Latent Ambiguity
52 On the authority of judgments in the High Court referred to above, (ie Johnson v Miller, S v The Queen and Walsh v Tattersall; see also Stanton v Abernathy (1990) 19 NSWLR 656) this Court must proceed on the basis that latent ambiguity or latent duplicity falls within the concept of duplicity which, in an appropriate case, can lead to the quashing of an indictment. It is by no means clear what is the ratio of the recent High Court authorities. The judgments which doubt whether some of the matters discussed can be characterised as raising a "duplicity" issue at all, have force. This is itself suggested by the use of terminology such as "latent ambiguity" in preference for "latent duplicity". (See eg Stanton v Abernathy at 669G.)
53 Latent ambiguity can be identified when an indictment does not suggest duplicity on its face, but the way in which the Crown case is to be, or has been, conducted can be seen to subject the accused to the possibility of being convicted of one of a number of distinct offences. In the context of a charge of conspiracy this principle involves the exposure of an accused to being convicted of more than one conspiracy.
54 As Jordan CJ put it in Ongley at 117:
"A count in conspiracy must comply with the general rule of charging one offence only … The jury … cannot find some of the accused guilty of a conspiracy to effect only some of the improper purposes and other of the accused guilty only of a conspiracy to effect only other of the improper purposes; because to do so would be to find the existence of two conspiracies under a count which charges one only; and this, the law does not allow".
55 Ongley was a case in which the indictment was not duplicitous but the trial judge's directions to the jury permitted it to find more than one conspiracy, which was impermissible.
56 In the light of the express provision found in s 11.5(6) authorising the Court to dismiss a charge of conspiracy on the basis "that the interests of justice require it to do so", it is difficult to identify any separate role for the principle of latent ambiguity with respect to a charge of conspiracy under the Code. As I have noted above, there is no appeal from his Honour's rejection of the applicants' case under s 11.5(6). Nevertheless, no submission has been made to this Court that s 11.5(6) provides exhaustively for these matters.
57 Duplicity is a reasonably clear concept, even in its latent form. It is not clear why it should be deployed as a label that covers principles - like the principle of a fair trial - which would have independent operation to the same effect. However, in the reasoning of recent majority judgments in the High Court, the law with respect to duplicity has been stated to serve a number of purposes of which the principle of a fair trial is one. (See eg S v The Queen esp at 284-286.)
58 The applicants' submissions on latent duplicity could all arise under s 11.5(6) of the Code. For present purposes, the relevant findings of fact with respect to this aspect of the applicants' submissions were made by Whealy J in the context of dealing with the s 11.5(6) issue agitated before him.
59 Mr Walker stated that his clients came to this Court for the sole purpose of having the present indictment quashed. That would be a rare order even in a case where some form of latent duplicity had been identified. As Kirby J said in Walsh v Tattersall at 110 (references omitted):
"A finding that the rule against duplicitous charges has been breached does not oblige the court, coming to that conclusion, to dismiss the charge. Where the defect is one of patent duplicity, the proper course is to put the complainant to an election to remove the embarrassment. Where the defect is latent and the particulars do not remove it, the court may direct further particulars; require the complainant to elect and to identify the alleged offences; and/or exercise the power to permit an amendment. If the latent defect, once exposed, suggests a risk that the accused might not have a fair trial on the charges as pleaded, the court should require correction."
60 In R v Mitchell [1971] VR 46 the Full Court of the Supreme Court of Victoria dealt with a submission that it was possible on the evidence in that case that the jury might find more than one conspiracy on a single count of conspiracy. Their Honours said at 57:
"This is not an argument which goes to the initial validity of the presentment. Such a development creates a situation with which the trial judge must deal."
61 That the appropriate step upon finding even latent duplicity is to put the prosecutor to an election or to provide particulars or to require appropriate directions has long been the position. (See eg Johnson v Miller at 489-490; Stanton v Abernathy at 670-671.)
62 None of the applicants came before this Court seeking an order in the nature of requiring an election, nor for a stay by reason of inability to provide a fair trial. The sole order sought in this regard is an order to quash the indictment. On the latent duplicity argument, this was said to be based on the alleged impossibility, in view of the complexity of the matters that fall to be determined, of remedying the alleged defects in any manner, whether by means of election or particulars or directions.
