facts and that was found against you.  What happened was that the magistrate found that initially, when you claimed these payments you claimed them on a dishonest basis, and the payments continued on that same basis even though the facts may have fluctuated in the meantime, and it was that basis which was dishonest and that is what provided the material for the offence.

MR PEEK:   It is my submission that it is a question of the form of the charge, more than the evidence really, and that as cases such as Greenfield ‑ and perhaps I can go to that.  It is referred to at the bottom of page 1 of the outline, Greenfield v The Queen ‑ ‑ ‑

DAWSON J:   But, at the bottom of this ‑ before we go to that:  the real point about duplicity is that it does not enable, if a count is duplicitous, the defendant to know what he has to meet.  Now, that is not the case here.  The defendant knew exactly what he had to meet and if he felt he wanted to differentiate he could, as Justice Toohey has said, asked for particulars and that would have met his needs.  It is not a case in which he was put at a disadvantage by the information, or whatever it was, being in the form in which it was. 

MR PEEK:   It is my submission that duplicity is very much a matter of form, and ‑ ‑ ‑

DAWSON J:   It it is not, it is a matter of practicality and what it goes to is injustice, and that is as I have just put it.

MR PEEK:   Your Honour, I understand that but my submission is that duplicity has a long history and that, historically speaking, an objection in relation to duplicity has been resolved by a reference to an analysis of a particular count and whether it is duplicitous, be it disjunctive or conjunctive, as distinct from whether that may or has led to some prejudice.

DAWSON J:   Precisely, and what is put to you here is:  your client dishonestly claimed payments and he continued to claim payments on the basis of the first dishonest claim and, for that reason, there is no injustice to your client in saying that at the end, “These are the payments he claimed on that basis”, as a lump sum.

MR PEEK:   But, you see, at some indeterminate point in that year, one really asks, in my submission, “Is he still putting forward any dishonest assertion that ‘I am unfit for work’?”, when we know that Dr Cotton, for example ‑ ‑ ‑

DAWSON J:   It was the original assertion which was the dishonest assertion, and that continues.

MR PEEK:   Well, it continues until such time as the appellant withdraws it or says, “I am not suggesting that I’m unfit for work”, for example ‑ ‑ ‑

DAWSON J:   No, no, it continues until he ceases to claim, and he did not.

MR PEEK:   But, your Honour, it is not situation where he is putting in a claim each time ‑ ‑ ‑

DAWSON J:   No, he just takes the cheque, and that emphasises the point that it is on the basis of the original claim.

MR PEEK:   Yes, your Honour, that is true, but it is my submission that point is given to the duplicity objection when I submit that when one gets beyond police interview and, indeed, beyond Cotton, it is difficult to see at that stage what is the concurrent mens rea with that actus reus that you put to me.  He gets the cheque, but ‑ ‑ ‑

DAWSON J:   The mens rea is the mens rea which accompanied the original dishonest act.

MR PEEK:   I simply put to the contrary, if it please, your Honour, that one does have to have, in this particular type of situation, a delineation into separate offences for that very reason.  At the end of the day, in ascertaining the gravity of criminal conduct, this question of whether mens rea does accompany each receipt, or some only, is an important one, and that the logical way in which that can be resolved is to charge separate counts.

DAWSON J:   But your client, on one view of it, set out on a course of obtaining money from the department, or from his employer, upon the basis of a dishonest representation and he continued to receive those payments.

MR PEEK:   Irrespective of that, and I know that does look black for my client, my submission is that nevertheless these convictions are fatally flawed and must be set aside, irrespective of the facts which your Honour puts to me and which I understand.

KIRBY J:   I think, on the special leave application, you got some support and I think it was from Justice McHugh, saying that the case was not one which on its own facts dripped with merit but that the issue of principle which was involved was the issue of proper practice by prosecutors and that it ought not to be left to the accused to take objections and to raise contentions, because the accused would be variously represented, but it ought to be a matter of the Court laying down where it is a separate and complete offence, a principle for the proper practice of prosecutors and that that was what attracted the special leave to you.

