Reasons
17In the course of the hearing of the application for leave to appeal, the Crown confirmed that it was relying only on deemed supply. In other words, it does not rely on the third alternative path to a guilty verdict of possession of the tablets in the utility for the purposes of supply. Accordingly the possibility that a jury could return a guilty verdict on count 1 if six of its members were satisfied that the applicant possessed the 5 tablets in the utility for the purposes of supply and the remaining six were satisfied that he possessed the 224 tablets in the pantry, has been removed by the Crown's concession.
18In these circumstances, there is, in my view, no arguable ground for duplicity since it follows, as the reasons of the Court below make clear, that any guilty verdict requires that the jury was satisfied beyond reasonable doubt that the applicant was in possession of at least the tablets in the kitchen pantry.
19Had the three paths to a guilty verdict remained open, it would have been a nice question whether the indictment involved duplicity. The object of the rule against duplicity has always been that there should be no uncertainty as to the offence charged: Chief Constable of Norfolk v Clayton [1983] 2 AC 473. The rule against duplicity prohibits a single count in an indictment charging a person with the commission of more than one offence: S v The Queen at 280-281 per Toohey J, citing Archbold, Pleading, Evidence and Practice in Criminal Cases, 43 ed (1988), page 46.
20The Act, by s 25, creates an offence of supply of a certain type of drug. There is only one offence alleged: the supply of methylamphetamine. As Simpson J (Hoeben J agreeing) said in R v Yildiz [2006] NSWCCA 97; 160 A Crim R 218 (Yildiz) at [29] of s 3 of the Act:
"[It] does not create a series of different offences of supplying prohibited drugs. It creates a single such offence, which may be proved in a variety of ways. One mode of proving supply is to prove a relevant agreement; another is to prove possession of the relevant quantity."
21The facts in Yildiz were, however, materially different from the instant appeal. In Yildiz, the Crown case was put on two bases: first that the appellant had agreed to supply drugs to a man referred to as Thomson; and secondly, that there was a deemed supply because he was in possession of a traffickable quantity of the drugs found in the boot of his car. The drugs the subject of the agreement were the same drugs that were found in the boot of the car.
22In Yildiz, Simpson J (Hoeben J agreeing) considered at [30] that, notwithstanding the offence charged was a single offence of supply, the two different ways of proving supply: possession of a traffickable quantity or an agreement to supply were:
"in reality two different offences. They were not alternatives. Nor is it correct, as I initially thought, to characterise them as different modes of proving the same charge, which would or could amount to simple alternatives. To this extent the directions suffered from the defects identified in S v The Queen: it is not possible to be confident that all members of the jury convicted on the basis of the alleged agreement, or, alternatively, that all members of the jury convicted on the basis of possession. Thus, the unanimity required may be absent."
23Notwithstanding the potential for the lack of requisite unanimity, the majority in Yildiz found that although there was a latent duplicity in the directions given, there was no such latent duplicity in the indictment itself. For other reasons, related to the strength of the Crown case based on the deeming provision, the appeal in Yildiz was dismissed.
24The instant case is, in my view, distinguishable from Yildiz because in the instant case the drugs in the pantry that are the subject of the deeming provision, although the same type of drug, methylamphetamine, are not the same drugs as were found in the utility which are said to have been supplied because they were in the applicant's possession for the purposes of supply. Accordingly, the majority's conclusion in Yildiz that there was no latent duplicity in the indictment is not, in my view, determinative of the instant appeal.
25The cases draw a distinction, for the purpose of determining whether a count in an indictment is bad for duplicity, between alternative factual bases of liability on the one hand and alternative legal formulations of liability based on the same or substantially the same facts: R v Cramp [1999] NSWCCA 324; 110 A Crim R 198 (Cramp) at [65] per Barr J, Sully and Ireland JJ agreeing.
26In the instant case, but for the Crown's concession, the Crown could prove supply in any one of three ways: two methods involve proving possession of the drugs in the pantry but the third requires the Crown to prove that the applicant possessed the drugs in the utility for the purposes of supply. I consider that these amount to different factual bases of liability rather than alternative legal formulations of liability based on the same or substantially the same facts.
27I do not consider that the analogy with manslaughter is entirely apt. First, there are strong historical and practical reasons for not differentiating between the ways in which manslaughter can be established: see the discussion in R v Dally [2000] NSWCCA 162; 115 A Crim R 582 (Dally) at [64] per Smart AJ, Sully J and Carruthers AJ agreeing. These reasons include that manslaughter is available as an alternative verdict to murder although it does not appear on the indictment as a separate and alternative count and that it is generally inadvisable for a trial judge to question the jury as to the basis of a verdict of manslaughter, it being a matter for the sentencing judge to find the relevant facts consistently with the jury's verdict: R v Isaacs (1997) 41 NSWLR 374 (Isaacs). Secondly, manslaughter is regarded as being sufficiently complicated for juries without introducing a further complication to the directions required to be given: Dally at 64, (e) and (j). Thirdly, the factual basis for the different types of manslaughter is commonly the same or similar: as in Cramp at [65] per Barr J. This is, however, not invariably the case: see R v Klamo [2008] VSCA 75; (2008) 184 A Crim R 262, where the acts said to constitute the unlawful and dangerous act causing death occurred on two separate occasions.
28The two categories of case referred to above were summarised in the following terms in Walsh v R [2002] VSCA 98; 131 A Crim R 299 by Phillips and Buchanan JJ at [57] with whom Ormiston JA agreed (footnotes omitted):
"[T]he cases give rise to two situations at least . . . The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on "unanimity" about one or other or more of those bases, at least if they do not "involve materially different issues or consequences". (How far in cases of murder or manslaughter this qualification extends - having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales - is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend "upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence". . . "
29But for the Crown's concession, I consider the instant case to be in the second category: namely there is one offence charged but two acts are relied upon, proof of either one of which would entitle the jury to convict. I do not consider that the requisite degree of unanimity would be present if, say, six members of the jury were satisfied of the applicant's possession of the drugs in the pantry (thereby attracting the deeming provision) and the remaining six were satisfied that the applicant had possession of the drugs in the utility for the purposes of supply.
30Because of the Crown's concession which removes any arguable duplicity, it is not necessary to decide whether this conclusion requires count 1 of the indictment to be quashed or whether the matter were better left to the directions of the trial judge.
31I respectfully agree with the observations of the Court below that the form of the indictment would not be an impediment to sentencing. If the jury returns a verdict of guilty of supply, it will be a matter for the sentencing judge to make findings of fact, consistent with the jury's verdict and the evidence at the trial, on the basis of which a sentence will be imposed, consistently with the principles in Isaacs at 380 and R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ.
32The orders I propose are:
(1)Extend time for filing the application for leave to appeal.
(2)Leave to appeal granted.
(3)Appeal dismissed.