63 In the present case, it is difficult to adopt the usual approach because of the considerable extension of matters which some of the majority judgments in S v The Queen and Walsh v Tattersall suggest come under the law of duplicity. The case of latent duplicity advanced on the part of the applicants in this case - or "multiplicity", as Mr Walker put it - could be appropriately characterised as invoking the principle of a fair trial, for which remedies directed to avoiding an abuse of process or a dismissal under s 11.5(6) are more appropriate. Nevertheless, on High Court authority, the duplicity label can be applied.
64 Mr Walker did not submit that an analysis of the Crown Case Statement indicated that, as a matter of substance, the Crown should be seen as relying upon more than one agreement. Rather, his submission was that, from the perspective of the jury decision-making process or from the perspective of each individual accused in preparing for and conducting the trial, the nature and complexity of the issues raised is such that the possibility of multiple conspiracies will permeate the proceedings. Furthermore, that will occur in a manner not capable of rectification by directions on the part of the trial judge.
65 The submissions made in this respect could be depicted in the form of a tree diagram commencing with one agreement, which branches out into nine accused, which each branch out into overlapping preparatory acts and which in turn, theoretically, branch out into a variety of possible terrorist acts. It is this multiplicity, by creating an extraordinary range of possible permutations, which enables any person, whether an accused preparing for trial or a juror making a decision, to follow one of the multifarious paths along the tree diagram.
66 Mr Walker accepted that it was the nature of the conspiracy charged that there would be various permutations. To give only one example, it has long been accepted that it is not necessary that all conspirators joined the conspiracy at the same time, nor that they participated in the same way or to the same extent. Nevertheless, Mr Walker submitted that, on the Crown Case Statement in the present proceedings, the scope and range of the permutations was so extraordinary as to justify a conclusion of latent ambiguity or latent duplicity of a character which could not be remedied in the course of the trial.
67 A number of Whealy J's factual findings are pertinent to resolving this issue. In his judgment of 18 March 2008 his Honour said:
"[36] … First, the Crown Case statement is, in general terms, a statement of the evidence it is proposed to adduce in the trial. It is however, very detailed. It is a document that contains some 181 pages of very precise detail. There are approximately 400 paragraphs and over 700 detailed footnotes. I have had the advantage of reading carefully the whole of the Crown Case Statement. In addition I have read and examined carefully the list of the alleged overt acts. I am, of course, conscious that there are already a considerable number of applications to rule certain of the material in the Crown Case Statement inadmissible either generally or against particular accused. I am also aware that there are applications to exclude material from the trial on the basis that it will prove overly prejudicial to one or more of the accused. These various applications have not been argued at this stage an their determination is for the future. For the purposes of the present application, I will in general terms regard the evidence as admissible even though at a later stage some of it may be rejected or excluded."
68 His Honour went on to say:
"[66] … First, I do not consider the conspiracy is vague or amorphous. It is precisely enough expressed. The nine accused, it is said, entered into an agreement to obtain the capacity or capability to prepare for a terrorist act or terrorist acts. This involved equipping themselves with the knowledge, ability and means to prepare for or plan a terrorist act or acts. In furtherance of the agreement, there were attempts to obtain chemicals and other relevant materials, which could be used in the construction of an explosive device; the obtaining (or attempted obtaining) of weaponry and ammunition; and the collection of large amounts of extremist and instructional material.
…
[69] So, the Crown case is that in many areas, although an agreement had been reached and steps were now being taken pursuant to it, to acquire the capacity or capability to prepare for a terrorist act, a number of the acts taken in furtherance of the conspiracy were thwarted either by accurate surveillance police intervention or caution on the part of the conspirators themselves for fear of being detected. There is, however, no uncertainty in relation to the actions alleged to have been taken by each of the conspirators in furtherance of the conspiracy. The uncertainty remains, as it often will with an offence under s 101.6, in that it is unclear as to whether a specific target or targets had been finally selected for the purposes of carrying out any terrorist attack. No decision had finally been made as to whether there would be one attack; or more than one attack. In my opinion, this does not mean that the conspiracy itself is either amorphous or vague. Indeed, the conspiracy is not only precisely stated in the Crown Case Statement, it is clear and simple. Yes, there is the point made by Mr Lange that it is unclear as to whether one terrorist act was contemplated or more than one; and, it is indeed [sic] it may well be that the ultimate target or targets have not been finally selected. But, as I say, the agreement itself is simple enough and easy to perceive and understand.