MR PEEK:   Yes, well, that is the position I put, your Honour.

KIRBY J:   And I think there is some authority that says that the mere fact that you do not take the point at the trial is not fatal to you and you could take it on appeal

MR PEEK:   Yes, there are ‑ certainly ‑ ‑ ‑

KIRBY J:   I think that was the House of Lords.

DAWSON J:   That is true, but that is where it is duplicitous and ‑ what is being put to you, I think, and you must answer it, is that, at most, this was a case for particulars and that would have solved the problem but no particulars were sought.

MR PEEK:   Your Honour,  I appreciate what your Honour is putting to me but my position is really this, that this one count is duplicitous, for the reasons I have attempted to put forward, in that within it there are a number of separate offences and therefore it is not a matter of particulars but is a matter of invalidity.

DAWSON J:   Well now, you have got a number of authorities there.  What is the best authority you can find to support that proposition?

MR PEEK:   If I can go to that case of Greenfield, perhaps, at the bottom of page 1 of the outline, which is at page 147 of the book of cases, and if I can simply take the Court to page 150.  At about point 5 on page 150, the Court of Appeal say, in referring to the trial judge’s task:

We mention this incident because judges may be in doubt as to what they should consider before deciding whether a conspiracy count is bad for duplicity.

GUMMOW J:    There is a discussion of the importance of particulars, is there not?

MR PEEK:   The court goes on to say that you look at count:

In most cases it will be unnecessary to look at any other material.  If particulars of the count have been requested and given, these too should be considered.

That is at about point 5 on that page, if it please, your Honour.

KIRBY J:   I suppose you would advance the point that it is important for the court to distinguish between a civil case where particularisation can clarify matters, and a criminal case, where it is an accusatorial procedure and the prosecution has got to get its pleading and its compliance with the law clear from the beginning.  You could have sought particulars, and you could have, under Johnson v Miller, got them, and that would have cured the problem in this case but you did not.  It still leaves the problem that the count, at least on its face, could be a bit confusing.  No one suggested at the trial that it was but you say the principle has been offended.

MR PEEK:   Yes, and I simply draw ‑ ‑ ‑

KIRBY J:   What is wrong with the practical approach that the Court is putting to you, that the principle is, itself, subject to the practicalities of the trial system and that if you do not take the point, then it must be assumed that there is no real injustice, no real problem or uncertainty?

MR PEEK:   It is my submission that in the area of summary procedure, the question is not simply whether there has been a miscarriage or whether something of that nature has occurred, but whether this is a good count and whether it is a proper conviction, and that that, of itself, founds a complaint that proceedings are fundamentally flawed, irrespective and standing quite apart from any question of miscarriage or injustice or prejudice.

TOOHEY J:   Was this question of the non-request for particular investigated on the special leave application?

MR PEEK:   I do not believe so.  If I could just finish with that case of Greenfield.  The last paragraph on that page 855, the court emphasises that:

Duplicity in a count is a matter of form; it is not a matter relating to the evidence called in support of the count.

And the court then illustrates that by referring to several cases of conspiracy, referring to West, and saying that:

the reference in the conspiracy count to the Defence (General) Regulations should have alerted the trial court to the fact that during the period of the alleged conspiracy the Regulations which the accused were said to have conspired to infringe had changed from time to time. They could not be said to have conspired together to infringe Regulations which had not been issued; but during the period specified in the count they could have conspired ‑

et cetera.  Now, the point there is that in West, as in similar cases, where you had a conspiracy count extending over a period of time ‑ ‑ ‑

KIRBY J:   Why are we going to this foreign authority when there is so much Australian authority on these points?  Is this foreign case your best case, is it?

MR PEEK:   Well, your Honour, I do want to refer to it and then I will get off the foreign cases but, with respect, it does say, and in answer to something that has been put to me ‑ in West, for example, the point was not taken and one was confronted at the end of the day with a conviction in terms of a conspiracy to infringe regulations over a period of time.  The Court of Appeal here is saying the trial court should have appreciated, by looking at that count, that here was a problem, in that, given the time span, is this person really being charged with a number of different conspiracies within the one count, and in West the court, indeed, held that it had and that the conviction was bad for duplicity.

