Walsh v Tattersall

[1996] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A41 of 1995

B e t w e e n -

PATRICK BERNARD WALSH

Applicant

and

GEOFF TATTERSALL

Respondent

Application for special leave to appeal

BRENNAN CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 24 APRIL 1996, AT 4.20 PM

Copyright in the High Court of Australia

MR D.H. PEEK:   May it please the Court, I appear for the applicant.  (instructed by D.P. Waye)

MR M.L. ROBERTSON, QC:   May it please the Court, I appear with my learned friend, MR D.C. LOVELL, for the respondent.  (instructed by Finlaysons)

BRENNAN CJ:   Yes.  Mr Peek, we will call on Mr Robertson first.

MR ROBERTSON:   If the Court pleases.  The primary submission of the respondent in this application is that the rule against duplicity in this country is settled; that there is no inconsistency between any of the English authorities that have been relied on in State appellate courts and Australian authorities.  That being the case, there is no special leave point that is available to the applicant.

McHUGH J:   Why does not the general administration of justice require that there be a grant for special leave in this case?  Do you contend that this judgment is correct?

MR ROBERTSON:   Yes, we do, your Honour.  The basis upon which we say it is correct is that we say in the first instance that the Full Court applied the principles relating to the rule against duplicity and adopted what is the appropriate rule in this country and, secondly, it applied it to the circumstances to conclude that in this particular case a compendious charge or a continuing charge involving a number of different payments or obtainings did not breach that rule and we say that the ‑ ‑ ‑

McHUGH J:   On an appeal you might be able to convince me that it was a continuing offence, but at the moment it seems to me that it is strongly arguable that upon obtaining each payment or benefit under the Act an offence is committed and it is a separate offence and under section 46 of the Act a prosecution for that offence must be committed within three years after the date in which it is committed and each time a payment is obtained there is another offence, but here you have brought together a whole series of payments and said there is just one continuous course of conduct.

KIRBY J:   That, for what it is worth, is also my own feeling.  You might succeed in the appeal, but it is a matter of real doubt and it is a matter of the general administration of justice and you better reserve your arguments for the appeal.

BRENNAN CJ:   Your argument is not disposed of yet, Mr Robertson.

MR ROBERTSON:   It is well and truly on the downward trend, if I could suggest to the Court.  Could I just take your Honours to the comments, first of all, of Justice Prior where he summarised the prosecution’s case.

BRENNAN CJ:   Mr Robertson, we can go to the judgments, but there is a question of principle that has to be addressed.  The first question of principle is, what are the elements of the relevant offence?  When is the relevant offence complete?  Now, that is a question of the construction of the statute I would have thought.

MR ROBERTSON:   Yes, it is, your Honour.

BRENNAN CJ:   Is an offence complete on each occasion when money is received?

MR ROBERTSON:   For the purpose of this argument let us assume that that is the case, but that does not, on the authorities that we have in our summary, suggest that you cannot still have a continuing or compendious charge which charges one offence dealing with a common criminal enterprise or a criminal enterprise that had its genesis at the commencement of the period of obtaining and then that particular enterprise continued and was the actual source from which all the obtainings followed and that is the approach that was taken ‑ ‑ ‑

BRENNAN CJ:   Is that not a question of public importance that should be considered by this Court?

MR ROBERTSON:   Your Honour, there are many authorities, at least of State courts, which indicate that where you have statutory offences which may indicate that an offence occurs on, as in this case, each obtaining or, for example, in Medwell’s Case where there is a question of harassment and whether there should be one offence or a continuing offence or in the drug trafficking cases that there are many statutory authorities which suggest that, in the circumstances - and that is all that really the courts say - one can have either the circumstances indicate there should be separate charges for each, in this case, obtaining, or in the case of trafficking, for each item, or occasion of trafficking, or that one can have a continuous criminal enterprise which would allow one offence to be charged.  Now, assuming that to be the case ‑ ‑ ‑

McHUGH J:   That seems to me to raise the real problem.  Your argument or your analysis seems to me to raise the critical question in this particular case.  It is one thing to say when you are dealing with offences such as harassment, trafficking, supplying and other general terms which may describe a course of conduct and, on the other hand, a very specific statute like the Workers Rehabilitation and Compensation Act, section 120, which is talking about obtaining by dishonest means.  You then translate that to obtaining dishonestly as though that was a new offence or a different offence or the same offence, if it matters, and the Full Court seems to have accepted your argument.  Now, that seems to me to raise very important questions of principle.