[70] … The directions that would be needed to be given to a jury in a conspiracy case are, no doubt, extensive. But I do not see them as being complicated to the point of making it difficult for the jury to follow. This would be especially so when the court will have the assistance of an experienced Crown team and very experienced lawyers appearing for each of the nine accused.
[71] I do not see this as a complex trial, at least not in the way in which that expression is usually used. Of course, it is very detailed and there are a considerable number of facts to be proved in the Crown case. But they are not complex facts and they may readily be appreciated by a jury. … One purpose of the present range of extensive pre-trial applications is to clear the landscape of inadmissible material and of material that should be excluded under, for example, ss 135 and 137 of the Evidence Act. It is to narrow and focus the issues. It is to streamline the jury's task. The detailed preparation for the trial, and the anticipated co-operation of counsel in narrowing factual issues, will assist in making the trial a tolerable one for the jury. I do not pretend that it will be easy for a jury. It will be a long trial, and one that will be complicated by the mass of material to be assimilated. But, I repeat, it is not complicated material; there is simply a great deal of it.
[72] I next turn to the issue of sentencing such of the accused as may be convicted. This is obviously a very hypothetical exercise at this stage. I consider, however, that once the overall criminality in the conspiracy is appreciated, it should be possible to accurately perceive and identify the level of association and involvement of any individual conspirator who may be convicted of the charge. The necessary distinctions as to the level of criminality will be able to be made. I have no doubt that, were any of the accused to be convicted, their counsel would be quick and astute to identify relevant points of distinction. I fail to see that there would be any real danger of falling into this error in assessing the penalty to be imposed on any individual convicted of the conspiracy charge. I see no reason why uncharged matters would be taken into account or why the principles of double jeopardy might, in some way, be infringed. The Court would be astute to avoid any such situation. Here, of course, there is only the one charge. There is no suggestion that there will be any later substantive offences charged against these men.
[73] Similarly, I do not think that there is any real risk of injustice of unfairness in that the individual case of some of the accused might be buried under the mass of material generally relating to the conspiracy. In proving the existence of the conspiracy, and in proving acts done in furtherance of that conspiracy, the Crown will be entitled to adduce evidence putting into context the activities of each of the accused. I do not accept, that properly instructed, the jury will be led into error in this way."
69 In the light of these findings by his Honour, which are of a kind with which this Court is reluctant to intervene, the fears expressed in the submissions for the applicants in this regard should not be accepted. There may be numerous permutations, but it cannot be said that, at this stage of the proceedings, it is appropriate, let alone necessary, to conclude that the nature of the Crown case is such that multiple agreements need to be dealt with by the accused or may be found by the jury.
70 Specifically, in the light of his Honour's clear assessment of the facts, this is not a case which falls within the apprehension expressed by Murphy J in Gerakiteys v The Queen at 323:
"Conspiracy must not be allowed to become so amorphous that it will create a real danger of concealed duplicity of charges, so that the accused may be convicted despite the lack of unanimity among the jury members."
71 No such amorphousness exists here. The complexity arises, not from the pleading, but from the scope, nature and extent of the conspiracy alleged and of the overt acts alleged to have been undertaken in pursuance of the single agreement.
72 I am reinforced in this conclusion by the forcefully expressed judgment of Whealy J, based on his Honour's detailed assessment of the Crown case, that a conspiracy charge in the present case was the only way to properly reflect the criminality alleged in the Crown case against the accused (at [42], [57], [58], [63]). As his Honour put it:
"[57] … a substantive charge or charges … would not, however, have adequately revealed the wide-ranging, extensive and ongoing nature of the organisation. The reality of the Crown case, as I see it, is that it is only by means of the conspiracy charge that the full range[,] nature and scope of the agreement and the activities engaged in by the group, if the Crown case be accepted, can be revealed. The filing of individual charges against individual members of the organisation simply would fail to reflect and portray the real nature of what was going on."