Now, in Davey, as the court then refers to ‑ a dozen lines down on page 856, or 151 of the book:

the conspiracy was alleged to have gone on for eleven years and it was manifest from the form of the count ‑

and so forth, that there was a problem of duplicity.  So, again, the conviction was quashed.  In Griffiths the case went the other way because it was not bad. 

In other words, what I draw from Greenfield is that the focus is not whether there was prejudice or, indeed, even a miscarriage in relation to the accused appellants in West and Davey but, rather, one approaches it, “What is the form of this charge and, indeed, conviction?  Is it duplicitous?”

GAUDRON J:   Well, it really is a more underlying question, “Is there an allegation of one offence, or of more?”  That itself might have been clarified by particulars, because there might well have been several offences if there had been different claims over the period or different acts of dishonesty alleged.  But, when you look at it as it has since emerged, there is really only the allegation of one operative act of dishonesty or one continuous act of dishonesty, so thus there is only one offence.  That is another way of looking at it.  The information is not bad for duplicity unless there are distinct offences alleged.

MR PEEK:   It is my submission that before one gets to the position that your Honour Justice Gaudron has put to me, one needs to ask, “Can one construe this particular charge as a continuing offence?”, and it is only if the answer to that is “Yes”, then what your Honour has put to me would then come into play.  But for the reasons that I ‑ ‑ ‑

KIRBY J:   You say that is incompatible with the terms of the statute?

MR PEEK:   Yes, for those reasons I have already put and do not repeat.  I submit that that is not the correct construction of this particular offence and therefore what flows is ‑ ‑ ‑

DAWSON J:   That might be so if there had to be separate claims, because each claim would have to be looked at differently, but it was not that. There was one claim, as I understand, and correct me if I am wrong, and then a period during which there were receipts pursuant to that claim which continued up to the end of the period alleged.

KIRBY J:   I think your point is that the statute is not in terms of claims but in terms of payments and, therefore, each time you got the payment you committed the offence against the statute.

MR PEEK:   That is what liability fastens upon ‑ ‑ ‑

GUMMOW J:   Under (a) rather than (b), you were saying; is that right?
Under 120(1)(a) rather than (b)?  Subparagraph (a) latches on to the obtaining and (b) on to the claiming.

MR PEEK:   Yes, that is the subsection ‑ ‑ ‑

KIRBY J:   I am sorry, yes, under (b) it is claims.  Which were you charged under?

MR PEEK:   But it is (a) with which are presently concerned, so ‑ ‑ ‑

DAWSON J:   Yes, which emphasises the point.  You can have payment which comprises a number of payments or you can have individual payments but it does not matter in the circumstances there.  But if each claim had to be accompanied by a particular mental state, that is a particular matter, but no one is suggesting each payment, comprising a total payment, has to be accompanied by a different mental state, do they?

MR PEEK:   I think your Honour knows what my submission is on that, so, obviously, I do not take the Court’s time to repeat all of that.  I simply say ‑ ‑ ‑

KIRBY J:   Could you just clarify it for me: was your client charged under 120(1)(a) or (b)?

MR PEEK:   No, (a).  That is clear from the terms of the complaint, which is in the appeal book.

DAWSON J:   That might be a convenient time, Mr Peek.

MR PEEK:   If the Court pleases.

DAWSON J:   The Court will adjourn until 2.15 pm.

AT 12.54 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

DAWSON J:   Yes, Mr Peek.

MR PEEK:   If it please the Court, I wonder if I can go direct to paragraph 6 on page 2, the principles for which the appellant contends, and refer to just two of the Australian authorities mentioned there.  First, the case of Johnson v Miller (1937) 59 CLR 467 and, in particular, first of all, a passage in the judgment of Justice Evatt at 498 of the report and page 120 of the book.

KIRBY J:   This is one of the first cases every junior lawyer looks at.