MR ROBERTSON:   With respect, your Honour, what we say is that one does not look to the terminology expressed in the legislation itself and simply say, “That is the key to determining whether there should have been a compendious charge or not.”  The authorities indicate that it depends entirely on the circumstances as to whether one is able to charge one charge on a compendious form or whether one has individual charges.  And, what we say here is whether the section is as explicit as it is in saying obtaining, the circumstances were such that in this case that one could, in effect, have an entire charge dealing with each of those obtainings if you establish that there was a common criminal enterprise that was initiated at the start and each obtaining was sourced from that common criminal enterprise.

Your Honours will need to be aware that in this case there was never any suggestion that there was a different defence for any of the obtainings that were part of this charge in the course of the these proceedings, that the defence that was put in this case was simply that, “I was incapacitated for work as at August 1992 because of my anxiety and depression and, as a result of that, I was entitled to each of the payments that I received following that time.”  And we say that that is a question of circumstances, that the Court is entitled to look at that and say, “One, should it, in these circumstances be fair to the defendant that there be separate counts or is it acceptable that there be just one count.”  The circumstances of this case and the defence that was put up indicated that, on the issue of fairness, and on the construction of the legislation, that was an acceptable way of dealing with it.

That is what we say the Full Court in this case accepted and adopted, that one has to look to the circumstances.  Where there is no suggestion of any other defence than the defence that was put in this case that, “I was incapacitated before the first payment and each of those payments just followed as of right from that point in time”, then we say it is a question of an issue of fact and not an issue of law.

McHUGH J:   It strikes me as a strange doctrine that whether duplicity exists or not depends upon what the defence of the accused is.

MR ROBERTSON:   Certainly that is not the submission we put.  What we are saying is, on the question

McHUGH J:   That is what it seems to be.

MR ROBERTSON:   Well, what we are saying, if your Honour pleases, is simply this, that where you have an offence founded in legislation, that there are two ways of dealing with it depending upon the circumstances.  If, in fact, it became apparent that the defence was such that there were different defences relating to each, or even one or two or three of those attainings, then it would be for the court to say, “Look, this is not the way to deal with it.  This is one for separate offences”.  But where there is a compendious charge ‑ ‑ ‑

McHUGH J:   Could I ask you this one last question?  Could you have prosecuted this offence three years after the last payment?  If you could, it would mean that you were able to rely on a large number of matters which were protected by section 46?

MR ROBERTSON:   Your Honour, I cannot answer that.  I would have to go back to section 46.

McHUGH J:   It says:

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

MR ROBERTSON:   The answer is:  I do not believe we could have gone outside that three year period.

McHUGH J:   So that means you could not have prosecuted for any of the earlier payments?

KIRBY J:   That rather highlights the strong arguability of the point and its importance.

MR ROBERTSON:   I cannot put it any higher than I have, that the section itself by its very language does not suggest that a charge of this nature cannot be laid; that is the first point we would make.  The second point is that the authorities indicate that it depends upon the circumstances on each particular case as to whether a charge of this nature is valid or not and, third, we say that the circumstances that existed here were such that it was

appropriate for this particular charge to be laid in this way and, fourthly, there is no evidence that there was any injustice incurred as far as the defendant was concerned in either the defence of the case or, alternatively, the conviction that was finally made against him.  They are the points that we put in defence of the application, if the Court pleases.

BRENNAN CJ:   Yes, thank you, Mr Robertson.  Special leave will be granted in this case.

AT 4.34 PM THE MATTER WAS CONCLUDED