73 The implications of the submissions made on behalf of the applicants in this respect is that a conspiracy charge would rarely, if ever, be appropriate in the case of a conspiracy involving many co-conspirators to conduct numerous illegal acts over a long period of time. Our legal system must show itself capable, consistently with the requirements of procedural fairness, of handling cases of such complexity where a judgment is properly open that proceeding for individual substantive offences would not adequately reflect the criminality of the conduct. His Honour's conclusion that that was the case here was not challenged on the appeal. This Court should not interfere with such a judgment made by an experienced trial judge, for articulated and supportable reasons.
74 Of significance for present purposes are the observations of Lord Diplock in Director of Public Prosecutions v Merriman [1973] AC 584, which have subsequently found favour in Australia, where his Lordship said at 607:
"The rule against duplicity, viz. that only one offence should be charged in any count of an indictment … has always been applied in a practical, rather in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise , it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment." (Emphasis added)
75 A conspiracy, by reason of the focus on a single agreement, is the archetypical example of a charge of this character, ie where there is a single "criminal enterprise". In this regard an important authority is the judgment of this Court in R v Hamzy (1994) 74 A Crim R 341, which is not inconsistent with the reasoning in the two majority judgments in Walsh v Tattersall. (See R v F (1996) 90 A Crim R 356 at 360-361; and R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373.)
76 In Hamzy Hunt CJ at CL set out and dealt with submissions raising a number of the different purposes served by the law of duplicity in the context of a case involving multiple occasions of supply of drugs. His Honour concluded at 348-349:
"[T]he Crown is entitled to plead in the one count a charge of supply where it intends to prove a number of individual acts of supply by the accused to different people and at different times, provided that those acts can fairly and properly be identified as part of the same criminal enterprise or the one criminal activity, but the trial court has power to direct the Crown either to elect or to separate the offences where the indictment would otherwise produce an unfairness to the accused. …
I see no reason why the concept of the one criminal enterprise or one criminal activity should be interpreted narrowly. Obviously enough, the fewer the number of individual acts, the fewer people and the shorter the period of time involved, the less likely that there could be any unfairness to the accused, but the issue of unfairness is dealt with separately from the issue as to whether the individual acts could fairly and properly be so identified. In the present case, it would have presented a totally unreal picture of the activities alleged against the appellant if anything less than the total picture had been presented to the jury. According to the evidence, the appellant was constantly involved in the one criminal enterprise of dealing in heroin ." (Emphasis added)
77 In Moussad, which involved a charge of defrauding the Commonwealth by means of multiple dishonest claims for welfare payments, Smart AJ, with whom Wood CJ at CL and Bell J agreed, set out a careful review of the relevant authorities, including Hamzy and cases which have applied it. His Honour concluded:
"[54] The courts in this State have found that 'enterprise' counts have their place in drug supply and fraud cases where it is important to stress the overall criminality. … In order to bring home the full extent of their criminality and ensure appropriate punishment, the quantities from a number of acts of supply have to be aggregated. The enterprise is to supply large commercial quantities of heroin, cocaine or other harmful drugs."
78 This reasoning is in accord with the reasoning of Whealy J in the present case. Hamzy and Moussad have subsequently been referred to with approval. (See eg R v ARD [2000] NSWCCA 443 esp at [159]-[163]; R v Orban [2005] NSWCCA 312 esp at [17]; R v Zampogna [2003] SASC 75; (2003) 85 SASR 56 esp at [28]; R v Lao and Nguyen [2002] VSCA 157; (2002) 5 VR 129; R v Ferguson (No 11) [2005] VSC 527; (2005) 165 A Crim R 337 esp at [19], [24]; R v Poulier esp at [9]-[12].)
79 The conspiracy alleged in the present case is a quintessential example of a joint criminal enterprise. The complexities arise by reason of the scope and nature of the alleged conspiracy. On his Honour's findings of fact set out above, reinforced by his judgment, which I accept, that the alleged criminality cannot be reflected in charges for substantive offences, the various purposes served by the law of duplicity have not been shown to be in jeopardy.
80 Leave to appeal on the ground of duplicity should be refused.