MR PEEK:   Well, I am not going to spend too much time on it.  I just want to go to two brief passages, if I may, your Honour, rather than deal with the facts or anything like that.  Just in the judgment of Justice Evatt, at that page 498, where his Honour says, halfway down:

I appreciate fully that the present appellant may have no merits except the legal merits with which alone we are concerned.  But, as the matter was mentioned in argument, I will add that I can see no great difficulty in the proper enforcement of sec. 209(1) ‑

and he goes on there about the Licensing Act and Martin v Osborne, and then, towards the bottom, the last three lines:

In all such cases, however, the fundamental principle is that a specific charge has been stated and is known to the court, to the defence and to the prosecutor.

Although the course I now suggest may lead to a multiplicity of charges, it would in the circumstances suggested by Mr Hannan be entirely proper, it would be in no sense an abuse of the court’s process, and a defendant could have no reasonable objection.

Now, that is the general approach for which we contend. 

In relation to the judgment of Justice Dixon, can I go to just a very short passage, at 483 or 112 of the books pagination, and it commences about a third of the way down that page, talking about the Licensing Act provision, his Honour says:

The provision appears to me to impose upon the licensee for each person found upon or seen leaving the premises a distinct liability as for a separate offence.  Perhaps the generality of this statement needs qualifying by one exception.  For, possibly, if a number of persons is found upon or coming out of the premises at one time and they are acting in combination, their presence does not constitute more than one offence.  As they are jointly there, they may be regarded as together satisfying the condition which constitutes that particular element in the offence and not as providing separate instances of that element.  But I am unable to agree in the view that the presence on the premises, or the departure from the premises, on distinct occasions however close in point of time of several persons acting independently may be treated as constituting or evidencing but one offence.  They are repetitions, not continuations, of the state of facts which exposes the licensee to penal liability if he fails to prove one or other of the three matters of exculpation.

KIRBY J:   How do you distinguish the drug trafficking case, then, or that line of territory?

MR PEEK:   Your Honour, it is my submission that it can certainly be argued that those drug trafficking decisions should be reviewed by this Court, but I do not go so far as to make that submission in this case, because I submit that it is a question of construction of a particular offence and those cases turned on the court’s construction.  There was, within the idea of trafficking, an idea of continuity, a continuing offence, and it was on that construction that the court proceeded.  Now, whether that is right or wrong is perhaps for another day, because my contention is, there is nothing similar in this particular offence that would give rise to that construction.

Now, in relation to a question of making false statements, can I take the Court to the second Australian decision that I foreshadowed and that is Dillon v Chin.  That appears at page 208 of the book; a decision of Justice Pincus in relation to section 53(c) of the Trade Practices Act.  At page 208, and at page 287 of the report, Justice Pincus says that, about halfway down:

The charges were all but uncontested.  There was no dispute as to the facts.

And the only matter to be discussed was the question of duplicity.  The case involved a charge under that section, concerning the promotion of the supply of services and a representation that such services had certain benefits which they did not.  Then, over the page, about halfway down, one sees that what was alleged was that Mr Chin:

offered to manage an investment by one Jill Lee in commodity futures, and gave her various items of information ‑

in relation to that particular matter.  However, the question arose as to whether he had said various of those things on one or more than one day, and if the latter, whether that would render the matter duplicitous, even although it was all connected with this one venture that he was promoting.  The view of his Honour Justice Pincus was that that did lead to duplicity and, in the course of that consideration, his Honour referred to a number of significant authorities, commencing at his Honour’s judgment at page 290 ‑ ‑ ‑

TOOHEY J:   But Mr Peek, your client is not charged with making statements.  He is charged under section 120(1)(a), namely, obtaining by dishonest means any payment, or other benefit, and the allegation is that by reason of the earlier statement, he obtained payments over a period of time, totalling the amounts alleged in the count.

MR PEEK:   Yes.

TOOHEY J:   That is a different situation altogether.

MR PEEK:   Well, your Honour, it is my submission that the correct analysis of the particular charge under which the prosecution proceeded was that a particular falsity, or false statement, does have to be identified and isolated; that, if it is not - - -

TOOHEY J:   Well, as evidence of obtaining by dishonest means, of course.

KIRBY J:   You relied on the fact that the word of the statute is “any payment”.

MR PEEK:   Yes.

KIRBY J:   Now, is there an Acts Interpretation Act or an Interpretation Act in this State that renders the singular the plural, where it is appropriate?

MR PEEK:   Yes, no doubt ‑ ‑ ‑

KIRBY J:   Why should that not then be construed as, “obtained by dishonest means, any payments” and looking at it as a composite offence?

GUMMOW J:   One, dishonest means the producers ‑ or brings in a number of payments.

MR PEEK:   It is my submission that there is a presumption against that sort of construction and it is just those four lines, for example, in Byrne v Baker, that I have reproduced at page 3 of the outline, namely that when one is approaching the construction of a statutory offence such as this, one adopts that sort of approach, there, namely to construe an offence as a continuing offence, that is a construction which involves a departure from the important principle that crime should be so defined as to enable the accused to know with precision what he is charged with and a construction producing that result should not be adopted unless the language of the legislature requires it.

DAWSON J:   But your client can be in no doubt as to what it was said he did.  What we are talking about is the consequences of that.

MR PEEK:   Your Honour, there was no doubt, for example in Byrne v Baker, that everyone knew what was being put forward.  That was a case where the defendant, a director of a company, was charged with “that he did not at all times use reasonable diligence in the discharge of the duties of his office”, and so one might think that that sort of a charge might be said to have the hallmarks of a continuing nature.  Now, the Full Court of the Victorian Supreme Court held, in Byrne v Baker, that one approaches the matter, as I say, against that construction and found that one had to look at each item of misfeasance or nonfeasance as a separate offence.

TOOHEY J:   But, with respect, I think you are losing sight of what is being put to you, Mr Peek, which is that the Act relied upon by the Crown was the earlier statement which, if the case was made out, constituted dishonest means and, as a consequence, the appellant, it is said, obtained money on a number of occasions, which is quite different, as I would see it, to Byrne v Baker.

MR PEEK:   Your Honour, it is my submission that it was not open to the Crown to do that for the reasons that ‑ ‑ ‑

TOOHEY J:   That is the argument, I understand that.

MR PEEK:   That is the argument, your Honour, and that Byrne v Baker and, indeed, Chugg v Pacific Dunlop - I do not take the Court to that - but it is on the same sort of charge and with the same result.  Similarly, Ex Parte Graham; Re Dowling which I refer to at page 3, that was the case of a charge of negligent driving and a question arose there as to in what way one approached that; merely as a continuing offence or whether particular incidents in the course of a driving over a reasonable length of distance had to be isolated and considered.  In other words, could you simply convict for the whole of the period of driving or if there was a perceptible period within that period of driving in which it could not be said that there was negligent driving, did that mean that there were separate charges within it?  The court took the latter approach.

In relation to the cases in New South Wales concerning drug trafficking, I have made my submission on that and those, of course, are the cases of Hamzy and Locchi and perhaps others.  It is my submission that perhaps the approach of the Victorian Court of Criminal Appeal in Giretti which was on the same charge is of some assistance and I wonder if I can go to a brief passage in the judgment of Justice Ormiston at page 38 of the book and this is about a little over halfway down page 129 of the report.  It is after the references to the various cases halfway down, six lines further down or so towards the end of the line:

Crocket J has referred to a number of the cases where a series of acts have been held to be a single activity, transaction or enterprise, whether carried out over a period of a few minutes or many days -

referring to Jemmison v Priddle and Merriman and Wilson.

These cases, which involved claims of what has been “hidden” duplicity, are examined in.....Archibold.  Without wishing to deny the possibility of a single count covering a series of sales or deliveries of drugs at the same place within the course of, say, an hour, it is clear that in the present case the activities alleged against the applicants over the period stated in count 2 were many and varied and could not be said to form part of a single activity or transaction or, possibly, enterprise within the meaning of those cases.

GUMMOW J:   How are they many and varied here?

MR PEEK:   It is not, in my submission, a question of varied so much as the length of the period.

KIRBY J:   Many, but not varied.

MR PEEK:   Yes, that is my submission; many over a lengthy period of time and that is the distinction ‑ ‑ ‑

GAUDRON J:   The transactions - the extent that there is the multiplicity of them, they are on the part of the paying authority really, are they not?

MR PEEK:   Well, yes, but given that the actus reus turns on that, namely the receipt generated by the paying authority, that is my submission, that that gives rise to the multiplicity, yes.

GAUDRON J:   Well, the offence is “obtains” rather than “receives” which suggests some action, some actus reus ‑ ‑ ‑

MR PEEK:   By the appellant.

GAUDRON J:   Yes.

MR PEEK:   Yes, well, that is my submission.

GAUDRON J:   Which is the first claim in this case.

MR PEEK:   I understand that that is the matter I have to meet but my submission is that you have to isolate that in relation to each such receipt.  There has to be a separate actus reus and a current mens rea.  So, that is the submission as to the approach to a suggestion that a continuing offence is involved and that one simply cannot apply a Merriman-type test other than in the situation in which the multiple acts are so close in time, place and type that it would be nonsense to say they did not constitute one transaction.  Then, in relation to repeated thefts or conversion, it is my submission ‑ ‑ ‑

DAWSON J:   You have really covered that, have you not?

MR PEEK:   I think I probably have largely, your Honour, that it is only in a situation where it can truly be said that the acts of theft are on one occasion that one can charge it within one count otherwise there should be separate counts.

KIRBY J:   If the law is unclear on this matter, is there anything other than what you mentioned before lunch why a strict rule should, in practice, be favoured?

MR PEEK:   Is that in relation to theft or generally?

KIRBY J:   No, generally, because your propositions are general.

MR PEEK:   Yes, well ‑ ‑ ‑

KIRBY J:   Apart from the sorts of considerations that are mentioned in Johnson v Miller that a person accused of criminal offences should go to court knowing with particularity so that they can object, they know what they have to meet, they can run their trial ‑ ‑ ‑

MR PEEK:   Your Honour, if one does not have a strict rule for which I contend, one perhaps gets into the situation encountered in Weinel v Fedcheshen and that, of course, was the situation that I refer to at the top of page 2 where the prosecution did charge 60 counts and counts 2 to 60, in fact, did refer to each of the obtainings so that that is the process for which I contend in this case that that is what should be done but what the prosecution did, apart from those 59 counts, was to also charge one compendious count and a verdict was taken simply on that compendious count.

Now, you then had a situation where, on appeal, the appellate judge was in doubt as to whether, in fact, all of the 59 transactions had been established and, indeed, his Honour felt that that was not so.  So, you then are faced with a situation of whether such a count can be upheld and, if so, what are the ramifications in relation to penalty.  Now, in my submission, that is an unsatisfactory position and it is so much easier to simply charge the 59 counts as Justice Evatt, indeed, advocated in Johnson v Miller and that the course that Justice Perry took in Weinel v Fedcheshen of what appears to have been a broad axe approach in relation to penalty lacks the required specificity for a criminal prosecution.

So that, in answer to your Honour Justice Kirby, it is the character of the criminal prosecution as distinct from civil proceedings upon which I rely; that the prosecution choose the way in which they lay their charges; that there is nothing to stop them laying separate charges in relation to each of the obtainings as was done in Weinel v Fedcheshen; that by doing so you focus everyone’s attention on the question in relation to each such obtaining, guilty or not guilty, and by thus doing so, you truly calculate the extent of criminal offending.  If you are simply reduced to one count over a long period of time and a verdict of guilty is rendered, much can be left uncertain as to the exact nature of ‑ ‑ ‑

DAWSON J:   Now we are going over the same ground.

MR PEEK:   That is my statement of principle, your Honour, and those are my submissions on it.

DAWSON J:   Thank you very much.  Mr Smith?

MR SMITH:   If the Court pleases.

DAWSON J:   Now, we have covered the ground fairly completely, I think.  Your submissions can be contained within a small compass, I imagine.

MR SMITH:   I think I can, your Honour, and I take it, therefore, your Honours, that you have the file history of section 120.

DAWSON J:   Yes, we do.

MR SMITH:   There are three formulations of the section there.  It is the 1991 one that applies.  We do not contend that it is of any great assistance to your Honours, the way in which that legislation has been slightly changed, but it has.  Your Honours, attached to that is the way in which the Act works and that is relevant to another point which I will come to very quickly, namely, that the payments are made and to stop them a certain procedure has to be gone through to prevent the payments actually coming to a halt and, for instance, the point made by my learned friend, Mr Peek, that the psychiatrist, Dr Cotton, provided a report saying that this man was fit and ready to go back to work, that was used as the machinery to start the cessation of the payment.  But that, in fact, was opposed by the appellant in this case and I will come to that in a minute to address the evidentiary base from which my learned friend, Mr Peek, leapt into the argument that there was impermissible duplicity.  Your Honours have my summary of argument too, I think, and I will not labour that but can I commence by ‑ ‑ ‑

KIRBY J:   The scheme of the Compensation Act is one of periodic payments.

MR SMITH:   It is, your Honour.

KIRBY J:   The scheme of the offence is one which attaches, at least in possibility, to a particular periodic payment.  It could just be one.  The time limit indicates that you have got to have that with some precision because you might get out of time.

MR SMITH:   Yes, your Honour.

KIRBY J:   Now, why is it not the proper construction of the Act that each time a payment is obtained that that is the offence and why is it not preferable that you should have to plead it in that way; charge it?

MR SMITH:   Your Honour, in this particular case there was, in our submission, really one obtaining of all those benefits, if you like, or all those payments by reason of one continuing pretence of incapacity.  It was, in our submission, an appropriate case for what is called a compendious charge. Your Honour, it is not even necessarily a compendious charge.  You could take the view that this is one single offence, one continuing pretence of incapacity, an act of dishonesty, which produces a series of payments over the period charged here, October 1992 to October 1993.

KIRBY J:   But it tends to wrap it all up and look at it in its generality instead of concentrating the mind, as the statute seems to, on the particular payment.

MR SMITH:   Yes.

KIRBY J:   The danger might be, including for the running of the trial and the punishment after conviction, that you look at the entirety instead of looking at the particularity.  Now, criminal law is particular, generally.

MR SMITH:   Yes.  Your Honour, that could be said of this but can I just move to deal with this question because I think I answer, in part, your question, your Honour Justice Kirby, by dealing with this question of the lack of complaint at the trial.  Your Honours, this was not a case of a mere lack of complaint at the hearing about the form of the charge, there was a distinct agreement by counsel as to, really, the very matter canvassed here.  Your Honours, if you go to the appeal book ‑ ‑ ‑

KIRBY J:   This was not counsel, this was a solicitor who says that he did not know of the point and would have raised it if he had known ‑ ‑ ‑

MR SMITH:   No, this was counsel, your Honour.

KIRBY J:   At the trial, was it?

MR SMITH:   Counsel at the trial, experienced counsel.  Your Honours will see at page 3 of the appeal book there is a statement of agreed facts.  Your Honours, that was a document prepared by the prosecution as a prelude to the trial and it had the effect, in a way, of providing particulars to the appellant and it also addressed, if you go to paragraph 15 on page 6 of your book, your Honours, in my submission ‑ ‑ ‑

DAWSON J:   Actually, paragraphs 14 and 15.

MR SMITH:   Paragraphs 14 and 15.  Your Honours, it addressed, if you like, the very point of wrapping the payments up into one and it addressed the very point of those payments having been made as a result of, as the words say here, “continuing representations of incapacity”.  If your Honours please, in that sense this case is very much like the cases of Hamzy and Locchi where, in both those cases, if I could take your Honours quickly to Hamzy, page 199 of your case book ‑ ‑ ‑

GUMMOW J:   Was this pointed out on special leave?  You did not appear on special leave in this Court, did you?

MR SMITH:   I did not, no, your Honour.

TOOHEY J:   It does not appear to have been, glancing at the transcript.  It is perhaps a pity that it was not.

MR SMITH:   Yes, indeed, your Honour.  I think submissions were made that purported to wrap that up without really referring the Court to that in particular.  Your Honours, my submission is that given that document and given those two paragraphs, the only issue left to the learned special magistrate was the question of dishonesty and whether the means by which these payments were obtained were dishonest.  The question of causation and inducement went .  The question ‑ ‑ ‑

DAWSON J:   Well, you do not need to take that - you have made the point you wanted to, not just by something in the case.

MR SMITH:   I will not labour that then, your Honours.  Could I take your Honours to the case of Hamzy and, in particular, to page 199 of your booklet about point 5 of the way down the page.  His Honour the Chief Justice there draws attention to the fact that no objection was taken to the form of the indictment at any stage and more than that there was a 23‑page outline of the Crown case proffered.  If your Honours go to page 204 of your booklets, your Honours will find that his Honour then uses that fact to demonstrate that the appellant in that case knew very well the case against him and that there was no ‑ ‑ ‑

GUMMOW J:   What do we get out of that?  We know the appellant knew this case - paragraph 14 and 15.

MR SMITH:   Yes, your Honour.

GUMMOW J:   Why do you buttress that by referring to what the Chief Judge at Common Law said in a New South Wales court in another case?

MR SMITH:   Yes, all right, your Honour.

KIRBY J:   I think the point put against you is you are approaching it as if this is a question of injustice but we began after lunch by reading Justice Evatt’s statement in Johnson v Miller, that the question is not the injustice, the question is the technical correctness of the procedure and the accused is entitled to approach the court with the particular clarity of what it is that he or she has to meet.  That is the case that is put against you.

MR SMITH:   Indeed, your Honour, but implicit in that is that the injustice of the appellant not knowing the charge against him and the uncertainty of not seeing it for what it is, is founded in fairness.

KIRBY J:   But there are cases in England where the courts have said it does not matter that the point was not reserved at the trial, that it goes to the integrity of the process.

MR SMITH:   Although, your Honours, could I suggest that the comments of the House of Lords in our first case, Merriman, and Chief Justice Widgery in Jemmison v Priddle, to the effect that practicalities and convenience, from the prosecutions point of view, balanced against fairness and precision from the man charged point of view are considerations.  Your Honours, the point I made there was simply that in the end there was no unfairness, there was no lack of precision and that is the only point I wish to make. 

Your Honours, can I just address what my learned friend opened with quickly?  He drew to your attention the fact that this appellant was interviewed by the police on 27 June and what was flagged to him there was that he was going to be reported for offences such as these that he was charged with.  Your Honours, in some respect, that was offered to you to demonstrate that a rolled‑up charge or a compendious charge such as this bore examination because from that point on perhaps different considerations applied. 

Your Honours, the learned magistrate found, for good reason, that the dishonest pretence of incapacity persisted after that time and, your Honours, it did.  This appellant continued to consult a psychologist who was reporting to the hospital - and this is in the evidence - through until September 1993.

DAWSON J:   The finding of fact of the magistrate is enough, is it not.

MR SMITH:   Well, your Honours, I do not go behind that then.  There was good reason for the magistrate’s finding the way it was.  Your Honours, the written outline really addresses all the matters that my learned friend raised.

DAWSON J:   Well, you adopt what is said there and rely on it?

MR SMITH:   My written outline, which you have, is quite fulsome, your Honours, and unless there is some specific answer ‑ ‑ ‑

TOOHEY J:   I hope it is not fulsome.

MR SMITH:   Well, it has the potential of being fulsome.  There are numerous cases referred to there, your Honours.  Unless there is some

specific matter that has arisen out of my learned friend’s argument that I need to address, I will not go any further, your Honours.

DAWSON J:   Thank you, Mr Smith.  Do you wish to say anything in reply?

MR PEEK:   No, nothing in reply, your Honour.

DAWSON J:   Thank you.  The Court will consider its decision.

AT 2.47 PM THE MATTER WAS ADJOURNED